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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-11-08
November
18, 2008
Alex
Friedmann
Prison Legal News
Antioch, Tennessee
The
staff of the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your electronic
mail of October 17, 2008.
Dear Mr. Friedmann:
You
have asked whether records that are related to a public employee's
activities and are maintained on a public agency's computer
system are public records subject to the provisions of the
Virginia Freedom of Information Act (FOIA). Specifically,
you asked about records relating to a letter sent by a professor
at George Mason University (the University), on University
letterhead, signed as a professor of law, and sent to the
United States Senate Judiciary Committee regarding a federal
judicial nomination.1 You stated that when you initially requested
documents related to this letter, your request was denied
on the basis of attorney-client privilege. When you followed
up by asking that the volume and subject matter of the withheld
records be identified pursuant to subdivision B 1 of §
2.2-3704, you received a response asserting that any such
records resulted from the professor's private activities on
his own time and were not public records subject to disclosure
under FOIA.
The general
policy of FOIA expressed in § 2.2-3700 is to ensure ready
access to public records in the custody of a public body or
its officers and employees....The affairs of government are
not intended to be conducted in an atmosphere of secrecy since
at all times the public is to be the beneficiary of any action
taken at any level of government. The definition of public
record set forth in § 2.2-3701 includes all
writings and recordings ... however stored, and regardless
of physical form or characteristics, prepared or owned by,
or in the possession of a public body or its officers, employees
or agents in the transaction of public business. There
is no doubt that the University, as a public institution of
higher education established by the General Assembly, is a
public body, and by extension, there is no question that a
University professor is a public employee.2 Therefore
any records prepared or owned by, or in the possession
of a University professor are public records
under FOIA if they are in the transaction of public business.
However, as stated in the first opinion published by this
office, the phrase in the transaction of public business
is not defined in FOIA. In examining a similar issue, that
opinion stated that electronic mail messages between members
of a public body that are not related to the transaction of
public business are not public records under FOIA,
and therefore are not subject to its mandatory disclosure
requirements. The fact that electronic mail messages go through
a government agency’s electronic mail database does
not, by itself, make them public records. It is also the subject
of those electronic mail messages that determines their status
as public records.3
Following
this opinion, the question here may be restated as whether
records related to the letter in question are records in the
transaction of the professor's public business as a University
employee. That such records were prepared by the professor
and maintained on University computers satisfies only part
of the definition of public record. If, in addition,
the letter was written in the transaction of public business,
then it would be a public record, meeting the statutory
definition in full. It then follows that other records prepared,
owned, or possessed by the professor that are related to the
letter would also be in the transaction of public business,
and also would be considered public records subject
to FOIA. It is therefore necessary to examine the letter and
its subject matter in greater detail.
The
first thing one notices when viewing the letter is that it
appears to carry the imprimatur of the University: it was
written on the professor's University letterhead, uses the
University logo in oversized font, bears a University return
address and contact information, and identifies the author
as a "Professor of Law." These features convey an
official appearance, and may be viewed as indicia that the
letter was in fact written in the professor's capacity as
a public employee of the University. However, the subject
matter of the letter addresses points made in an article published
online by a commercial news organization, regarding the conduct
of a potential federal judicial nominee in his profession
as a corporate attorney. The professor indicated within the
letter itself that he wrote it in the interest of correcting
perceived errors in the article, without having been solicited
for his opinion, and without supporting or opposing the nomination.
It does not appear from the subject matter or content of the
letter itself that it was written as part of the professor's
duties as a University employee, to be used as a teaching
aid or otherwise in furtherance of his professional responsibilities
at the University. As stated in the University's second response
to your request, which you included with your message to this
office, it is [the professor's] contention that the subject
activities were on his own time. You may be aware that this
University is not unique in permitting professors to pursue
independent professional activities as a means of enhancing
their instructional abilities. Given the content of the
letter itself and this assertion by the University, it appears
that the letter and records related to it were prepared outside
the context of the professor's University employment, not
for a public purpose, despite being on University letterhead.
Therefore, under the facts described, it appears that the
letter was not prepared by the professor in the transaction
of public business, and that the requested records thus
are not public records subject to FOIA.
However,
this conclusion is incomplete without a cautionary note regarding
the use of public resources by public officials and employees.
The letter at issue was written on University letterhead by
a University professor, which lends it the appearance of being
a public record written by a public employee on behalf
of a public body. Assuming there are related documents resident
on one or more University computers used by the professor,
those would carry a similar appearance of being public records
by virtue of having been authored by a public employee using
public resources. However, the definition of public record
for FOIA purposes turns upon the content of a record,
not its appearance. Just because records bear indicia of being
public records, such as a public body's letterhead
and return address, and being stored on a public body's computer,
does not necessarily or automatically make the records subject
to FOIA. The records must also be in the transaction of
public business. While records such as the letter at
issue here do not meet that second requirement of the definition,
it is easy to see how they could be perceived as being public
records because they satisfy the other parts of the definition,
and they look like public records. Public officials
and employees would be well advised to avoid such indicia
when conducting private business, in order to avoid understandable
confusion on the part of requesters who perceive the records
to be public in nature and thus, subject to mandatory disclosure
under FOIA.
Thank you for contacting this office. I
hope that I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1I
note that your request was for records related to the letter,
not for the letter itself, a copy of which you included with
your electronic mail to this office.
2See Virginia Code §§ 23-91.24
through 23-91.33 (regarding the establishment of the University
as a corporate body under the General Assembly, its powers
and duties, and other related statutory provisions).
3Freedom of Information Advisory Opinion 1 (2000).
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