AO-12-09

December 16, 2009

J.A. Parker, President
Conservative Legal Defense and Education Fund
Vienna, Virginia

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 letter of November 4, 2009 and an electronic mail message from the Virginia State Bar dated November 12, 2009.

Dear Mr. Parker:

You have inquired about the applicability of the Virginia Freedom of Information Act (FOIA) to the Virginia State Bar (VSB), to the Office of the Executive Secretary of the Supreme Court of Virginia (OES), to the Supreme Court of Virginia, and to certain records held by these entities. As background, you stated that you sent a request for records concerning a Diversity Initiative and Diversity Task Force of the VSB (the Task Force) to both VSB and to the Supreme Court through OES. You indicated that you received separate replies from VSB and OES.

This office received a courtesy copy of a letter dated November 12, 2009, from VSB to you. Based upon your inquiry and the subsequent letter from VSB, it appears that VSB required an advance deposit, you paid it, and VSB then provided the requested documents. As such, it does not appear necessary to opine further regarding VSB's response to your records request. If there are remaining questions about that response of which this office is unaware, please do not hesitate to contact us with those inquiries.

Additionally, you asked generally whether VSB is subject to FOIA, and whether the Diversity Task Force set up by the past president of VSB and its records are subject to FOIA. The term public body is defined in § 2.2-3701 and includes, among other things, any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth. As a state agency, therefore, VSB is a public body subject to FOIA.¹

In considering the Task Force, we must look to other aspects of the definition of public body. Another clause of the definition of public body includes other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. No facts were presented regarding any funds received by the Task Force, so we cannot offer an opinion whether the Task Force is a public body on the basis of funding. The definition of public body also includes any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. Based upon your letter and VSB's letter, however, it appears that the Task Force was not created by Board of VSB, but by the President of VSB. As such, the Task Force was not created by a public body to perform a delegated function of the public body or to advise the public body, but was instead created by a public employee to advise that employee.² If the Task Force had been created by the Board of VSB to advise it, then the Task Force would be a public body as an entity of the Board created to advise the Board. However, because it was created by the President, following the terms of the definition of public body, it appears that the Task Force is not a public body subject to FOIA. The critical difference is that the Board is a public body in its own right, whereas the President of the VSB is not.

By contrast, the definition of public record set forth in § 2.2-3701 includes all writings and recordings ... 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. Records of the Task Force that come into the possession of VSB or its President in the transaction of their public business therefore are public records subject to FOIA. Given that VSB did respond to your request by providing relevant records, as stated above, it does not appear necessary to address further this aspect of your inquiry.

Regarding the response from OES, you described it in three parts: (1) that members of the Supreme Court of Virginia are not subject to FOIA due to constitutional separation of powers considerations; (2) that records required by law to be maintained by the clerks of courts of record are excluded from FOIA; and (3) that OES did not have any records responsive to your request. First, you indicated that you disagreed with the legal reasoning for the assertion that members of the Court are not subject to FOIA, and stated that you believed the case cited by OES³ to be inapplicable as it dealt with the Office of the Governor, not the judicial branch. The authority of the FOIA Council is limited by statute to FOIA matters.⁴ To the extent your question involves a separation of powers issue to be decided on constitutional grounds, it is beyond the scope of authority granted to this office to offer an opinion.⁵ Turning to the second part of the response, OES is correct that subdivision A 5 of § 2.2-3703 states, in relevant part, that the provisions of FOIA shall not apply to the records required by law to be maintained by the clerks of the courts of record.⁶ Addressing the third response, that OES does not have any records responsive to your request, FOIA provides in subsection D of § 2.2-3704 that no public body shall be required to create a new record if the record does not already exist. The corresponding response is set forth in subdivision B 3 of the same section, to wit, that the public body is to inform the requester in writing that the requested records could not be found or do not exist. It appears that this is exactly what happened in this instance. As the law presumes good faith, then presuming that OES in fact has no records responsive to your request, informing you of that fact was the proper response under FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director