FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Virginia Office for Protection and Advocacy
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 March 18, 2011.
Ms. Miller and Ms. Otto:
have asked whether a settlement agreement is subject to disclosure
under the Virginia Freedom of Information Act (FOIA). As background,
you indicated that the Virginia Office for Protection and
Advocacy (VOPA) represented plaintiffs in a case against the
Virginia State Lottery Department (the Lottery) in the Richmond
Circuit Court. The plaintiffs alleged that the Lottery failed
to make its programs accessible to individuals with disabilities.
You stated that after five years of litigation, the parties
entered into a settlement agreement and a supplemental settlement
agreement. Furthermore, you related that the settlement agreement
contained a confidentiality clause and that the agreements
were incorporated into a sealed order of the court.1
The confidentiality clause allowed for certain releases by
mutual agreement, pursuant to which the parties have issued
a joint press release and the Lottery has made most of the
terms of the agreements available on its website.2
However, you also indicated that other details contained in
the settlement agreements had not been made public. Finally,
you stated that VOPA has received requests for the agreements
under FOIA, but VOPA and the Lottery disagree regarding whether
the records must be released. There is no question that the
aspects of the settlement agreements that have already been
made public are subject to release. The question is whether
the remaining portions, which have not been made public by
either VOPA or the Lottery, must be released in response to
the FOIA request. The arguments presented will be addressed
in detail below.
initial matter, we must establish the applicability of FOIA.
The definition of public body set forth in §
2.2-3701 includes any...agency of the Commonwealth.
Therefore, as state agencies, both VOPA and the Lottery are
public bodies subject to the provisions of FOIA.3
Next, the definition of public record in the same
section 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. The
settlement agreements prepared, possessed, and owned by VOPA
and the Lottery are public records under this definition.
However, note further that subdivision A 5 of § 2.2-3703
states 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. Under this provision, copies of
the settlement agreements included with the court case file
would not be subject to FOIA, because as records required
by law to be maintained by the clerk of court, the case file
itself is exempt from FOIA (but would be subject to disclosure
as provided by § 17.1-208 and other laws affecting access
to court records).4
stated that VOPA's position is that the records should be
released pursuant to FOIA, because there is no general exemption
for settlement agreements,5 and because the confidentiality
clause allows for release as required by law. Pursuant
to subsection A of § 2.2-3704, FOIA generally requires
that all public records be made available for inspection and
copying except as otherwise specifically provided by law.
Therefore, you are correct that as a general rule, FOIA would
require the release of public records, including the settlement
agreements in question, absent any applicable statutory exemption.
You have correctly observed that there is no general exemption
that expressly applies to settlement agreements. In the interest
of thorough analysis of the matter, however, we must look
at prior opinions that considered whether a settlement agreement
must be disclosed under FOIA. In 1988, the Attorney General
opined that the settlement agreement was not protected by
the attorney-client privilege exemption, nor by the exemption
for records compiled exclusively for use in a closed meeting.6
However, that opinion also concluded that the settlement agreement
could be withheld from disclosure as memoranda, working
papers and records compiled specifically for use in litigation,
because it had been compiled specifically for use in litigation
to resolve an existing dispute and to memorialize and evidence
the terms of that resolution.7 That opinion
therefore provides a precedent for exempting settlement agreements
as memoranda compiled specifically for use in litigation.
However, this issue came before the Supreme Court of Virginia
in a case in 1990, but because the records in dispute were
not filed before the Court, the Court refused to decide the
issue in a vacuum.8 It appears that at trial, the
exemption for records compiled specifically for use in litigation
was asserted, but the trial court rejected that assertion
and issued a writ of mandamus ordering the settlement agreement
to be produced. On this issue, the Court allowed the judgment
of the trial court to stand without approval due to the insufficiency
of the appellate record.9 Considering these opinions
together, it appears that the Attorney General opined that
settlement agreements could be withheld as memoranda compiled
specifically for use in litigation, a trial court disagreed
and issued an order to the contrary, and the Supreme Court
refused to decide the issue for lack of a proper appellate
record. However, the Supreme Court did find that it had a
sufficiently precise description of certain accounting records
of payments made pursuant to the settlement agreement at issue,
and that those accounting records were not exempt from disclosure,
even if the settlement agreement itself was exempt.10
also that the statutory language of the exemption has been
amended since these opinions were issued. Former § 2.2-342(B)(6)
exempted memoranda, working papers and records compiled
specifically for use in litigation or as a part of an active
administrative investigation concerning a matter which is
properly the subject of an executive or closed meeting under
§ 2.1-344 and material furnished in confidence with respect
thereto. The current language of § 2.2-3705.1(3),
adopted in 1999,11 exempts legal memoranda
and other work product compiled specifically for use in litigation
or for use in an active administrative investigation concerning
a matter that is properly the subject of a closed meeting
under § 2.2-3711. Research did not reveal any more
recent precedent on this issue, or any opinion interpreting
how the changes in language might affect the application of
this exemption in regard to settlement agreements. Given the
ambiguity of prior opinions, the absence of controlling precedent,
and the subsequent changes to the language of the exemption,
it is unclear whether settlement agreements generally may
be withheld pursuant to the current exemption for legal memoranda
compiled specifically for use in litigation. However, in this
case you indicated that the settlement agreements came about
after years of actual litigation, and did in fact settle that
litigation. Therefore, in this case, under the facts presented,
it would appear that the settlement agreements at issue were,
in fact, legal memoranda ... compiled specifically for
use in litigation, and therefore could be withheld pursuant
to subdivision 3 of § 2.2-3705.1.
you described the Lottery's position as being that the settlement
agreements should be withheld from disclosure pursuant to
Va. Code § 2.2-514, which addresses the compromise and
settlement of disputes by the Attorney General. You stated
that the requirements of that section were satisfied in the
instant case, as the settlement agreement at issue was approved
by the Office of the Governor, the Attorney General, and the
Executive Director of the Lottery, as required by subsection
A of § 2.2-514.12 Subsections B and C address
confidentiality agreements as follows:
No settlement under subsection A shall be made subject to
a confidentiality agreement that prohibits the Commonwealth,
a state agency, officer or employee from disclosing the
amount of such settlement except where such confidentiality
agreement is imposed by a court of competent jurisdiction
or otherwise is required by law.
No settlement under subsection A shall be made subject to
a confidentiality agreement if such settlement requires
that a matter or issue shall be the subject of (i) regulatory
action pursuant to Article 2 (§ 2.2-4006 et seq.) of
Chapter 40 of this title, or (ii) legislation proposed to
be introduced in the General Assembly.
of these subsections appear to be limitations on the Attorney
General's ability to enter certain types of confidentiality
agreements. Neither subsection provides an explicit exemption
from disclosure under FOIA. It does not appear that subsection
C is applicable to this matter based on the facts presented.
Under subsection B, it appears that court approval is required
in order to enter a confidentiality agreement that prohibits
the disclosure of the amount of the settlement. You indicated
that the settlement agreement at issue was filed with the
court and sealed by court order.13 While subsection
B as quoted above does not set forth any explicit exemption
from FOIA, the fact that the settlement agreement at issue
was sealed by court order is dispositive of this matter.
stated, FOIA requires the disclosure of public records except
as otherwise specifically provided by law. It is the
opinion of this office that the settlement agreements at issue
could be withheld as memoranda compiled specifically for use
in litigation pursuant to subdivision 3 of § 2.2-3705.1.
This exemption, like others in FOIA, grants discretion to
the custodian to withhold records. In deciding whether to
invoke a FOIA exemption, a custodian could also choose to
release the records.14 However, while FOIA exemptions
are discretionary, compliance with court orders is mandatory
(subject to enforcement by the court itself). To the extent
that the court has prohibited disclosure by placing the records
at issue under seal, the court order is binding on the parties.
Therefore the records are exempt from FOIA and must be withheld.
When responding to a request for records, FOIA requires that
the requester be provided a written response that cites the
appropriate exemption any time records are withheld in whole
or in part.15 In this instance, it would be proper
to cite both subdivsion 3 of § 2.2-3705.1 and the court
order that seals the records.
you for contacting this office. I hope that I have been of
confidentiality clause of the settlement agreement you provided
reads as follows:
8. The Parties will keep the terms of this Agreement confidential,
except as required by law, as necessary to implement this
Agreement or as agreed upon by VOPA and the Lottery.
9. VOPA and the Lottery may issue a join, mutually agreeable
press release regarding the resolution of this case. No other
publications or media interviews will be permitted unless
mutually agreed upon.
. . .
16. Once the parties have agreed upon the standards required
in Paragraphs 1, 2 and 3, they will jointly move to dismiss
the case with prejudice and request that this Agreement be
incorporated into a sealed Court order.
2"Retailer Accessibility Program" available
at http://valottery.com/retailer/default.asp (last visited
April 27, 2011). Note that this office has not been provided
with complete copies of the settlement agreements or the court
order, and cannot offer any opinion regarding whether the
agreed-to releases have been made in compliance with the terms
of the settlement agreements and court order.
3VOPA is an independent state agency pursuant to
Va. Code § 51.5-39.2; the Lottery is an independent agency
of the Commonwealth pursuant to § 58.1-4003.
4See generally §§ 17.1-123 and
17.1-124 (order books to be maintained by the clerks of courts
of record) and Chapter 2 of Title 17.1 (§§ 17.1-200
through 17.1-295)(clerks, clerks' offices, and records) regarding
records required by law to be maintained by the clerks of
the courts of record.
5While it is true that there is no general
exemption for settlement agreements, note that contracts settling
public employee employment disputes may be withheld as personnel
records, as specifically addressed in subsection A of §
61987-1988 Op. Att'y Gen. Va. 35.
7Id., citing former § 2.2-342(B)(6),
now codified at § 2.2-3705.1(3).
8Lemond v. McElroy, 239 Va. 515; 391 S.E.2d
9Id., 239 Va. at 520-521, 391 S.E.
2d at 312 ("First, we address the 'settlement agreement'
issue. Presented with persuasive arguments on both sides of
this important question, we refuse to decide the issue in
a vacuum, without any idea of the precise nature of the document
with which we are dealing....At the trial level, it was incumbent
upon the litigants to make an appellate record...This was
not done, and that failure has prevented appellate review
of the question.")
10Id., 239 Va. at 521, 391 S.E.2d at 312.
111999 Acts of Assembly, c. 703.
12Subsection A of § 2.2-514 reads as follows:
Except as provided in this section or subsection B of §
23-38.33:1, the Attorney General may compromise and settle
disputes, claims and controversies involving all interests
of the Commonwealth including, but not limited to the Virginia
Tort Claims Act (§ 8.01-195.1 et seq.), and may discharge
any such claims, but only after the proposed compromise, settlement
or discharge, together with the reasons therefor, have been
submitted in writing to the Governor and approved by him.
Where any dispute, claim or controversy involves the interests
of any department, institution, division, commission, board,
authority or bureau of the Commonwealth, the Attorney General
may compromise and settle or discharge the same provided the
action is approved both by the Governor, as provided in this
section, and by the head, or his designee, of the department,
institution, division, board, authority or bureau that is
interested. However, when any dispute, claim or controversy
arises under the Virginia Tort Claims Act (§ 8.01-195.1
et seq.) or otherwise involves the interests of any department,
institution, division, commission, board, authority or bureau
of the Commonwealth, and the settlement amount does not exceed
$250,000, the Attorney General or an assistant Attorney General
assigned to such department, institution, division, commission,
board, authority or bureau, or such other designee of the
Attorney General, may compromise and settle or discharge the
same provided the action is approved by the head, or his designee,
of the department, institution, division, board or bureau
whose interests are in issue. When the dispute, claim or controversy
involves a case in which the Commonwealth has a claim for
sums due it as the result of hospital, medical or dental care
furnished by or on behalf of the Commonwealth, the Attorney
General or such assistant Attorney General may compromise
and settle and discharge the same when the settlement amount
does not exceed $250,000.
13Note that the settlement agreement at issue in
Lemond, supra, was not filed with any court.
14Unless some other law prohibits release of the
15Subdivisions B 1 and B 2 of § 2.2-3704.