VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-03-11

August 31, 2011

Ralph L. "Bill" Axselle, Jr.
Richmond, 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 electronic mail of August 1, 2011.

Dear Mr. Axselle:

You have asked whether Code of Virginia § 40.1-11 exempts certain records of the Virginia Occupation Safety and Health Compliance Program (VOSH) from mandatory disclosure under the Virginia Freedom of Information Act (FOIA). You relate that under the VOSH program, private and public employers are inspected to ensure compliance with all relevant health and safety laws of the Commonwealth. After inspection, employers may be cited for certain alleged health and safety violations. The VOSH program is carried out by the Department of Labor and Industry (DOLI). The DOLI website states the following regarding VOSH:

The Virginia Occupational Safety and Health Compliance Program conducts inspections of private and public sector employers to assure compliance with the laws, standards and regulations of the Commonwealth. The Compliance Program may issue citations listing violations of the standards and regulations to employers, determines dates by which violations must be abated, and may propose civil monetary penalties for certain types of violations (Public Sector employers are not issued such penalties).¹

You stated that when citations are issued, employers often submit FOIA requests to review DOLI’s records regarding the alleged violation, but DOLI often refuses to provide the records requested, citing § 40.1-11 of the Code of Virginia. That Code section provides that [n]either the Commissioner nor any employee of the Department shall make use of or reveal any information or statistics gathered from any person, company or corporation for any purposes other than those of this title.² While acknowledging that some records are exempt from mandatory disclosure under FOIA, you have contended that a broad interpretation of § 40.1-11 would be inconsistent with FOIA's purposes and language, and therefore § 40.1-11 should not be interpreted to exempt from mandatory disclosure VOSH records regarding an employer's violation.

The relevant general policy of FOIA, as set forth in § 2.2-3700, is to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees. To achieve that end, the policy statement makes clear that there is a presumption of openness for all public records, and that records may only be withheld if a exemption is invoked: Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked. Furthermore, FOIA sets forth its own rule of construction to further the policy of openness, as follows:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records... shall be narrowly construed and no record shall be withheld ... unless specifically made exempt pursuant to this chapter or other specific provision of law.

The procedural portion of FOIA regarding records requests, § 2.2-3704, implements this policy in subsection A by stating that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Subdivisions B 1 and B 2 of the same section further require that whenever requested records are withheld in whole or in part, the public body must respond in writing and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. While you did not describe a specific instance where DOLI denied a particular request, for purposes of this opinion, it is presumed that DOLI has followed the proper FOIA procedure, citing § 40.1-11 in writing in its denial.

Turning to the substance of your inquiry, the question posed concerns the scope of § 40.1-11. The statutory authority of this office is limited to FOIA matters.³ Therefore we only consider the scope of § 40.1-11 as it relates to FOIA, and do not offer any independent interpretation of § 40.1-11 as it may operate in other contexts. Research revealed no controlling opinions from the Supreme Court of Virginia, but the interaction between § 40.1-11 and FOIA has been addressed by the Circuit Court for the City of Richmond in Appalachian Information, Inc. v. Boggs.⁴

The Boggs court there took a two-pronged approach to § 40.1-11, first examining whether the records at issue qualified as any information or statistics gathered from any person, company, or corporation; and second, considering whether the disclosure was for any purposes other than those of [Title 40.1]. That case involved a request for mine inspection reports, which the court found fell within § 40.1-11 as information or statistics gathered from any person, company or corporation. The contention was raised that the mine inspection reports were created by the mine inspectors themselves, and therefore were not gathered from any person, company or corporation. However, the court opined that

the information which the mine inspector puts on his report is certainly information that he has gathered from his investigation and study at the mine and certainly the information contained in his report is information gathered from persons and from the company. The fact that the report is prepared and created by the mine inspector does not preclude the information which he puts on his report from being information gathered from any person, company and corporation. The court so finds that the information contained on all of the mine inspection reports described in this case is information gathered from any person, company or corporation as defined in Section 40.1-11.

The court then examined the purposes of Title 40.1, as expressed in § 40.1-3, finding that its provisions are intended to provide solely for the safety, health and welfare of employees and the benefits thereof shall not run to any other person.⁵ Looking at then § 2.1-340.1 (now § 2.2-3700), the court found that the purposes of FOIA

were twofold: On the one hand the act is "to insure to the people of the Commonwealth ready access to records in the custody of public officials..." and on the other hand, the act is to insure "free entry to meetings of public bodies where the business of the people is being conducted."

The General Assembly provided further ... that where questions arise as to the applicability of the act to particular situations, that the act is to be liberally construed to promote its application and to be narrowly construed against exception or exemption from applicability of the act.

Contrasting the purposes of Title 40.1 and FOIA, and observing that then § 2.1-342 (now § 2.2-3704) expressly and explicitly excludes from its operation records that may be subject to other specific provisions of law which limit or prohibit the disclosure of public records, the Boggs court decided as follows:

The defendant contends that Section 40.1-11 of the Code ... is an express statutory prohibition against the release of information by the defendants to any unauthorized person or corporation. Therefore, it can be seen that the Virginia Freedom of Information Act expressly recognizes the fact that there are other statutory prohibitions against the release of information and the act specifically provides for the exclusion of such information from the operation of the act. The court therefore finds that § 2.1-342 [now subsection A of § 2.2-3704] of the Freedom of Information Act does provide a statutory prohibition against the release of information by the defendants to any unauthorized person or corporation when read in relation to Section 40.1-11 of the Code. A fair reading of these two sections together make it implicit that the Freedom of Information Act is not applicable to information or statistics gathered from any person, company or corporation for any purposes other than those of Title 40.1 ... of the Code.

While recognizing that Boggs is not controlling precedent, we do not find fault with the analysis and reasoning used by the court therein. Applying the same analysis and reasoning to the instant matter, it would appear that the VOSH records, like the mine inspection reports in Boggs, would qualify as any information or statistics gathered from any person, company, or corporation under § 40.1-11. The purposes of FOIA and the purposes of Title 40.1 remain distinct, as they were when Boggs was decided. Therefore, following the precedent set by Boggs, it appears that § 40.1-11 does act to exempt the VOSH records at issue from 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

¹Quoted from http://www.doli.virginia.gov/vosh_enforcement/vosh_enforcement_intro.html (last visited August 25, 2011). The website indicates further that the VOSH program also addresses safety issues concerning overhead high voltage lines and asbestos.
²In this context, Code § 40.1-2 provides the following definitions for the terms "Commissioner" and "Department": "Commissioner" means the Commissioner of Labor and Industry. Except where the context clearly indicates the contrary, any reference to "Commissioner" shall include his authorized representatives. "Department" means the Department of Labor and Industry.
³See § 30-179 (powers and duties of the FOIA Council).
⁴9 Va. Cir. 402 (Richmond City 1977); also see Stevens v. Lemmie, 40 Va. Cir. 499 (Petersburg 1996)(quoting Boggs). Note that when Boggs was decided, § 40.1-11 read as follows: Neither the Commissioner nor any employee of the Department shall make use of or reveal any information or statistics gathered from any person, company or corporation, for any purposes other than those of this title or of Title 45.1. The reference to Title 45.1 (Mines and Mining) was subsequently removed, but otherwise the 1977 language is identical to the current law. Although relevant to the Boggs case, since that case concerned mine inspection reports, based on the facts you presented it does not appear that the deletion of the reference to Title 45.1 is pertinent to this advisory opinion.
⁵Current § 40.1-3 reads as follows: The provisions of this title are intended to provide solely for the safety, health and welfare of employees and the benefits thereof shall not run to any other person nor shall a third party have any right of action for breach of any provision of this title except as herein otherwise specifically provided. Note that the Boggs court also considered the purposes of Title 45.1 in reaching its decision (see n.4, supra).