VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-09-19

November 6, 2019

Alan Blinder and Lexie Perloff-Giles
The New York Times
via electronic mail

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 and attachments dated September 9, 2019.

Dear Mr. Blinder:

You have asked for an advisory opinion regarding a request for records you made to the University of Virginia (the University) under the Virginia Freedom of Information Act (FOIA) and the University's response.

Background

As background, you stated that you asked for "copies of public records that relate to the decision for the University of Virginia men's basketball team not to travel to the White House, or to meet with President Donald Trump, to celebrate its national championship in 2019" for the period from March 1, 2019, through May 1, 2019. The University sent 126 pages of email records in response, some of which were redacted in part. You included these 126 pages of records as an attachment to your inquiry to this office. Examples of the redactions include redacted To, From, or Subject lines in the headers of some emails; what appear to be redacted names in the salutations ("Hi [redacted]") and bodies ("[Redacted] has called...do you want to call [redacted] back?") of some emails; redacted signature blocks at the end of other emails; and in at least one instance, what appear to be two entire paragraphs blacked out. As you described it, the University used these redactions "to shield the identity of individuals who have reportedly donated funds to the University and whose names appear in the correspondence." You stated that the University cited the fundraising exemption at subdivision A 7 of § 2.2-3705.4 as the basis for the redactions. That exemption allows a public body to withhold the following information in the discretion of the custodian:

Information maintained in connection with fundraising activities by or for a public institution of higher education that would reveal (i) personal fundraising strategies relating to identifiable donors or prospective donors or (ii) wealth assessments; estate, financial, or tax planning information; health-related information; employment, familial, or marital status information; electronic mail addresses, facsimile or telephone numbers; birth dates or social security numbers of identifiable donors or prospective donors. Nothing in this subdivision, however, shall be construed to prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation, or the identity of the donor unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. The exclusion provided by this subdivision shall not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the institution for the performance of research services or other work or (ii) the terms and conditions of such grants or contracts.

You expressed your opinion that the University used this exemption improperly for two reasons. First, this exemption by its own terms applies only to "[i]nformation maintained in connection with fundraising activities" but you assert that "the records at issue here – email correspondence among members of the athletics department regarding a team's decision to not visit the White House – have nothing to do with fundraising." Second, observing that the exemption allows a donor's identity to be withheld only if "the donor has requested anonymity in connection with or as a condition of making a pledge or donation," you related that when questioned on this point, the University "did not say that the redactions were applied to protect the identity of anonymous donors." Furthermore, some of "the correspondence gives no indication that the individual in question was a donor at all." You conclude that the University's use of this exemption in this manner would allow any public institution of higher education to "redact the name of a person who has ever made a donation to the institution, no matter where that name appears or whether the document actually identifies the person as a donor." Additional facts will be set forth below as appropriate.

Law and Analysis

The policy of FOIA expressed in subsection B of § 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." In implementing this policy, subsection A of § 2.2-3704 provides that "all public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth ... during the regular office hours of the custodian of such records." There is no doubt that the New York Times is a newspaper with circulation in the Commonwealth, so while you may not be a citizen of the Commonwealth, you have access rights under FOIA as a representative of the newspaper. The policy of FOIA goes on to state that "[a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked." In construing exemptions, the policy directs that "'[a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." When analyzing a statutory exemption, we also apply rules of statutory construction as needed. As stated by the Supreme Court of Virginia:

Under fundamental rules of statutory construction, each statute must be examined in its entirety, rather than by isolating particular words or phrases. The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result. Thus, when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.¹

The Court has also stated that "[e]very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary." ² When considering the meanings of the words used in an exemption, the Court has held that "when a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the language used. When the legislature leaves a term undefined, courts must give the term its ordinary meaning, taking into account the context in which it is used."³ Regarding redaction, § 2.2-3704.01 provides in relevant part that "only those portions of the public record containing information subject to an exclusion under this chapter or other provision of law may be withheld, and all portions of the public record that are not so excluded shall be disclosed." Additionally, in considering whether exemptions apply to specific public records, the Court opined that "[w]hether documents . . . should be excluded under [an exemption to FOIA] is a mixed question of law and fact."⁴ If the use of an exemption is challenged in court, subsection E of § 2.2-3713 provides that "the public body shall bear the burden of proof to establish an exclusion by a preponderance of the evidence. No court shall be required to accord any weight to the determination of a public body as to whether an exclusion applies."

Addressing your first contention, it is really in two parts: (1) whether the language of the exemption necessarily limits its application to "information maintained in connection with fundraising activities," and (2) whether the records at issue in this instance "have nothing to do with fundraising" because you requested correspondence related to the team's decision whether to visit the White House. Regarding the first part, applying FOIA's policy of narrow construction of exemptions and the rules of statutory construction stated above, we must give effect to every part of the exemption and its plain meaning. Therefore, by its own terms, for any information to be exempt under the fundraising exemption at issue it must satisfy each provision of the exemption as written, including that it be "[i]nformation maintained in connection with fundraising activities." Following the redaction rule of § 2.2-3704.01, you are correct that any information that is not "maintained in connection with fundraising activities" may not be withheld pursuant to this exemption. Note that in the context of FOIA exemptions, the term "information" is defined in § 2.2-3701 to mean "the content within a public record that references a specifically identified subject matter, and shall not be interpreted to require the production of information that is not embodied in a public record." While "information" is defined, the exemption does not provide any statutory definition of what it means for information to be "maintained in connection with fundraising activities," so following the rules of statutory construction, we turn to the ordinary meaning of those terms. The Court of Appeals of Virginia has held that "[i]n ordinary usage, 'maintain' means 'to keep in a state of repair, efficiency, or validity : preserve from failure or decline.'"⁵ The Merriam-Webster online dictionary defines the phrase "in connection with" to mean "in relation to (something) : for reasons that relate to (something) —used especially in journalism."⁶ The same source defines "fundraising" as "the organized activity of raising funds (as for an institution or political cause)" and defines "activity" as "the quality or state of being active : behavior or actions of a particular kind."⁷ Reading these definitions together, then, the phrase "[i]information maintained in connection with fundraising activities" would mean information contained in a public record that is kept or preserved for reasons that relate to the organized behavior or actions of raising funds.

Turning to the second part of your first contention, at first blush it would appear correct that emails about a decision whether a team will visit the White House do not appear to be related to fundraising activities. As you stated in your inquiry to this office, "the exemption applies exclusively to the types of records that relate directly to an institution's fundraising – for example, a database with donor information, or documents outlining the school's fundraising strategies." However, please note that the emails that were provided in response and included with your attachment appear to raise the possibility of a factual dispute on this issue as several of them do appear to address donations or identify donors. For example, one email states as follows: "We have a donor considering a bequest and he wants to know 'who makes the decision about whether the basketball team goes to the White House.'"⁸ Notably, this email does not appear to have been redacted at all, but neither does it identify the donor in question since it only uses the pronoun "he." It is unknown whether any of the other emails that were redacted might have identified the same donor. Another email included in the attachment reads "How much of this type of reaction are you hearing? I have about a dozen or so with a few from higher level donors like [redacted]. I don't know how [redacted] or [redacted] feel about this. I did talk to [redacted] today and he doesn't have any issue with it."⁹ Given the context, it appears that the withheld portions of this email would have identified "higher level donors" and the "talk" mentioned may have concerned fundraising. As a third example, another unredacted email begins with the statement "I'm a longtime & forever UVA athletics/VAF supporter."¹⁰ Given these examples, it appears that at least some of the emails at issue did involve some discussion of a possible bequest and the identification of some donors. These examples would lend credence to an assertion that the emails in question were "in connection with fundraising activities." For example, the University could keep these records out of concerns for future fundraising success and strategies to address those concerns. In other instances, it appears that there were emails that said nothing about fundraising or donations in the body of the email, which might support your position that these emails were not "in connection with fundraising activities," but still have had names, email addresses, or signature files redacted. In those cases, it would appear that such redactions may have been improper as none of the content appears to concern fundraising activities, but it is impossible to know for sure since the redactions by their very nature hide the information needed to make that determination. Additionally, note that some emails had multiple lines or even entire paragraphs redacted, so it is impossible to say what information they might contain, whether they are maintained in connection with fundraising activities, or whether or how they relate to other redactions (i.e., was a donor name or email address redacted from another email because the same donor was discussing a bequest in one of the redacted paragraphs?). Unfortunately, as this office has no power to compel production and is not a trier of fact, we are unable to answer these questions regarding whether the redactions made contained "[i]nformation in connection with fundraising activities." As the application of the fundraising exemption to particular records is a mixed question of law and fact, only a court would have the authority to review the unredacted records in camera and render a legally binding decision on whether these redactions were proper.

Your second assertion was that the University's use of this exemption would allow it to "redact the name of a person who has ever made a donation to the institution, no matter where that name appears or whether the document actually identifies the person as a donor." The exemption itself states that "[n]othing in this subdivision, however, shall be construed to prevent the disclosure of information relating to ... the identity of the donor unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation." Applying the rules of statutory construction stated above, therefore, a donor's identity may only be withheld if the public record contained "[i]nformation maintained in connection with fundraising activities by or for a public institution of higher education that would reveal" the types of information identified in the two enumerated clauses of the exemption and if the donor requested anonymity "in connection with or as a condition of making a pledge or donation." If any of these elements is missing, the exemption does not allow the donor's identity to be withheld. As an example, a contract for services provided to the University would not fall under this exemption, even if the contractor was a donor as well.

One of the issues you raised in this regard was that the University "did not say that the redactions were applied to protect the identity of anonymous donors." The other was that some of "the correspondence gives no indication that the individual in question was a donor at all." As a procedural matter, if records are withheld in part as was the case here, subdivision B 2 of § 2.2-3704 requires the public body to "identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records." While we always encourage communication between public bodies and requesters, FOIA does not require further explanation when a public body asserts an exemption beyond identifying the subject matter of withheld portions and citing the specific Code section that authorizes withholding. Additionally, note that in the attached emails it appears that some donor names were redacted and others were not as described in the examples above. You asserted that the University's position here is to "redact the name of a person who has ever made a donation to the institution, no matter where that name appears or whether the document actually identifies the person as a donor," but the attachments appear to show that the University did not actually redact every donor's name. Hypothetically, such a response would make sense and be in compliance with the statutory requirements if only the identity of those donors who had requested anonymity were withheld and the names of other donors who did not request anonymity were left unredacted. However, as stated above, redactions by their very nature hide the information that would be needed to make a specific determination.

Conclustion

The fundraising exemption, subdivision A 7 of § 2.2-3705.4, allows a public body to withhold certain information maintained in connection with fundraising activities by or for a public institution of higher education. The identity of a donor may only be withheld under the fundraising exemption if the donor has requested anonymity in connection with or as a condition of making a pledge or donation. In this particular instance, the subject matter of your request (whether the University basketball team would visit the White House and its decision to decline that invitation) is not inherently related to fundraising, but the actual contents of some of the emails you received in response do appear to discuss donors and bequests, while others do not. The Supreme Court of Virginia has held that determining whether a FOIA exemption applies to specific records is a mixed question of law and fact. Unfortunately, without the benefit of seeing the unredacted versions of the emails in question, it is impossible for this office to offer an opinion as the facts are incomplete. Only a court has the authority to review records in camera and render a legally binding decision on whether the redactions at issue were properly made pursuant to the fundraising exemption.

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

Sincerely,

Alan Gernhardt
Executive Director

Ashley Binns
Staff Attorney

¹Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted).
²Davis v. MKR Development, LLC, 295 Va. 488, 494, 814 S.E.2d 179, 182 (2018) (quoting City of Richmond v. Virginia Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016)).
³American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 341, 756 S.E.2d 435, 441 (2014).
⁴Department of Corrections v. Surovell, 290 Va. 255, 262, 776 S.E.2d 579, 583 (2015); see also American Tradition Institute, 287 Va. at 338, 756 S.E.2d at 439 (2014) ("Whether documents of the types represented in the exemplars submitted to the trial court should be excluded under [a different FOIA exemption] is a mixed question of law and fact.").
⁵Mills v. Mills, 2019 Va. App. LEXIS 115(Record No. 1630-18-2, decided May 14, 2019) (quoting Webster's Third New International Dictionary (1981)).
⁶Merriam-Webster online dictionary at https://www.merriam-webster.com/dictionary/in%20connection%20with, last accessed October 28, 2019.
⁷Id. at https://www.merriam-webster.com/dictionary/fundraising and https://www.merriam-webster.com/dictionary/activities, respectively.
⁸Email dated April 18, 2019, identified as UUID: 122714790 in the attachment.
⁹Email dated April 29, 2019, identified as UUID: 122715489 in the attachment.
¹⁰Email dated May 1, 2019, identified as UUID: 122718332 in the attachment. It appears that "VAF" refers to the Virginia Athletics Foundation, which uses donations to support scholarships and athletic activities at the University (see http://virginiaathleticsfoundation.com/about-us/, last visited October 28, 2019).

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