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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-01-02
January
16, 2002
Mr. Albert C. Taylor
Pulaski, Virginia
Dear Mr. Taylor:
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 30, 2001.
Dear Mr. Taylor:
You have asked whether
the names of employees of a public body are releasable under
the Virginia Freedom of Information Act (FOIA). You stated
you made a FOIA request for the names, positions held, salary,
and any supplemental money paid to the employees of the local
school board. You received the requested records, however,
the school board declined to provide the names of the individual
employees.
Subsection A of
§ 2.2-3704 of the Code of Virginia declares 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. Unless a specific exemption applies
to the record that you have described, it is subject to the
mandatory provisions of FOIA. While salary information is
a personnel record that could normally be withheld, subsection
B of § 2.2-3705 specifically requires disclosure of records
of the position, job classification, official salary or rate
of pay of, and records of the allowances or reimbursements
for expenses paid to any officer, official or employee of
a public body. The Attorney General of Virginia has opined
that a public body must create a list of employee names and
salary information, which is an exception to the general rule
under subsection D of § 2.2-3704 that the public body does
not have to create a document under FOIA1. The
names of the current employees are required to be released
under FOIA with the salary information you have received.
You also inquired
about whether a public body, under FOIA, must provide you
with the names, positions held, salary, and any supplemental
money paid to any retired employees of the school board who
were subsequently reemployed by the school board (in this
instance as high school coaches).
Generally, records
relating to the retirement of identifiable individuals who
are public employees are personnel records under FOIA and
therefore are not subject to its mandatory disclosure requirements
pursuant to subsection A. 4. of § 2.2-3705. However, subsection
B of § 2.2-3705 requires the disclosure of salary information,
including records of the position, job classification,
official salary or rate of pay of, and records of the allowances
or reimbursements for expenses paid. Reading those two
sections together, FOIA allows a public body to withhold personnel
records except that salary information of any officer,
official or employee of a public body must be disclosed
if requested.
To the extent the
school board possesses a record that is responsive to your
second request, it may in its discretion release this record
even though it may contain information about an individual's
retirement. This office has previously opined that, pursuant
to subsection A of § 2.2-3705, the custodian of a record for
which an exemption may be invoked may choose to release some
or all of the record2. In this instance, the school
board may properly withhold those portions of the requested
record that relate to the retirement of a public employee,
as a personnel record.
One final point
needs to be made. A public body, pursuant to subsection D
of § 2.2-3704, is not required to create a new record if
the record does not already exist. However, if the school
board elects to furnish you with a list identifying those
individuals who retired from the school board who were subsequently
rehired as coaches in the school system, it may abstract or
summarize this information under such terms and conditions
as agreed between you and the school board3.
In summary, the
school board does not have to release records related to the
retirement of public employees because they are personnel
records. The school board also is not required to create a
record that would be responsive to your specific request.
However, FOIA clearly requires the release of records of position,
job classification, official salary or rate of pay, and records
of allowances or reimbursements for expenses paid.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1
1987-1988 Op. Atty. Gen. Va. 33; 1978-1979 Op. Atty. Gen.
Va. 310.
2 AO-28
(2001).
3 Subsection
D of § 2.2-3704.
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