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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-13-02
October
31, 2002
Ms. Rebecca K. Glenburg
Legal Director
American Civil Liberties Union of Virginia
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 letter
of September 18, 2002.
Dear Ms. Glenburg:
You have asked a
question about access to prison records under the Virginia
Freedom of Information Act (FOIA). You indicate that you requested
from various state prisons run by the Virginia Department
of Corrections ("DOC") the "procedures and practices governing
the process by which those designated by an inmate are notified
in case of serious illness, injury or death." In response
to your request, each prison responded that the requested
records were security procedures exempt from disclosure by
subdivision A69 of § 2.2-3705 of the Code of Virginia. You
ask whether the requested documents properly fall with the
exemption, and if so, if the prisons are required to provide
redacted copies of the records.
Subsection A of
§ 2.2-3704 provides 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. The statement
of policy, found at subsection B of § 2.2-3700, states that
the provisions of FOIA shall be liberally construed to
promote an increased awareness by all persons of governmental
activities…[a]ny exemption from public access to records or
meetings shall be narrowly construed. Subdivision B3 of
§ 2.2-3704 further states that if an exemption applies to
only part of a record, the public body may delete or excise
only that portion of the record to which an exemption applies
and shall release the remainder of the record.
Subdivision A69
of § 2.2-3705, cited by the prisons, allows a public body
to withhold the following information:
Engineering
and architectural drawings, operational, procedural, tactical
planning or training manuals, or staff meeting minutes
or other records, the disclosure or which would reveal
surveillance techniques, personnel deployments, alarm
or security systems or technologies, or operational and
transportation plans or protocols, to the extent such
disclosure would jeopardize the security of any governmental
facility, building or structure or the safety of persons
using such facility, building or structure.
Section 58.1-5 allows
the State Board of Corrections to develop rules and regulations
to assist DOC in carrying out its various functions and duties.
One such regulation in the Virginia Administrative Code requires
that DOC establish written procedures and practices specifying
and governing the process by which those individuals designated
by an inmate are notified in case of serious illness, injury,
or death, and the actions to be taken in the event
of an inmate death, including notification of the medical
examiner, management of records, and transportation of the
body.1
Interpreting the
FOIA exemption narrowly, as is required by law, it would appear
that only some of the procedures required to be developed
by the above-mentioned regulation would fall under the exemption
at subdivision A69 of § 2.2-3705. For example, a procedure
indicating which exit would be used to transport the body
of an inmate or which personnel would be called off of their
regular post to respond to an inmate death might jeopardize
the security of the prison. However, it is less clear how
a procedure governing when or how a person designated by an
inmate is notified in case of serious illness or death might
jeopardize security or safety. The exemption at issue does
not exempt all procedural records or manuals solely because
they may be related to security issues. Instead, the exemption
only applies to those records whose disclosure would jeopardize
the security of the building or the safety of the persons
using the building.
As noted above,
if a record contains both exempt and non-exempt information,
the public body may redact only the exempt information and
must produce the remainder of the document. In this case,
DOC could redact information rising to the level of jeopardy
set forth in the exemption. For example, DOC might redact
out information regarding how the body of a deceased inmate
would be transported out of the facility. However, information
that does not affect the security or safety of the building
or individuals, such as when an inmate's designee is notified
of serious illness, does not rise to the level of jeopardy
set forth in the exemption. FOIA would require the release
of this part of the record, even if other information in the
same record may be redacted.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1
6 VAC 15-31-290.
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