VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-03

April 3, 2003

Mr. Michael Ravnitzky
American Lawyer Media
Washington, District of Columbia

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 email of February 5, 2003.

Dear Mr. Ravnitzky:

You have asked whether a list of the names of lawyers admitted to practice law in the Commonwealth of Virginia would be open for public inspection and copying under the Virginia Freedom of Information Act (FOIA). You indicate that you requested this list from the Virginia State Bar (VSB), but were told that such lists were only available to not-for-profit organizations that conduct continuing legal education programs in Virginia.

Subsection A of § 2.2-3704 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. Section 2.2-3701 defines a public record to include all writings and recordings…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 policy provisions of FOIA at subsection B of § 2.2-3700 require that the provisions of FOIA be liberally construed, and that any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld…unless specifically made exempt pursuant to this chapter or other specific provision of law.

Title 54.1 of the Code of Virginia sets forth the provisions relating to regulatory boards, including the regulation of attorneys by the VSB at Subtitle IV (§ 54.1-3900 et seq.) By way of background, VSB is an administrative agency of the Supreme Court of Virginia charged with the regulation of the legal profession in the Commonwealth. All persons licensed to practice law in Virginia must belong to the VSB and comply with its licensing requirements. Section 54.1-108 states that official records of any board named in Title 54.1 shall be subject to FOIA, but examination questions, papers, booklets and answer sheets, applications for admission to examinations or for licensures and scoring records on individual licensees or applicants, and records of active investigations being conducted by any regulatory board may be withheld.

In order to withhold a list of the names of people admitted to practice law in the Commonwealth, a statute would need to specifically exempt such a record. In response to your request, VSB indicated that § 54.1-3918 only allowed a list of attorneys to be released to a not-for-profit organization that conducted continuing legal education programs. Section 54.1-3918 states:

As mentioned above, if a statute does not specifically exempt a record from disclosure, it must be made available for public inspection and copying under FOIA. The statute cited by the VSB does not set forth an exemption; instead, it provides that when not-for-profit organizations that conduct continuing legal education programs request address lists of members of the VSB, the records must be provided in a particular format and manner. Section 54.1-3918 does not state that records of members of the VSB shall not be disclosed but to not-for-profit organizations that conduct continuing legal education programs, and reading such language into the section by implication would result in an improperly broad interpretation of that section. Following FOIA's rules of construction, and absent specific language indicating that records may be withheld, an assertion that certain records must be provided cannot be read conversely to reach the conclusion that other records need not be provided. It appears that the VSB must provide a list of the names of attorneys licensed to practice law in the Commonwealth upon request, because there is no specific statutory exemption that would allow such a record to be withheld.

Public policy also supports the position that a list of licensed attorneys is a matter of public record. Section 54.1-100 states that every person has the right to engage in any lawful profession, trade or occupation, and that the Commonwealth cannot abridge such rights except as a reasonable exercise of its police powers when it is clearly found that such an abridgment is necessary for the preservation of the health, safety and welfare of the public. By including the practice of law as a regulated profession, the General Assembly made the decision that it is in the public's best interest to require licensure and regulation of attorneys in the Commonwealth. To conclude that a list of attorneys licensed to practice law is not a matter of public record runs contrary to the public policy of licensing attorneys in the first place. The public would not be well served if it could not access a list of those the Commonwealth has deemed to be in good standing to practice law, because the purpose of the licensing requirements is to protect the public health, safety and welfare.

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

Sincerely,

Maria J.K. Everett
Executive Director