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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-07-04
April
7 , 2004
Mr. John
R. Roberts, Esq., County Attorney
Ms. Melissa Spring, Esq., Assistant County Attorney
Leesburg, 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 emails
of February 10, 2004, and February 11, 2004.
Dear
Mr. Roberts and Ms. Spring:
You
have asked a question concerning the application of the records
exemption for personal information furnished to a public body
for the purpose of receiving electronic mail ("email")
from the public body under the Virginia Freedom of Information
Act (FOIA).
Subdivision
A 78 of § 2.2-3705 of the Code of Virginia allows a public
body to withhold, in its discretion:
Personal
information, as defined in § 2.2-3801, including
electronic mail addresses, furnished to a public body
for the purposes of receiving electronic mail from the
public body, provided that the electronic mail recipient
has requested that the public body not disclose such information.
However, access shall not be denied to the person who
is the subject of the record.
You
indicate that several members of the Loudon County Board of
Supervisors send out "e-newsletters" to update constituents
regarding issues and events in their particular district,
as well as countywide events. You indicate that these e-newsletters
are not sent on behalf of the Board of Supervisors or the
County as a whole, but are sent by individual members on their
own initiative. You ask if the exemption cited above would
allow a member of the Board of Supervisors to withhold a citizen's
email address if it was furnished to that member for the
purpose of receiving email from that individual member. You
further ask if the answer to this question would change if
the citizen sent his request to receive the emails to the
supervisor's nongovernment, private email address.
The
policy of FOIA at subsection A of § 2.2-3700 ensures
the people of the Commonwealth ready access to public records
in the custody of a public body or its officers or employees.
This policy further requires that the provisions of FOIA be
liberally construed, and that [a]ny exemption from public
access to records or meetings shall be narrowly construed.
At issue is whether the language in the exemption that allows
personal information to be withheld if furnished for the purpose
of receiving email from the public body also applies
when the personal information is furnished to receive email
from an individual member of the public body.
Construing
the exemption narrowly, as is required by law, the plain language
appears to apply only to personal information furnished to
receive emails from the public body as a whole. The language
clearly refers to public bodies; one cannot construe this
language more broadly to include its application to individual
members of a public body. This is not to say that the exemption
would not apply if the emails were sent from one public official's
email account on behalf of the Board of Supervisors as a
whole. However, in the facts you present, members are sending
the emails in their individual capacities, and not as representatives
of the whole. When one elected official sends an email to
his constituents, it is akin to correspondence, and there
is no general FOIA exemption for the correspondence of public
officials. The exemption in question was created to address
a situation where government -- the public body as a whole
-- sends emails or electronic newsletters to citizens to
provide them with information about upcoming meetings, current
issues facing the government, or other matters of public business.
In this light, the emails contemplated by the exemption are
more akin to receipt of a subscription or a service from the
public body rather than receipt of email correspondence.
As a subscription or a service, whether or not provided for
compensation, the emails do not adopt the characteristics
of individual correspondence because they are essentially
sent from the government as a whole, instead of being sent
by one individual to one or many constituents.
It is
also important to note that this exemption does not allow
all personal information provided to a public body to be withheld
generally. It only applies if the information is provided
for the narrow purpose of receiving emails from the public
body and if the citizen providing such information
requests that it not be disclosed. Both requirements must
be met in order for the public body to invoke the exemption.
You
also ask if the answer to your question would differ if a
citizen sent his request to receive the emails from an individual
member of the Board of Supervisors to the member's nongovernment,
private email address. FOIA defines a public records as 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. As can be seen in this
definition, whether or not a record is a public record for
purposes of FOIA hinges on the content of the record, and
whether or not it relates to public business. For the purposes
of email, it does not matter if the record is composed or
received on a private computer or at a private email account
-- if it is sent or received by a public official, such as
a member of the Board of Supervisors, and concerns public
business, then it is a public record under FOIA. Therefore,
for purposes of your question, the decision as to whether
an email sent by a citizen to a member of the Board of Supervisors
must be disclosed does not change if the email was sent to
the member's private email address instead of his government
email address.
Thank you for contacting this office. I hope that I have been
of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
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