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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-06-06
May
25, 2006
Steven Shoon
Petersburg, 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 letters of May 9, 2006, and May 11, 2006.
Dear Mr. Shoon:
You have asked whether subsection C of §
2.2-3703 of the Virginia Freedom of Information Act (FOIA),
concerning rights of incarcerated persons, violates the standards
of substantive due process under the Fifth and Fourteenth
Amendments to the Constitution of the United States. You expressed
particular concern that the language used in this subsection
may deny FOIA rights to persons who are incarcerated but not
convicted of any criminal offense.
The
General Assembly has stated that the purpose of FOIA 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, and free entry to meetings of public bodies
wherein the business of the people is being conducted.
However, subsection C of § 2.2-3703 reads as follows:
No provision of this chapter or Chapter 21 (§ 30-178
et seq.) of Title 30 shall be construed to afford any rights
to any person incarcerated in a state, local or federal correctional
facility, whether or not such facility is (i) located in the
Commonwealth or (ii) operated pursuant to the Corrections
Private Management Act (§ 53.1-261 et seq.). However,
this subsection shall not be construed to prevent an incarcerated
person from exercising his constitutionally protected rights,
including, but not limited to, his rights to call for evidence
in his favor in a criminal prosecution. Thus while the
General Assembly has chosen to grant rights of access to public
records and public meetings to citizens generally, it has
chosen not to grant those same rights to incarcerated persons.
Whether subsection C of § 2.2-3703
violates the federal constitution is not a matter of interpretation
or guidance under FOIA. Rather, it is a question regarding
the authority of the General Assembly to grant rights to citizens
in general while withholding those same rights from incarcerated
persons, and whether that exercise of state legislative authority
violates the federal constitution. The powers and duties of
the Freedom of Information Advisory Council (the Council)
are delimited by statute, as set forth in § 30-179 of
the Code of Virginia. While the Council does have the power
and duty to provide advisory opinions, training, and education
regarding FOIA, the Council does not have the power or duty
to interpret the federal constitution or the application of
constitutional law to specific legislative actions of the
General Assembly of Virginia. To offer an opinion regarding
the constitutionality of subsection C of § 2.2-3703 would
be beyond the authority of the Council.
You
also requested that this office forward your request to the
Office of the Attorney General in the event that the opinion
requested is beyond the authority of the Council. Subsection
A of § 2.2-505 states as follows: The Attorney General
shall give his advice and render official advisory opinions
in writing only when requested in writing so to do by one
of the following: the Governor; a member of the General Assembly;
a judge of a court of record or a judge of a court not of
record; the State Corporation Commission; an attorney for
the Commonwealth; a county, city or town attorney in those
localities in which such office has been created; a clerk
of a court of record; a city or county sheriff; a city or
county treasurer or similar officer; a commissioner of the
revenue or similar officer; a chairman or secretary of an
electoral board; or the head of a state department, division,
bureau, institution or board.
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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