VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-09-07

July 13, 2007

O.R. Armstrong
President, Geronimo Development Corporation
St. Cloud, Minnesota

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 May 15, 2007.

Dear Mr. Armstrong:

You have asked four questions concerning records created and used in the editing and publishing of the Code of Virginia. As background, you related that the Virginia Code Commission (the Commission) has statutory responsibility for publishing and editing the Code, and may contract out with a third-party publisher in carrying out its responsibilities.¹ In carrying out its duties, the Commission has consistently contracted with Lexis, a private publisher of legal and other materials, to edit and publish the Code since 1948.² The Geronimo Development Corporation (Geronimo) and Thompson-West (West) are also publishers of legal materials, and are interested in getting accurate information regarding annual changes to the Code in a timely fashion.

You stated that in 2002, Lexis, Geronimo, West, and the Commission entered into an agreement creating a publisher's forum (the Forum) online that allowed Geronimo and West, for the first time, to observe the editorial process used by Lexis and the Commission in publishing the Code every year. You observed that there are certain charts used by Lexis and the Commission in the editorial process, consisting of three columns of information. The first column indicates the Code section where a discrepancy or other error may be found. The second column contains a description of the problem(s) and, sometimes, a proposed solution. These two columns are prepared by Lexis and submitted to the Commission; the third column is left blank at this stage. After the Commission receives the chart, it enters the solution to the problem in the third column and returns the completed chart to Lexis. You stated that prior to this 2002 agreement, the Commission would not provide copies of the charts or answers to the questions presented in the charts, refusing on the basis of subsection B of § 30-147. Your questions concern the treatment of these charts and information on the Forum under the Virginia Freedom of Information Act (FOIA). Further facts are set forth with each individual question below, as necessary.

Your first question asks whether the charts are public records as that term is defined in FOIA. Section 2.2-3701 defines a public record to include all writings and recordings...however stored, and regardless of physical form or characteristics, 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 charts in question are initially prepared by Lexis pursuant to contract with the Commission, then come into the possession of the Commission to be completed by Commission staff and returned to Lexis. There is no doubt that the Commission is a public body staffed by public employees, nor that the publication of the Code is in the transaction of the Commission's public business. Once given to the Commission, the charts are records in the possession of a public body and its employees in the transaction of public business. Additionally, under the facts you describe, the Commission staff prepares part of the chart (the answer column) in the transaction of public business. Thus the answer to your first question is yes, the charts are public records as defined in FOIA. As public records, the charts are subject to mandatory disclosure upon request unless a specific provision of law sets forth an exemption allowing the charts to be withheld.

Your second question asks whether a particular provision in the 2002 agreement establishing the Forum affects the Commission's duty to produce records under FOIA. You indicated that in this contract the participating publishers (Lexis, West, and Geronimo) agreed that the information on the Forum would be held confidential until a certain date. You indicated that the contractual terms appear to bind the participating publishers but not the Commission. You also cited a prior advisory opinion³ from this office for the proposition that merely indicating that a record is confidential has no effect under FOIA, and does not make an otherwise public record exempt. You indicated a concern that the Commission may feel bound by the publishers' nondisclosure agreement. This office has not read the agreement you mentioned and cannot offer any interpretation of its terms.

Your third question asks whether subsection B of§ 30-147 exempts the charts from disclosure under FOIA. The relevant portion of that subsection, as it pertains to records, reads as follows:

Trade secrets or proprietary information submitted by any person contracting or proposing to contract with the Commission in connection with the publication of (i) the Code of Virginia, (ii) the Virginia Administrative Code or (iii) any other materials published by the Commission shall not be subject to public disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). However, the person or firm shall invoke the protections of this subsection prior to or upon submission of the data or other materials to be protected and state the reasons why protection is necessary.

The facts you presented clearly establish that Lexis is a person⁴ contracting ... with the Commission in connection with the publication of (i) the Code of Virginia. It does not appear that a specific definition of trade secrets or proprietary information is provided in § 30-147, nor is a definition of those terms provided in FOIA. Background materials you provided indicate that the Code Commission has always in the past treated the charts as such trade secrets or proprietary information. The same background materials indicate that Lexis has followed the procedure set forth in subsection B of § 30-147 in invoking the protection from disclosure provided by that subsection. In presenting your question, you make the argument that the charts cannot be considered trade secrets or proprietary information based upon your interpretation of subsection B and the facts involved. In responding to your question, the authority of this office is limited by statute to FOIA matters.⁵ In regard to FOIA, it is the opinion of this office that if the conditions of subsection B of § 30-147 are met, then that subsection exempts the records from mandatory disclosure under FOIA. However, this office cannot offer an opinion that is based on an interpretation of law outside of FOIA (i.e., whether the charts in question are trade secrets or proprietary information as used in subsection B of § 30-147) and determinations of fact that can only be made by a court (i.e., whether the charts were in fact properly designated for protection under subsection B of § 30-147).

Your fourth question asks whether the Commission may impose a fee for providing access to the charts. In responding to a FOIA request, subsection F of § 2.2-3704 allows public bodies to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.⁶ Keep in mind that FOIA grants citizens and representatives of the news media rights to inspect and copy existing public records. The quoted charging provisions of FOIA would apply to such inspection and copying of existing copies of the charts.⁷ However, other types of access would not necessarily fall within the charging rules set forth in FOIA. For example, access to and membership on the Forum appears to provide more than the ability to inspect and copy existing records, by allowing Forum members to initiate inquiries, post replies, and interact directly with other publishers who are members. As such, access to the Forum does not appear to fall within the charging provisions of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Code §§ 30-145 through 30-155 establish the Commission and set forth its powers and responsibilities. Sections 30-146 through 30-149 pertain directly to the publication and editing of the Code.
²You indicated that the original publisher of the Code was the Michie Company, which is now owned by LexisNexis, a division of Reed Elsevier, Inc. The current publisher and its predecessors in interest are herein referred to as "Lexis" for simplicity.
³Freedom of Information Advisory Opinion 15 (2003).
⁴§ 1-230 defines person to include any individual, corporation, partnership, association, cooperative, limited liability company, trust, joint venture, government, political subdivision, or any other legal or commercial entity and any successor, representative, agent, agency, or instrumentality thereof.
⁵§ 30-179 sets forth the powers and duties of the FOIA Council.
⁶The FOIA Council publishes a general guide to charges available on its website at http://foiacouncil.dls.virginia.gov/ref/FOIACharges.pdf. Paper copies are available upon request.
⁷For the sake of argument, it is presumed for purposes of discussing the relevant charges that the charts are not being withheld as exempt under subsection B of § 30-147. If the charts are withheld, then a discussion of charges is moot.