VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-11-07

October 11, 2007

K. Leigh Purdum
Brightwood, VA

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 facsimile of August 3, 2007 and correspondence of September 6, 2007.

Dear Ms. Purdum:

You have asked multiple questions concerning a Citizens' Advisory Committee (the Committee) formed by the Sheriff of Madison County. Among other things, you requested a list of the names of those serving on the Committee, records concerning the criteria used to select Committee members, and information on the goals and objectives of the Committee. In reply, you were informed that such personal information was being withheld pursuant to subdivision 10 of § 2.2-3705.1. Additionally, you indicated that in response to this and other requests, the Sheriff and County Executive advised you that the Sheriff's Office is a constitutional office that does not fall within the requirements of a public body under the Virginia Freedom of Information Act (FOIA) except for purposes of complying with the public records provisions of FOIA. The Sheriff's response also indicates that you were provided copies of all relevant public records responsive to your request in the Sheriff's possession, except for the personal information withheld pursuant to subdivision 10 of § 2.2-3705.1. Your specific questions and further facts, as appropriate, are set forth below.

First, you ask whether the Sheriff's refusal to release the names of Committee members pursuant to subdivision 10 of § 2.2-3705.1 was a proper response to your request. This exemption allows a public body to withhold records, in its discretion, as follows:

Personal information, as defined in § 2.2-3801, including electronic mail addresses, furnished to a public body for the purpose 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.

Based upon various inquiries received by this office, it appears that confusion exists regarding the scope of this exemption, and whether it is in fact an exemption that applies to all personal information contained in public records generally. It is not such a general exemption. The policy set forth in § 2.2-3701 requires that [a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. Construing subdivision 10 of § 2.2-3705.1 narrowly, it is clear that two threshold conditions must be met before the exemption can apply: (1) the information to be withheld must have been furnished to a public body for the purpose of receiving electronic mail from the public body, and (2), the electronic mail recipient must have requested that the public body not disclose such information. Personal information provided for any other purpose than receiving electronic mail from a public body is not protected by this exemption,¹ nor can the exemption be invoked unless the recipient has first affirmatively requested that his or her information be withheld. This exemption cannot be used unless both of these threshold conditions are met. The essence of this exemption is to protect lists of valid electronic mail addresses from being retrieved as public records by unscrupulous online advertisers who might then "spam" the recipients with unsolicited electronic mail. The exemption is not a general exemption for all personal information contained in any and all public records. Under the facts you presented, a list of citizens appointed by the Sheriff to serve on the Committee is not personal information provided to a public body for the purpose of receiving electronic mail from a public body. Applying the narrow construction rule, this list cannot meet the first threshold requirement of the exemption, and therefore the exemption may not be invoked to withhold the list of Committee members. Because such a list fails to meet the first threshold requirement, there is no need to reach the factual question of whether, in fact, the Committee members may have requested that their personal information not be disclosed.

Your next question asks whether the Sheriff and County are correct that the Sheriff's Office is a public body subject to FOIA only for public records purposes, and is not otherwise subject to the requirements of FOIA. The definition of public body in § 2.2-3701 states that [f]or the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records.² FOIA generally has two main aspects, one addressing access to public records, the other addressing access to public meetings. Sheriffs and other constitutional officers simply do not hold public meetings of the type subject to FOIA, and are not considered public bodies for meetings purposes. However, as the quoted definition explicitly states, sheriffs and other constitutional officers are subject to FOIA for public records purposes. Therefore the answer to your question is yes, the Sheriff and County are correct that the Sheriff is subject to FOIA only regarding access to public records, and not for purposes of public meetings. Again, sheriffs and other constitutional officers simply do not hold public meetings of the type subject to FOIA, and therefore are not considered public bodies for meetings purposes.

Lastly, you stated that minutes of the first meeting of the Committee, provided to you in redacted form by the Sheriff, indicate that the Sheriff's opening remarks described how individuals were chosen and the purpose of [the Committee]. However, no further details elaborating upon the selection process or the purpose of the Committee were provided in the minutes you received. You indicated that you asked for records explaining the selection criteria and purpose of the Committee, but the Sheriff responded by stating that such records do not exist. You ask whether the Sheriff's own notes and comments on these matters should be reflected in the minutes or otherwise made available to the public. As of July 1, 2007, under subdivision B 4 of § 2.2-3704, a public body must inform a requester when [t]he requested records could not be found or do not exist. It would appear that the Sheriff acted in compliance with FOIA by informing you that the records you seek do not exist. Additionally, keep in mind that under subsection D of § 2.2-3704, no public body shall be required to create a new record if the record does not already exist. Therefore if the Sheriff has no records responsive to your request, he is not required by FOIA to create such records.

Additionally, to answer all aspects of this question, we must also determine whether the Committee in question is itself a public body subject to FOIA. If so, then the Committee would be required to keep minutes as set forth in subsection I of § 2.2-3707, which would be required to include, among other items, a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. The term public body is defined under § 2.2-3701, in relevant part, to include any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. Several prior published opinions have addressed whether citizen advisory committees are public bodies subject to FOIA. The Attorney General opined that a citizen advisory committee created by a city mayor to advise the mayor was not a public body because it is not created by a public body, does not perform delegated functions of a public body, does not advise a public body, and does not receive public funding.³ A more recent opinion of the FOIA Council found that a citizen advisory group created by the State Transportation Board is a public body because it was created by a public body (the Board) to advise a public body (the Board).⁴ Another opinion of the FOIA Council advised that an advisory group created by a mayor-elect was in essence a group of citizens advising another citizen (as the mayor-elect had not yet taken office), and so did not fall within the definition of a public body.⁵ Most recently, this office opined that a "task force" composed of twenty citizens appointed by a Board of Supervisors was itself a public body, as it was an entity of a public body created to advise the public body.⁶ The varying results of these prior opinions highlight the definitional requirement that in order for a committee or other similar entity to be considered a public body, it must have been created by another public body and perform a delegated function for, or provide advice to, that other public body. In this instance, it appears that the Committee was created by the Sheriff presumably to advise the Sheriff. While the Sheriff is considered a public body for records purposes, he is not a public body for meetings purposes. Likewise, the Committee created by the Sheriff is not a public body for meetings purposes. Therefore, the Committee is not subject to the meetings requirements of FOIA, and is not compelled to take minutes under the law. However, to the extent the Sheriff has notes or minutes regarding the Committee, those are public records subject to disclosure unless a specific exemption applies that would allow them to be withheld. Whether such an exemption applies depends on the specific contents of any such records. In this instance, the Sheriff stated that no such records exist, which response is in compliance with the requirements of FOIA. However, I note that while the Citizens' Advisory Committee created by the Sheriff is not a public body and is not required to hold public meetings, it may be beneficial to do so in the interest of positive public relations and public participation.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Note, however, that such personal information in other instances may be protected under other exemptions, such as is the case with personnel records, scholastic records, and health records, for example.
²The definition of public body was amended by the General Assembly in 2002 to include this language after a 2001 Virginia Supreme Court case wherein the Court held that constitutional officers were not public bodies subject to FOIA. See 2002 Acts of Assembly, c.393; Connell v. Kersey, 262 Va. 154, 547 S.E.2d 228 (2001).
³1978-1979 Op. Att'y Gen. Va. 316A.
⁴Freedom of Information Advisory Opinion 24 (2001).
⁵Freedom of Information Advisory Opinion 27 (2004).
⁶Freedom of Information Advisory Opinion 10 (2005).