|
|
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-06-13
June
20, 2013
Robert
McCabe
The Virginian-Pilot
Via Electronic Mail
The
staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing
staff advisory opinion is based upon the information
presented in your electronic mail message dated May
31, 2013.
Dear
Mr. McCabe:
You have asked whether records showing the amount
of a settlement agreement paid to a former public
employee are subject to disclosure under the Virginia
Freedom of Information Act (FOIA). As background,
you stated that the Virginia Port Authority (the Authority)
entered into a settlement agreement with its former
executive director in November, 2012. You made a request
the same month to the Authority for "a copy of
the severance agreement...including all the financial
terms." That request was denied pursuant to the
personnel records exemption. You made a new request
in April, 2013, after speaking with this office, for
"a copy of any records that show the amount of
the payment made to [the former executive director]
as part of the settlement - for example, an invoice,
a check, a payment schedule, or any other documents
that would show the dollar amount spent or to be spent."
This follow-up request was again denied pursuant to
the personnel records exemption. Additional background
information will be provided as needed below.
The general policy of FOIA expressed in subsection
A of § 2.2-3700 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.
Regarding public records, the policy continues by
stating that [u]nless a public body or its officers
or employees specifically elect to exercise an exemption
provided by this chapter or any other statute ...all
public records shall be available for inspection and
copying upon request. All public records ... shall
be presumed open, unless an exemption is properly
invoked. The same section goes on to state the
rule of construction for exemptions: Any 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. Note that the Supreme Court
of Virginia has consistently applied this narrow construction
rule when interpreting FOIA exemptions.1
When it denied your requests, the Authority cited
subdivision 1 of § 2.2-3705.1 as well as subsection
A of § 2.2-3705.8 (collectively "the personnel
exemption"). Subdivision 1 of § 2.2-3705.1
exempts from mandatory disclosure [p]ersonnel
records containing information concerning identifiable
individuals, except that access shall not be denied
to the person who is the subject thereof. Subsection
A of § 2.2-3705.8 provides in relevant part that
certain records - which might otherwise be considered
exempt as personnel records - must be disclosed:
Neither
any provision of [FOIA] nor any provision of [the
Government Data Collection and Dissemination Practices
Act] shall be construed as denying public access
to (i) contracts between a public body and its
officers or employees, other than contracts settling
public employee employment disputes held confidential
as personnel records under § 2.2-3705.1.
Reading
these sections together, it is clear that contracts
settling public employee employment disputes
may be withheld as personnel records, but other contracts
between a public body and its officers or employees
must be disclosed. In applying this rule to the facts
presented, it is clear that the Authority acted within
the bounds of FOIA when it withheld the severance
agreement as a personnel record, because that severance
agreement is a contract settling an employment dispute
between the Authority and the former executive director.
However, we must also consider your subsequent request
for any records showing the amount of any payments
made to the former executive director. In the case
of LeMond v. McElroy, the Supreme Court considered
a request for a settlement agreement and related accounting
records.2 The settlement agreement in LeMond arose
from a situation concerning an erroneous detention
of a citizen by a sheriff, rather than an employment
dispute, and so a different exemption was at issue.
However, the distinction between the settlement agreement
and the accounting records that was drawn by the Court
is informative of the present inquiry:
Second,
with regard to the accounting records...we do have
a precise description of the items which are sought
and which are being withheld: a payment request ...
for the final settlement check to be drawn, showing
the amount of the check and to whom the check is to
be made payable, and, a computer sheet showing the
amount paid as a result of the ... settlement. Assuming,
without deciding, that the "settlement agreement"
is exempt from disclosure under [a different
exemption], we hold that these accounting records
nevertheless must be produced for inspection and copying....These
are documents generated in connection with the payment
process, after the mutual agreement to settle. The
request for the settlement check was prepared to execute
the settlement agreement, and the computer sheet recorded
the expenditure of public funds.3
Thus
the Court drew a clear distinction between the settlement
agreement itself and accounting records reflecting
payments made pursuant to that agreement. Applying
the narrow construction rule to the facts, the Court
held that even if the settlement agreement was exempt,
the accounting records were not.4 Following
LeMond, this office previously opined that
individual documents reflecting the amount paid in
a settlement or to an attorney are public records.5
Note that while subsection A of § 2.2-3705.8
allows contracts settling employment disputes to be
withheld as personnel records, it expressly requires
records of the ... official salary or rate of
pay of, and records of the allowances or reimbursements
for expenses paid to any officer, official or employee
of a public body to be released upon request.
The implied policy is clear: the public gets to see
how its tax dollars are spent, even while personnel
records, including settlement agreements, may be withheld
from public disclosure.
Turning back to the facts you presented, in its second
denial of your request, the Authority stated that
"both sections 2.2-3705.8(A) and 2.2-3705.1(1)
of the Code of Virginia make the terms of any such
a contract or agreement including any payment thereunder
exempt from disclosure under FOIA." In applying
the narrow construction rule and the reasoning of
the Court cited above, we must respectfully disagree
with this assertion by the Authority. The plain language
of the quoted portion of subsection A of § 2.2-3705.8
addresses contracts, but says nothing about payment
or accounting records created pursuant and subsequent
to the settlement agreement. Rather than a narrow
construction as required by FOIA, the Authority's
interpretation of the exemption is expansive, as it
would exempt from disclosure records that are not
mentioned in the plain language of the exemption,
contrary to the policy of FOIA. Therefore it appears
that the Authority erred when it denied your request
for records of payments made (or to be made) pursuant
to the settlement agreement.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1See,
e.g., Fenter v. Norfolk Airport Authority, 274
Va. 524, 649 S.E.2d 704 (2007); White Dog Publ'g
v. Culpeper County Bd. of Supervisors, 272 Va.
377, 634 S.E.2d 334 (2006); Tull v. Brown,
255 Va. 177, 494 S.E.2d 855 (1998).
2239 Va. 515, 391 S.E.2d 309 (1990).
3Id., 239 Va. at 521, 391 S.E.2d
at 312-313.
4Id.
5Freedom of Information Advisory Opinion
14 (2000). |