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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-07-15
September 2, 2015
Jasbinder
Singh
Town Council Member
Herndon, 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 electronic mail message dated July
11, 2015 and the attachment and links contained therein.
Dear
Mr. Singh:
You
have asked seven enumerated questions about the release
of information concerning topics discussed during
closed meetings of a town council. As background,
you stated that you are member of the Town Council
of the Town of Herndon, and that the Council held
closed meetings to discuss the purchase of certain
real estate. Specifically, you informed this office
that the Town had previously purchased one and a half
parcels of real estate in downtown Herndon - one full
parcel ("Block E") and half of the adjacent
parcel ("Block D"). You wrote that the Town
had planned to purchase the other half of Block D
from its current owner at an opportune time. In 2013,
the Town ordered an appraisal of the value of the
property owned by the Town (Block E and half of Block
D), as well the value of both parcels if the privately-owned
half of Block D was also included (Block E and all
of Block D). You indicated that the Town calculated
the value of the privately-owned half of Block D by
subtracting the appraised value of the Town-owned
parcels from the appraised value of the combined parcels.
In 2014, you stated that the owner of the other part
of Block D indicated an interest in selling his portion
of Block D, but his asking price was about 67% higher
than the appraised value computed by the Town in 2013.
You stated that the Town ordered a second appraisal,
stating the 2013 appraisal was "bad." The
2014 appraisal calculated the value of the privately-owned
parcel as approximately 84% higher than the 2013 appraisal,
approximately 10% higher than the owner's asking price.
You further stated that after the purchase price had
been negotiated and the Town was getting ready to
hold a public hearing to approve the contract, you
wrote and published two articles about this matter
where you discussed the fairness of the purchase price
and the process used to set the negotiating range,
respectively, but did not disclose the appraised values.
You wrote that you also made comments at the public
hearings. You stated your concern that the public
had no knowledge of the appraisals and the process
used in negotiations. Further background information
will be provided along with the consideration of each
of your questions below.
Before turning to your specific questions, first note
the policy of the Virginia Freedom of Information
Act (FOIA) stated in subsection B of § 2.2-3700,
which states in relevant part as follows:
By
enacting this chapter, the General Assembly ensures
the people of the Commonwealth ... free entry to
meetings of public bodies wherein the business of
the people is being conducted. The affairs of government
are not intended to be conducted in an atmosphere
of secrecy since at all times the public is to be
the beneficiary of any action taken at any level
of government. Unless a public body or its officers
or employees specifically elect to exercise an exemption
provided by this chapter or any other statute, every
meeting shall be open to the public ....All public
... meetings shall be presumed open, unless an exemption
is properly invoked.
The
provisions of this chapter shall be liberally construed
to promote an increased awareness by all persons
of governmental activities and afford every opportunity
to citizens to witness the operations of government.
Any exemption from public access to ... meetings
shall be narrowly construed and no ... meeting closed
to the public unless specifically made exempt pursuant
to this chapter or other specific provision of law.
This chapter shall not be construed to discourage
the free discussion by government officials or employees
of public matters with the citizens of the Commonwealth.
In
regard to meetings, this policy makes abundantly clear
that the purpose of FOIA is to enable citizens to
witness meetings of public bodies so that they know
what their government is doing. Closed meetings are
exceptions to that purpose that must be given narrow
construction, and FOIA is not to be construed to prevent
discussions of public matters between government and
citizens. This policy is implemented through the procedures
and exemptions set out in §§ 2.2-3707 through
2.2-3712. Sections 2.2-3711 and 2.2-3712 set out the
allowed purposes for which a meeting may be closed,
and the procedure for convening and certifying a closed
meeting, respectively. Specific provisions of law
will be discussed as appropriate in response to each
of your questions.
Your first question asked whether FOIA permits the
Town Manager, the Mayor, or a majority of the Town
Council to withhold from another Council member records
such as appraisals, an architect's memo, and staff
calculations. As background to this question, you
wrote that the Town Council held a closed meeting
to discuss the price range for negotiating to purchase
the privately-owned portion of Block D. You stated
that the Town Manager presented an estimate from an
architect of the number of apartments that could be
built on the property, and that this estimate that
was used to set a negotiating price range. You stated
that the Town Manager declined to name the architect
who had provided the estimate. Further, when you asked
to review the appraisals, you stated that the Mayor
agreed to let you review them in the Town Manager's
office over the next two weeks, but later decided
to give paper copies to all Council members.
This office recognizes that in order to carry out
their duties certain government officials and employees
will have access to records and meetings that other
citizens do not. However, the general rule for FOIA
purposes as previously stated by this office is that
nothing in FOIA establishes additional, separate,
or different rights for elected officials or public
employees.1 FOIA grants public records
access rights to citizens of the Commonwealth and
certain news media representatives in subsection A
of § 2.2-3704. When a government official or
employee makes a request pursuant to FOIA, he or she
is acting in his or her capacity as a citizen of the
Commonwealth. FOIA does not address requests made
in any other capacity. Therefore your right to see
an appraisal under FOIA is the same as that of any
other citizen of the Commonwealth. There is an applicable
exemption in this instance, subdivision 8 of §
2.2-3705.1, which allows a public body to withhold
[a]ppraisals and cost estimates of real property subject
to a proposed purchase, sale or lease, prior to the
completion of such purchase, sale or lease. Given
that the record at issue was an appraisal subject
to a proposed purchase, this exemption would have
allowed the record to be withheld from any citizen
under FOIA.
However, I note that you also wrote that you asserted
your right to see the appraisals before making your
decision on them as a Council member. Any other legal
rights you may have as a Council member would be outside
of FOIA and therefore outside the purview of this
office. In general terms, it is my understanding that
public bodies conduct public business as a body by
motion and vote of at least a quorum of members. In
this context, individual members act by proposing
motions, speaking either for or against any given
motion, and then voting, but the authority of local
governing bodies is held by the body, not by the individual
member. While it may be presumed that individual members
of public bodies will be given access to appropriate
background materials and information as needed to
allow the members to make informed decisions, as stated
above, FOIA itself does not provide for any special
access rights for government officials or employees.
Note also that FOIA does not set forth any rules of
parliamentary procedure, although it does require
that votes be made in open meetings held in accordance
with FOIA.2 You may wish to consult your Town Attorney
or other legal counsel to ask whether any other provisions
of law outside of FOIA do grant additional or different
rights of access to Town Council members.
Your second question asks whether records such as
appraisals, summaries of appraisals, or an architect's
memorandum created for discussion with the Council
in a closed meeting are subject to mandatory disclosure
under FOIA. Regarding the appraisals, subdivision
8 of § 2.2-3705.1 would exempt them from mandatory
disclosure as described above. Additionally, subdivision
5 of the same section provides an exemption for
[r]ecords recorded in or compiled exclusively for
use in closed meetings lawfully held pursuant to §
2.2-3711. However, no record that is otherwise open
to inspection under this chapter shall be deemed exempt
by virtue of the fact that it has been reviewed or
discussed in a closed meeting. Following this
exemption, if the records at issue were recorded
in or compiled exclusively for use
in the closed meeting, then they would be exempt from
mandatory disclosure. [Emphasis added.] However, if
the records were prepared for uses other than use
in closed meetings, then they would not be exempt
under this provision.
Your third, fourth, and fifth inquiries will be addressed
together as the answer to all of them is essentially
the same. For your third question, you stated that
you published an article discussing what had transpired
in the closed meeting well after the Council had approved
the contract to purchase the privately owned portion
of Block D. You stated that the article did not discuss
the two appraisals. You asked whether you could have
published the article sooner without violating FOIA.
Your fourth question asked whether a council member
could release information from the appraisals or other
documents to the public after the Council has approved
the purchase price in a closed meeting, and if so,
in what manner. Your fifth inquiry was presented as
a series of questions regarding what information may
be disclosed to the public, whether disclosure of
the appraisals themselves would violate FOIA, and
whether the factors used to determine the appraised
values could be discussed without violating FOIA.
The answer to all of these inquiries is that as a
general rule FOIA does not prohibit you from speaking
publicly or disclosing public records to which you
have been made privy.3 One must keep in
mind that the purpose of FOIA is to provide access
to government records and meetings so that the public
can know what government is doing. In enacting exemptions
that allow certain records to be withheld and certain
topics to be discussed in closed meetings, the General
Assembly has allowed certain records and portions
of meetings to be withheld or discussed outside the
public view based on principles related to privacy,
public safety, protection of the public purse, and
similar concerns. The General Assembly has chosen
not to set out prohibitions on the disclosure of public
records or limits on free speech in FOIA itself.4
There are laws, however, outside of FOIA that contain
such prohibitions and limits in specific instances.5
I do not know of any specific laws prohibiting the
release of real estate appraisals and similar documents.
The FOIA exemptions mentioned above, subdivisions
5 and 8 of § 2.2-3705.1, are both discretionary
exemptions prefaced with language common to nearly
all FOIA records exemptions: The following records
are excluded from the provisions of this chapter but
may be disclosed by the custodian in his discretion,
except where such disclosure is prohibited by law.
Given this discretionary language, FOIA allows these
records to be released by the custodian even though
such release is not mandatory.
Your sixth question presents three alternative scenarios
and asks who is the custodian of the appraisal records
under FOIA in each situation: 1) who is the custodian
generally, 2) what if the Town does not distribute
copies to the Council members at any time, and 3)
what if Town staff has reviewed the appraisals. As
previously opined by this office, FOIA does not define
the term custodian, but does use the term
in referring to who receives and responds to records
requests under FOIA, and who exercises discretion
regarding exempt records. Observing the lack of a
statutory definition and turning to common usage of
the term custodian, this office has previously
described a custodian as one in charge
of something. The same opinion observed that
that definition of custodian makes sense
when considered in conjunction with the statutory
definition of public records in § 2.2-3701,
which includes records prepared or owned by, or
in the possession of a public body or its officers,
employees or agents in the transaction of public business.
A later opinion also found guidance in the Virginia
Public Records Act (VPRA), which provides a similar
definition of the term custodian in §
42.1-77 to mean the public official in charge
of an office having public records. In the context
of your question, and following prior opinions, then,
the term custodian for FOIA purposes is dependent
on preparing, owning, or possessing public records.6
It would appear that generally, as the executive in
charge of the locality that has the records, the Town
Manager would be the custodian of Town records, including
appraisals, and ultimately would be the official responsible
to respond to requests for inspection or copying of
the public records of the Town under FOIA. Specific
facts that differ from the usual might change who
is the custodian of a particular record. For example,
if a request was made for copies of an individual
Council member's constituent correspondence about
a Town issue, and only the Council member has copies
of that correspondence, then the Council member would
be the custodian of those records.
In the second scenario you present, where the Town
does not distribute copies to the Council members,
the Town Manager is still the custodian of these records.
In the alternative, if copies were distributed to
the Council members, then those Council members would
have copies in their possession, but the Town Manager
is still the custodian for FOIA purposes. FOIA does
not prohibit individual Council members from sharing
or disclosing their copies, but doing so prior to
the execution of a contract may lead to political
and other problems such as adversely impacting the
Town's bargaining position. Politically, it may cause
an internal rift with your fellow Council members.
As previously stated, public bodies conduct public
business as a body by motion and vote, and the authority
of local governing bodies is held by the body, not
by the individual member.
Regarding the third scenario, whether Town staff has
reviewed the appraisals would not appear to have any
effect on who is the custodian of them, although it
might have bearing regarding the application of the
exemption for records prepared exclusively for use
in closed meetings. That exemption would not apply
to records prepared for other uses outside of a closed
meeting.
Your seventh and final question asked whether FOIA
permits a Town to withhold the release of appraisals
or other documents indefinitely, or, at least until
the Town sells the properties, even if it takes six
to 12 months to do so. As stated in reply to your
first question, FOIA provides an exemption from mandatory
disclosure for [a]ppraisals and cost estimates
of real property subject to a proposed purchase, sale
or lease, prior to the completion of such purchase,
sale or lease. Therefore the time period during
which the record may be withheld is not a specific
term, but lasts until the completion of such purchase,
sale or lease. In this case, it appears that
the development plan includes both the initial purchase
and subsequent sale of the property, and that the
same appraisals are being used in both transactions.
If this is the case, then the appraisals may be withheld
until the sale is completed. This opinion is predicated
on the understanding that the sale in question will
follow the purchase in sequence as part of the original
development plan. However, this does not mean an appraisal
used in purchasing a property may be withheld indefinitely
until some vague, hypothetical sale is completed at
some unknown future date.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Freedom
of Information Advisory Opinion 02 (2014).
2See § 2.2-3710.
3There is only one such prohibition contained
within FOIA itself, and it is not relevant to the issues
presented in this opinion. Subdivision A 3 of §
2.2-3706 provides as follows: The identity of any
individual providing information about a crime or criminal
activity under a promise of anonymity shall not be disclosed.
4But see n. 3, id.
5A comprehensive list is beyond the scope
of this opinion, but as examples of prohibitions see
§§ 19.2-389 (prohibiting the release of criminal
history records except in certain circumstances) and
58.1-3 (tax secrecy).
6AO-02-14, supra n. 1 (internal
footnotes omitted).
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