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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-20
September
11, 2020
Barbara
Petersen
Via Email
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 messages from April
2020 through June 2020.
Dear
Ms. Petersen:
You have asked whether the denial of your request
to the Virginia Racing Commission (the Commission)
for certain license applications and supporting documentation
violated the Virginia Freedom of Information Act (FOIA).
As background, you stated that you requested a number
of license applications and supporting documentation
submitted to the Commission by the Colonial Downs
Group (the Group) in December 2019, the applications
for renewal submitted in 2020, and a copy of a revenue
sharing agreement between the Group and two other
organizations. You indicated that in reply the Commission
attached a copy of the requested revenue sharing agreement
but denied your request for the applications and supporting
documents, citing the exemption for information relating
to investigations of applicants and permits submitted
to the Commission, subdivision 1 of § 2.2-3705.3
of the Code of Virginia. That exemption excludes from
mandatory disclosure "[i]nformation relating
to investigations of applicants for licenses and permits,
and of all licensees and permittees, made by or submitted
to ... the Virginia Racing Commission [and certain
other public bodies]." You stated that it appears
to you that the exemption specifically applies to
records related to the investigation of an applicant,
but not the application or the supporting documents
submitted with the application, because an application
triggers an investigation and therefore the application
is not part of the investigative record—i.e., the
investigation does not begin until after the application
is received.
You
initially asked for an informal opinion that posed
two questions: first, whether subdivision 1 of §
2.2-3705.3 includes "the application and supporting
documentation, thus precluding disclosure of those
documents," and second, whether "the investigative
record, including the application and supporting documentation,
[is] subject to disclosure under Virginia law once
the investigation is complete." You followed
that inquiry with a request for a formal opinion regarding
the use of this exemption and how the Council and
state courts have interpreted it, particularly the
phrase "related to." In asking for the formal
opinion, you stated that, if these records "are
exempt during the investigation and remain exempt
after the investigation is complete and the license
awarded," it amounts to "a total blanket
of secrecy, precluding any opportunity for public
oversight and government accountability." You
also expressed your opinion that "[g]iven the
controversial nature of gambling and the recent expansion
of legal gambling in Virginia, [you] think it critically
important to have a full grasp of the secrecy afforded
to gambling license applicants." While noting
your concerns, this office can only interpret the
law as enacted by the General Assembly; it is up to
the legislature to decide such matters of public policy.
In
researching the issues presented, it appears that
interpretation of subdivision 1 of § 2.2-3705.3
is a novel question as there do not appear to be any
prior court decisions or advisory opinions from this
office or the Office of the Attorney General concerning
that exemption. Therefore, we turn to the policy of
FOIA and rules of statutory construction to guide
this analysis. The policy of FOIA expressed in subsection
B 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 ... Unless 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 and
meetings shall be presumed open, unless an exemption
is properly invoked.
The provisions of [FOIA] 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 records ...
shall be narrowly construed and no record shall
be withheld ... unless specifically made exempt
pursuant to this chapter or other specific provision
of law.
Consistent
with this policy, subsection A of § 2.2-3704
provides that "[e]xcept as otherwise specifically
provided by law, all public records shall be open
to citizens of the Commonwealth [and certain media
representatives]." As recently stated by the
Supreme Court of Virginia, "[i]n construing statutory
language, we are bound by the plain meaning of clear
and unambiguous language."1 In expressing the
same concept, the Court has previously stated:
While
in the construction of statutes the constant endeavor
of the courts is to ascertain and give effect to
the intention of the legislature, that intention
must be gathered from the words used, unless a literal
construction would involve a manifest absurdity.
Where the legislature has used words of a plain
and definite import the courts cannot put upon them
a construction which amounts to holding the legislature
did not mean what it has actually expressed.2
Additionally,
the Court has stated that "when ... a statute
contains no express definition of a term, the general
rule of statutory construction is to infer the legislature's
intent from the ... language used. When the legislature
leaves a term undefined, courts must give [the term]
its ordinary meaning, [taking into account] the context
in which it is used."3
As
a threshold matter, note that it is clear that the
Commission is a public body subject to FOIA and that
the application for licensure and supporting documentation
you seek are public records that, following the policy
and procedure provisions of FOIA, must be disclosed
unless a specific exemption allows them to be withheld.
The definition of "public body" in §
2.2-3701 includes, among other entities, "any
... commission ... of the Commonwealth." The
Commission is a commission of the Commonwealth created
pursuant to § 59.1-366 and therefore is a public
body subject to FOIA. The definition of "public
records" in § 2.2-3701 includes all types
of 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." The Commission
has statutory authority over horse racing licenses
and permits under Articles 2 and 3 of Chapter 29 of
Title 59.1 of the Code of Virginia, so the records
you sought clearly fall within the transaction of
the public business of the Commission. Therefore,
the records you seek are public records of the Commission
subject to FOIA.
Reexamining
your original inquiries, you asked whether subdivision
1 of § 2.2-3705.3 includes the application and
supporting documentation and, if those records are
exempt during the investigation, whether they remain
exempt once the investigation is complete and the
license has been issued. Turning to the statutory
language, "[i]nformation relating to investigations
of applicants for licenses and permits, and of all
licensees and permittees, made by or submitted to
[the Commission]" is exempt from mandatory disclosure.
The term "information" as used in the exemptions
of §§ 2.2-3705.1 through 2.2-3705.7 is defined
in § 2.2-3701 to mean "the content within
a public record that references a specifically identified
subject matter, and shall not be interpreted to require
the production of information that is not embodied
in a public record." Therefore, we must consider
whether the application and supporting documents reference
the identified subject matter of the exemption or,
in other words, whether they are "relating to
investigations of applicants for licenses and permits,
and of all licensees and permittees." The phrase
"relating to" is not defined by statute,
and therefore, following the rules of statutory construction,
we use its ordinary meaning. Dictionary.com provides
the following relevant definitions of the term relate:
to
bring into or establish association, connection,
or relation:
to relate events to probable causes.
to have reference (often followed by to).
to have some relation (often followed by to).4
Some
similar relevant definitions from Merriam-Webster
include the following:
:
to show or establish logical or causal connection
between
seeks to relate crime to poverty
: to have relationship or connection
the readings relate to his lectures
: to have or establish a relationship : interact
the way a child relates to a teacher5
In
your original inquiry to this office, you stated that
"an application triggers an investigation
and therefore the application is not part of the investigative
record. An investigation occurs after an
application is submitted." [Emphasis in original.]
It is my general understanding that you would be correct
that receipt of an application for a license or permit
is an event that triggers an investigation so that
the Commission can determine whether it will issue
a license or permit. As a consequence, the fact that
the application triggers the investigation establishes
that there is a relation, association, or causal connection
between the application and the investigation. In
other words, accepting your statement as true establishes
that the application and supporting materials submitted
by the applicant are information "relating to
investigations of applicants for licenses and permits,
and of all licensees and permittees." Additionally,
consider that the exemption contemplates "information
... made by or submitted to [the Commission],"
which would appear on its face to include information
submitted to the Commission by the applicant or others,
as well as information created by the Commission in
the course of an investigation. Therefore, following
the rules of statutory interpretation quoted above,
the application and supporting documents submitted
to the Commission are exempt pursuant to the plain
language of subdivision 1 of § 2.2-3705.3.
Next,
please note that the exemption does not depend on
the order of events, so the fact that an investigation
is not initiated until after an application is received
is not determinative of whether the exemption applies
to the application and supporting materials. As stated
above, the proper question is framed by the terms
of the exemption itself, i.e. whether the application
and supporting materials are "relating to investigations
of applicants for licenses and permits, and of all
licensees and permittees, made by or submitted to
[the Commission]." To read this language to exclude
the application itself based on the order of events
would be to read into the statute words that simply
are not there. Similarly, in turning to whether the
exemption ceases to apply once an investigation is
complete or after a license or permit is issued, there
is nothing in the statutory language that states that
the exemption may no longer be used after such an
event. Note that subdivisions 2, 3, 4, 9, 11, and
13 of the same section refer to "active"
investigations, but subdivision 1 does not. Similarly,
subdivisions 3 and 5 of the same section refer to
"inactive reports," subdivision 12 refers
to "an investigation that has been inactive for
more than six months," and subdivisions 7 and
11 refer to "completed investigations,"
but subdivision 1 does not use any similar language.
These examples demonstrate that if the General Assembly
wishes to limit the application of an investigative
exemption to active investigations, or trigger release
of records when a report is inactive or complete,
it can and will do so. As subdivision 1 of §
2.2-3705.3 does not use any such language, we cannot
interpret it to be so limited. Therefore, a public
body may continue to use subdivision 1 of § 2.2-3705.3
even after an investigation is complete and even if
a license or permit has been issued. However, noting
that, like most FOIA exemptions, subdivision 1 of
§ 2.2-3705.3 exempts certain records from mandatory
disclosure but still allows them to be disclosed in
the discretion of the custodian, the fact that an
investigation has been completed is something that
a custodian may wish to take into consideration in
deciding whether to release records even though they
may remain exempt.
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1Cole
v. Smyth Co. Bd. of Supervisors, (Va. Record
No. 171205, decided May 28, 2020, available at 2020
Va. LEXIS 56) (citation omitted).
2Transparent GMU v. George Mason University,
298 Va. 222, 240-241, 835 S.E.2d 544, 553 (Va. 2019)
(citation omitted).
3American Tradition Institute v. Rector
and Visitors of the University of Virginia, 287
Va. 330, 341, 756 S.E.2d 435, 441 (Va. 2014).
4https://www.dictionary.com/browse/relate
5https://www.merriam-webster.com/dictionary/relate |