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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-21
January
21, 2021
Jon
Munch
Delaplane, Virginia
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 message and attachments
from November 2020.
Dear
Mr. Munch:
You
have asked the following two questions about a public
records request you made to Fauquier County under
the Virginia Freedom of Information Act (FOIA) and
the County's response:
(1)
whether records showing the payments made by Fauquier
County to the former Deputy County Administrator
pursuant to a settlement agreement are accounting
records subject to the mandatory disclosure provisions
of the Virginia Freedom of Information Act, and
therefore whether the County is required to provide
the records responsive to my August 1, 2020 FOIA
request; and
(2) whether Fauquier County is required under the
Virginia Freedom of Information Act to provide salary
and rate of pay information of individual specified
employees (and former employees) for specific date(s)
and ranges of dates, and therefore, whether the
County is required to provide the records responsive
to my October 26, 2020 FOIA request.
As
background, you stated that the County issued a press
release on March 5, 2020, announcing the resignation
of the former Deputy County Administrator and another
press release in June 2020 announcing the appointment
of a new Deputy County Administrator. You wrote that
you made numerous requests for information related
to payments that the County has made pursuant to a
settlement agreement between the County and the former
Deputy County Administrator, beginning with a request
on June 25, 2020, that asked for "a query from
the County's payroll system that would have provided
the gross amount of each pay, the aggregated total
of all payroll deductions for that pay, and the net
pay to the former Deputy County Administrator."
You were given some records in response but told that
your request would be better directed to the Payroll
Division of the Fauquier County Department of Human
Resources. After some discussion with the Director
of Human Resources, you stated you made another request
on August 1, 2020, for "accounting records showing
all payments made to [the] former Deputy County Administrator,
between March 5, 2020 and July 31, 2020" and
"the date of each payment and the amount of each
payment." You stated that the reply provided
the annual salary amount of the former Deputy County
Administrator as of the time of separation, but no
information as to the amount(s) of payments made pursuant
to the settlement agreement. In denying the rest of
your request, the reply cited the personnel exemption,
subdivision 1 of § 2.2-3705.1 of the Code of
Virginia, and said that your request
seeks
private information related to the payroll records
of a specific identified employee. These are private
records comprising information from within a confidential
personnel file that are exempt from disclosure pursuant
to Code of Virginia Section 2.2-3705.1(1). The only
information that the Virginia General Assembly has
removed the employee's right to privacy is: '… records
of the name, position, job classification, 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.'
You
wrote that you repeated your request for the dates
and amounts of each payment, asserting that the payments
were not payroll records, but rather accounting records
showing disbursements made for the purpose of executing
the terms of a settlement agreement, and that you
cited the Supreme Court of Virginia's case LeMond
v. McElroy1 and Freedom of Information
Advisory Opinion 06 (2013). You wrote that your request
was again denied, and the reply from the County stated
that your request
made
in the form of a database query would effectively
produce a weekly payroll check stub for a specific
identified individual. This detail would include
benefit information, which is confidential and exempt
pursuant to Section 2.2-3705(A)(4) (see Virginia
FOIA Advisory Opinion AO-04-04) and federal and/or
state tax withholding that is confidential pursuant
to state and federal law, therefore, not subject
to FOIA pursuant to Section 2.2-3704(A).
You
stated that you responded multiple times that you
did not seek a database query, only accounting records,
but were again denied, this time in a letter dated
September 9, 2020, that stated that "You are
not entitled to copies of, or information contained
within, each biweekly paycheck for an individual identified
employee pursuant to Code of Virginia § 2.2-3705.1(1)."
You made a new request on October 26, 2020, asking
for the former Deputy County Administrator's salary
and rate of pay during a certain date range, to which
the County "responded with a copy of the previously
provided letter and a report from the financial system
aggregating the total of all salaries and benefits
paid for the entire Department of County Administration,
but no records pertinent to my request for the salary
and rate of pay of the former Deputy County Administrator
on the dates specified in the request." You indicated
that you disputed this reply as nonresponsive to your
request but have not had further communication with
the County.
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." In
interpreting FOIA's provisions, the same subsection
directs that 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 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.
The
term "public record" is defined in §
2.2-3701 to include all types of records "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." FOIA requires that a public
body respond within five working days of receiving
a request with one of the five responses allowed pursuant
to subsection B of § 2.2-3704.2 However,
subsection D of § 2.2-3704 provides that "no
public body shall be required to create a new record
if the record does not already exist." FOIA further
requires in § 2.2-3704.01 that, if records are
withheld, "only those portions of the public
record containing information subject to an exclusion
under this chapter or other provision of law may be
withheld, and all portions of the public record that
are not so excluded shall be disclosed."
Regarding
personnel and payroll records, the personnel information
exemption found in subdivision 1 of § 2.2-3705.1
generally excepts from mandatory disclosure "[p]ersonnel
information concerning identifiable individuals"
but requires that some such information must be disclosed,
including "records of the name, position, job
classification, 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."3 Prior opinions
from this office and the Attorney General of Virginia
have opined that this exemption applies to those records
maintained by a public agency that identify an employee,
his rank or classification, rate of pay, performance,
job history, employee evaluations, specifics as to
the nature of employment, professional qualifications,
and employment applications. Because of the nature
of certain information contained within a personnel
file, the personnel record exemption is a privacy-based
exemption, designed to protect the subjects of the
records from the dissemination of personal information
while still showing the public how its tax dollars
are spent.4 In looking at whether individual
employees' timesheets would be exempt as personnel
records, we opined that "timesheets include more
information than just job classification and rate
of pay. They include more personal information, such
as whether an employee has been out of the office
frequently due to illness or has taken vacation."5
In considering a situation where a public body created
a spreadsheet showing salary and other personnel information,
we opined that while there is an affirmative disclosure
requirement for certain information including salary
or rate of pay, there is no requirement to create
a new record as a public body could redact existing
payroll records to disclose the required information.6
Regarding
accounting records, certain exemptions may allow specific
types of financial data to be withheld under specific
circumstances, and subdivision 13 of § 2.2-3705.1
exempts from mandatory disclosure "[a]ccount
numbers or routing information for any credit card,
debit card, or other account with a financial institution
of any person or public body," but otherwise
there is no general exemption for accounting records.
In LeMond, the Supreme Court of Virginia
held that accounting records related to a settlement
agreement must be disclosed, even if the settlement
agreement itself was exempt from disclosure. The Supreme
Court described the accounting records in that case
as follows:
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.7
This
office has consistently followed the Supreme Court's
holding in LeMond in prior advisory opinions.8
As previously opined by this office, the Supreme Court
drew a clear distinction between the settlement agreement
itself and accounting records reflecting payments
made pursuant to that agreement and held that even
if the settlement agreement was exempt, the accounting
records were not.9 Additionally, we observed that 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.10
Turning
to the questions and facts you presented, you first
asked whether records showing the payments made by
the County to the former Deputy County Administrator
pursuant to a settlement agreement are accounting
records subject to mandatory disclosure under FOIA
that should have been provided in response to your
August 1, 2020, request. The facts you presented indicated
that your initial request in June 2020 asked for "a
query from the County's payroll system," but
that the August 1, 2020, request specifically asked
for "accounting records showing all payments
made to [the] former Deputy County Administrator"
within a certain date range. It appears that the County
provided a computer printout showing certain aggregate
accounting records, noted the dates that biweekly
payroll payments were made within that date range,
and provided the official salary of the former Deputy
County Administrator, but it denied your request for
records about specific payments to the former Deputy
County Administrator. The denial from the County dated
September 4, 2020, included the statement that "[t]he
limits of information available about an individual
public employee's compensation cannot be overlooked
by calling each biweekly paycheck an accounting record."
Given this background, it appears that there may be
a misunderstanding about your request or perhaps an
unresolved factual question here, as it is not clear
what records the County actually has regarding payments
to the former Deputy County Administrator after she
resigned. You asked for payments made after March
5, 2020, the date of the County press release announcing
that the former Deputy County Administrator had resigned.
You have asserted that these were payments made under
a settlement agreement after the Deputy County Administrator
left employment with the County and therefore, following
the holding in LeMond, records showing those
payments would have to be disclosed. However, it appears
that the County characterizes these payments as payroll
records that are exempt as personnel information,
rather than as accounting records, despite the apparent
fact that the former Deputy County Administrator's
resignation had already been announced. Unfortunately,
this appears to present a factual question regarding
what records the County actually has and whether those
records contain exempt personnel information. As this
office is not a trier of fact, only a court has the
authority to resolve such a question. However, note
the language used by the Supreme Court in LeMond:
"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."11
Following this language, presuming you are correct
about payments being made to the former Deputy County
Administrator after her resignation, records of such
payments would appear to be "documents generated
in connection with the payment process, after the
mutual agreement to settle," which the Supreme
Court has indicated must be released. Whether such
payments are processed as accounting records or through
a payroll system would not appear to affect that result,
as the essential nature of the records as showing
payments to an individual would be the same. However,
noting that the County indicated that the records
include tax and benefits information that is exempt
from disclosure, such records may be redacted pursuant
to § 2.2-3704.01 so that the gross payment amount(s)
would be disclosed as the Supreme Court has indicated
but exempt tax and personnel information may be withheld.
Turning
to your second question, you asked whether the County
is required to provide salary and rate of pay information
of individual employees (and former employees) for
specific date(s) and ranges of dates and, therefore,
whether the County is required to provide the records
responsive to your October 26, 2020, FOIA request.
You indicated that your October 26, 2020, request
sought "disclosure of the former Deputy County
Administrator's salary and rate of pay during a series
of date ranges." Pursuant to the personnel exemption
in subdivision 1 of § 2.2-3705.1, the salary
or rate of pay of any officer, official, or employee
of a public body must be disclosed if it exceeds $10,000
per year. If you wish to inquire what was a particular
individual's salary or rate of pay on a particular
date or a series of dates, that information would
have to be disclosed. Note that in this instance it
appears that the County did disclose the former Deputy
County Administrator's salary; presuming there were
no changes to that salary in the specified date range,
that disclosure would be sufficient to satisfy this
request.
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1239
Va. 515, 391 S.E.2d 309 (1990).
2The five responses may be summarized as
follows: 1) provide the records; 2) deny the request
entirely pursuant to an appropriate exemption; 3)
provide some of the records and deny the rest pursuant
to an appropriate exemption; 4) state that the records
cannot be found or do not exist; or 5) invoke an additional
seven work days to respond.
3Note that the exemption also provides
that "records of the official salaries or rates
of pay of public employees whose annual rate of pay
is $10,000 or less" need not be disclosed. My
understanding is that such employees would be temporary
or part-time employees only; that provision would
not be applicable under the facts you have presented
regarding the former Deputy County Administrator.
4Freedom of Information Advisory Opinion
07 (2002) (internal quotations and footnotes omitted).
5Id.
6Freedom of Information Advisory Opinion
04 (2004).
7LeMond, 239 Va. at 521, 391 S.E.2d
at 312-313.
8See Freedom of Information Advisory
Opinions 06 (2013), 01 (2011), and 14 (2000).
9Freedom of Information Advisory Opinion
06 (2013).
10Id.
11Supra, n.6.
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