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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-23
November
8, 2023
Joshua
Stanfield
Yorktown, Virginia
Request received 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 email of January 22, 2023.
Dear
Mr. Stanfield:
You have asked whether or not documents and communications
of members of Governor-elect Youngkin's transition
teams are public records subject to release upon request
pursuant to the Virginia Freedom of Information Act
(§ 2.2-3700 et seq. of the Code of Virginia)
(FOIA) when public funds are involved in funding transition
team activities.
Factual Background
As background information, on November 28, 2021, you
emailed Senator Tommy Norment, Jr., as the leader
of "the Commonwealth transition team for Governor-elect
Youngkin" and requested records in accordance
with FOIA for "copies of all documents and electronic
communications mentioning or related to [his] position
as head of this transition team or any activity of
the team thus far." On December 2, 2021, Senator
Norment responded to your request by stating that
"the requested records could not be found or
do not exist as public records subject to [FOIA]."
In a follow-up email to Senator Norment on December
1, 2021, you requested that the Senator cite the specific
statutory exemption to FOIA that the Senator was applying
to your request. Senator Norment responded that same
day that his office "does not have any public
records as defined in § 2.2-3701 of the Code
of Virginia" in regard to your request. Senator
Norment also directed you to contact the Virginia
Freedom of Information Advisory Council (the Council)
with any additional questions.
On November 28, 2021, you also emailed Senator David
Suetterlein as the leader of "the Education transition
team for Governor-elect Youngkin" requesting
records in accordance with FOIA for "copies of
all documents and electronic communications mentioning
or related to [his] position as head of this transition
team or any activity of the team thus far." On
December 5, 2021, Senator Suetterlein responded that
his office "has approximately fifty emails and
documents responsive to your request." He also
added that "these records are exempt from disclosure
under § 2.2-3705.7(2) of the Code of Virginia,
and therefore will not be released."
On November 28, 2021, you also emailed Delegate Kathy
Byron as the leader of "the Labor transition
team for Governor-elect Youngkin" requesting
records in accordance with FOIA for "copies of
all documents and electronic communications mentioning
or related to [her] position as head of this transition
team or any activity of the team thus far." On
December 5, 2021, Delegate Byron responded that her
office "has approximately 20 emails and documents
responsive to your request." She also added that
"these records are exempt from disclosure under
§ 2.2-3705.7(2) of the Code of Virginia, and
therefore will not be released."
On November 28, 2021, Senator Jill Vogel responded
to a records request that you made in accordance with
FOIA for "copies of all documents and electronic
communications mentioning or related to [her] position
on the Governor-elect's transition team or any activity
of the team thus far." Senator Vogel denied your
request by responding that "[a]s you may know,
by law these records are exempt from disclosure under
§ 2.2-3705.7(2) of the Code of Virginia."
On November 28, 2021, you requested the Senator to
"identify with reasonable particularity the volume
and subject matter of withheld records" and to
clarify whether the Senator's "correspondence
and working papers are exempt, and that the records
I'm requesting are in fact your correspondence and/or
working papers?" You also requested the Senator
to "exercise [her] discretion allowed in §
2.2-3705.7 to release the reported non-disclosure
agreements used in the transition process." You
further claimed that it was your "understanding
that the use of NDAs in this public transition process
has never happened before in Virginia." Senator
Vogel responded on December 3, 2021, that she did
"not have any relevant inventory of materials
to report." She also expressed that you may not
be "aware of the distinction in FOIA rules as
they apply in this context" and suggested that
you contact the Executive Director of the Council
for clarification.
On November 29, 2021, Senator Siobhan Dunnavant responded
to a records request that you made in accordance with
FOIA for "copies of all documents and electronic
communications mentioning or related to [her] position
on the Governor-elect's transition team or any activity
of the team thus far." Senator Dunnavant denied
your request by responding that "[a]s you may
know, by law records you have requested are exempt
from disclosure under § 2.2-3705.7(2) of the
Code of Virginia."
On
December 1, 2021, you emailed Senator Amanda Chase
"as part of the transition team for Governor-elect
Youngkin" requesting records in accordance with
FOIA for "copies of all documents and electronic
communications mentioning or related to [her] position
on this transition team or any activity of the team
thus far." On December 7, 2021, Senator Chase's
office emailed a response instructing you that "[r]equests
for FOIA need to go through the Senate Clerk's Office."
On
December 1, 2021, you emailed Aubrey L. Layne "as
part of the transition team for Governor-elect Youngkin"
requesting records in accordance with FOIA for "copies
of all documents and electronic communications mentioning
or related to [his] position on this transition team
or any activity of the team thus far." On December
1, 2021, Mr. Layne emailed a response to you suggesting
that you contact "the Communications Director
For Governor Elect Younkin [sic]."
On December 7, 2021, you submitted a request for information
to the Virginia Department of General Services (DGS)
seeking records that: "(1) [m]ention or contain
the proposed or actual budget for the transition or
any financial breakdown of transition-related expenditures"
and "(2) [c]ontain a list of transition officials
with any government email addresses assigned to [the
transition team]." On December 28, 2021, the
Director of Communications for DGS provided you information
regarding your request for transition budget items
and communicated to you that "[w]hile expenditures
have occurred, a breakdown of those expenditures will
not be available until the transition period has ended."
Moreover, she notified you that "DGS does not
possess any documents responsive to your request for
a list of transition officials with government email
addresses."
On
December 29, 2021, you submitted a FOIA request to
the Virginia Information Technologies Agency (VITA)
for "copies of all documents and electronic communications
that: (1) [m]ention or contain the proposed or actual
budget for the 2021–22 transition or any financial
breakdown of transition-related expenditures; (2)
[c]ontain a full or partial list of 2021–22 transition
officials with any government email addresses assigned
to them." The FOIA Officer for VITA initially
responded that they have received your FOIA request
and would respond by the statutory deadline of January
6, 2022. On January 6, 2022, the FOIA Officer for
VITA responsible for providing copies of applicable
records responded as follows:
With
respect to the first part of item 1, budget, VITA
submitted a decision package that reflects the IT
budget. A copy of that package is available from
the DPB [Department of Planning and Budget] website
at http://publicreports.dpb.virginia.gov/rdPage.aspx?rdReport=OB_DocView&Param1=58787142
The
2021 Appropriation Act incorporated that budget
at Item 479(R). See https://budget.lis.virginia.gov/item/2021/2/HB1800/Chapter/1/479/
VITA
does not have records responsive to the second part
of item 1, expenditures, and does not expect to
have any such records until some time [sic] after
the transition is complete.
With
respect to item 2, a list of email addresses, VITA
does not concede that we are the proper custodian
of that information. Email data and addresses of
other agencies generally is [sic] not obtainable
from VITA under FOIA because those are records of
the other agencies and VITA is not the custodian
of such records. See Va. Code 2.2-3704(A)&(J);
Va. Code 42.1-85(B). In this case, however, VITA
is producing the information requested - the attached
list of 36 gov-elect.virginia.gov email addresses.
Analysis
You have asked whether or not documents and communications
of members of Governor-elect Youngkin's transition
teams are public records subject to release upon request
under FOIA when public funds are involved in funding
transition team activities. This question necessarily
requires that we determine whether a Governor-elect's
transition teams are public bodies subject to FOIA,
whether the records of those transition teams are
public records subject to FOIA, and if those records
are public records, whether they are exempt as working
papers and correspondence pursuant to subdivision
2 of § 2.2-3705.7. Each of these issues is addressed
separately below.
Whether
a Governor-elect's transition teams are "public
bodies" subject to FOIA
First, we need to determine if a Governor-elect's
transition teams are public bodies under FOIA. Then,
we can examine whether the documents and communications
of members of these transition teams are public records
subject to FOIA. Section 2.2-3701 defines a "public
body" in relevant part as:
any legislative body, authority, board, bureau,
commission, district, or agency of the Commonwealth
or of any political subdivision of the Commonwealth,
including counties, cities, and towns, municipal
councils, governing bodies of counties, school boards,
and planning commissions; governing boards of public
institutions of higher education; and other organizations,
corporations, or agencies in the Commonwealth supported
wholly or principally by public funds. It shall
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.
From the outset, it is apparent that these transition
teams do not fall within the first two clauses of
the definition, so we must instead focus on whether
these transition teams are "other organizations,
corporations, or agencies in the Commonwealth supported
wholly or principally by public funds" or whether
they are any "other entity however designated
of the public body created to perform delegated functions
of the public body or to advise the public body."
The Governor-elect's transition teams appear to be
composed of a mix of elected officials and private
citizens. Participation by private sector or citizen
members does not necessarily prevent these teams from
being considered public bodies nor does it automatically
cause them to be deemed public bodies. A determining
factor in this matter may be a further examination
of the purpose for these transition teams and their
role in advising an elected official who has yet to
assume office.
The
Supreme Court of Virginia has previously opined on
"whether members-elect of a public body could
be considered 'members' for purposes of determining
whether a violation of the meetings rules of FOIA
had taken place."1 The Supreme Court held that
"a 'member-elect' was not a 'member' as contemplated
in the plain language of the statute."2 Consistent
with the Supreme Court's ruling, this office released
an advisory opinion that an elected official is not
a "member" of the government "until
he actually takes office."3 Thus, a Governor-elect
does not possess any official governmental authority
or responsibility until he is inaugurated as Governor.
Moreover, our office recognized that advisory groups,
such as a Governor-elect's transition teams in this
instance, are organized to advise a private citizen.4
Even though several members of the Governor-elect's
transition teams hold elected office in their own
right, their roles on the transition teams are separate
from their elected positions. These members who serve
on the transition teams are likely advising and assisting
the Governor-elect in preparing for the responsibilities
associated with his newly elected office. These transition
teams' purposes are to ease a Governor-elect's transition
from a private citizen to the role of the Commonwealth's
chief executive.
In
a similar matter, the Attorney General of Virginia
previously issued an opinion 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."5 Prior
opinions of this office have considered "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."6
In this instance, it appears that the transition teams
were created by the Governor-elect who has no official
authority or capacity until he is sworn into office
at his inauguration. The transition teams were not
created by nor were they performing any delegated
functions for another public body. Furthermore, these
transition teams were not advising a public body but
were advising a private citizen. For those reasons,
it appears that a Governor-elect's transition teams
are not "other [entities] however designated
of [a] public body created to perform delegated functions
of the public body or to advise the public body."
Next, we consider whether a Governor-elect's transition
teams are public bodies based on whether these transition
teams receive public funding. The definition of a
"public body" in § 2.2-3701 includes
"other organizations, corporations, or agencies
in the Commonwealth supported wholly or principally
by public funds." This office has previously
opined on numerous occasions the meaning of "supported
wholly or principally by public funds."7 Prior
advisory opinions have promoted as a guideline that
for an entity to be considered a public body, the
entity must receive "at least two-thirds, or
66.6 percent, of its operating budget from government
sources," but that "ultimately the question
of whether an entity is supported principally by public
funds is a question of fact that must be decided on
a case-by-case basis."8 For example, the Circuit
Court of Buchanan County cited from prior Council
opinions and found in Voice v. Appalachian Regional
Community Services, Inc. that "whether an
organization is 'supported . . . principally by public
funds' depends on the total contribution from public
funds as measured against the number and magnitude
of individual private contributions."9 Moreover,
the court held that "an organization was a public
body subject to FOIA because it received at least
54.94 percent of its funds from a county in the form
of three checks, and the rest of its support came
from 'a number of smaller payments from a variety
of private sources.'"10
In
the Agency Narrative section of the "Decision
Package" record provided to you by DGS, it establishes
that every four years, DGS serves as the lead agency
in coordinating efforts with Capitol Police, the Secretary
of Administration's Division of Selected Agency Support
Services (DSASS), VITA, the State Police, and other
affected entities to ensure an orderly transfer of
power for the three top statewide officials: the offices
of Governor, Lieutenant Governor, and Attorney General.
This record also explains that DGS files budget requests,
tracks expenditures and allocations, and coordinates
work with other state agencies for Transition and
Inauguration activities. The provided record also
shows that DGS establishes transitional office space
for newly elected officials and transition staff after
the elections in November while also handling the
transition to permanent office space after the inauguration.
Additionally, the record describes that DGS manages
the transition of the Governor's Executive Mansion
between incumbent and newly elected First Families.
The provided record also states that DGS acts as the
main coordinator for the logistical planning and security
for the inauguration by supervising the purchase,
installment, and removal of all event infrastructure
with other state agencies.
Records provided by DGS in response to your request
show that for fiscal year 2022, general funds totaling
$2,157,495 were requested for allocation to various
state agencies to facilitate the transfer of the offices
for the Governor ($1,801,502), Lieutenant Governor
($188,090), and Attorney General ($167,903) from the
prior administration to the present one.11 From the
general fund, $511,057 was specifically allocated
to DGS to support anticipated costs for the inauguration
in January 2022.12 The provided documents also show
that these funds were to be used toward the purchase,
rent, transportation, installation, and removal of
inauguration infrastructure and equipment, such as,
but not limited to, bleachers, portable toilets, signage,
tents, chairs, landscaping (preparation and repair),
sound systems, JumboTrons, and monitors.13 Nevertheless,
the budget records provided to our office do not show
that any public funds were given to the Governor-elect's
transition teams, as opposed to being spent directly
by DGS or other state agencies involved in the transition.
It is unclear what amount of financial support, if
any, the Governor-elect's transition teams received
from public funds. Unfortunately, given this factual
background, our office does not have sufficient information
on the sources of funds to determine whether the transition
teams were supported wholly or principally by private
or public funds. Thus, our office is unable to state
definitively whether the transition teams are or are
not public bodies based on support by public funds.
Whether the transition teams' records are "public
records" subject to FOIA
The definition of "public records" in §
2.2-3701 includes "all writings and recordings
. . . 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."
Therefore, in order to meet this definition, there
are three basic elements: (i) there must be a record
of any type and stored in any manner; (ii) the record
must be "prepared or owned by, or in the possession
of a public body or its officers, employees, or agents";
and (iii) the record in the possession of such body
or agent must be "in the transaction of public
business." Presuming that the records you requested
do exist, then the first element of the definition
is satisfied and we need only consider the second
and third elements of the definition.
Addressing
the second element, if a Governor-elect is considered
a private citizen and his transition teams are not
considered public bodies as previously discussed,
then transition team records at first blush would
not meet the definition of "public records"
in § 2.2-3701 because they would not be "prepared
or owned by . . . a public body or its officers, employees,
or agents." However, if a Governor-elect's transition
teams are found to be public bodies due to being supported
wholly or principally by public funds, then this aspect
of the definition would be met. Additionally, this
second element could be satisfied if any transition
team records come into the possession of another public
body such as one of the other public bodies involved
in the transition. In such a hypothetical situation,
such records could be requested from the other public
body (in this instance, whichever one of the other
agencies involved in the transition hypothetically
has these records in its possession). As making this
determination would require knowledge of facts that
are not before us, we can only conclude that the second
element may or may not be satisfied depending on whether
the transition team is a public body based on support
by public funds and whether transition team records
came into the possession of other public bodies.
Turning to the third element, whether or not a Governor-elect's
transition teams' records are "in the transaction
of public business" requires further analysis.
The purpose of these transition teams may be generally
considered to be political in nature and activity.
As a Governor-elect has yet to assume office, he possesses
no authority or capacity to conduct public business
until inaugurated. Likewise, his transition teams'
capability to perform business on behalf of the citizens
of the Commonwealth are also restricted because although
some members also serve in public offices, their activities
as transition team members are separate from their
public business as public officials. A complete examination
of whether any action, decision, or policy taken by
a Governor-elect or his transition teams prior to
his entering office has legal authority or effect
is outside the scope of FOIA. For example, if perchance
there was some circumstance whereby a Governor-elect
was not inaugurated, the legality of any proposed
policy or appointment made prior to assuming office
would be a matter to be determined by a court. FOIA
provisions apply to public bodies and officials as
defined in § 2.2-3701 but for reasons stated
previously FOIA does not apply to private citizens.14
Thus, until a Governor-elect assumes the Office of
Governor and holds the authority and power to act
as such, he is considered a private citizen and not
subject to FOIA.
Additionally,
as observed above, it is possible that transition
team records might come into the possession of one
of the public bodies involved in the transition and
be used by that public body in the transaction of
its public business. If this were to occur, then those
records would be public records subject to FOIA in
the possession of whichever public body held them,
and a requester could seek them from that public body.
As a hypothetical example, if someone on a transition
team communicated with DGS about the logistic preparations
for the inauguration, records of such communications
would be part of DGS's public business in carrying
out its role in regard to the transition and therefore
could be requested from DGS, even if the transition
team itself is not a public body engaged in the transaction
of public business.
Whether the transition teams' records are exempt
as working papers and correspondence
In the event that a Governor-elect's transition teams'
records are found to be "public records"
(either because the transition teams are publicly
funded and therefore are public bodies or because
the transition teams' records are in the possession
of another public body in the transaction of public
business), further analysis is required in determining
whether the exemption for working papers and correspondence
cited by various transition team members under subdivision
2 of § 2.2-3705.7 applies in this instance. This
exemption allows a public body to withhold the following
records:
Working papers and correspondence of the Office
of the Governor, the Lieutenant Governor, or the
Attorney General; the members of the General Assembly,
the Division of Legislative Services, or the Clerks
of the House of Delegates or the Senate of Virginia;
the mayor or chief executive officer of any political
subdivision of the Commonwealth; or the president
or other chief executive officer of any public institution
of higher education in the Commonwealth. However,
no information that is otherwise open to inspection
under this chapter shall be deemed excluded by virtue
of the fact that it has been attached to or incorporated
within any working paper or correspondence. Further,
information publicly available or not otherwise
subject to an exclusion under this chapter or other
provision of law that has been aggregated, combined,
or changed in format without substantive analysis
or revision shall not be deemed working papers.
Nothing in this subdivision shall be construed to
authorize the withholding of any resumes or applications
submitted by persons who are appointed by the Governor
pursuant to § 2.2-106 or 2.2-107.
As used in this subdivision:
"Members of the General Assembly" means
each member of the Senate of Virginia and the House
of Delegates and their legislative aides when working
on behalf of such member.
"Office of the Governor" means the Governor;
the Governor's chief of staff, counsel, director
of policy, and Cabinet Secretaries; the Assistant
to the Governor for Intergovernmental Affairs; and
those individuals to whom the Governor has delegated
his authority pursuant to § 2.2-104.
"Working papers" means those records prepared
by or for a public official identified in this subdivision
for his personal or deliberative use.
This
office has opined on several previous occasions about
this discretionary exemption for working papers and
correspondence.15 Prior opinions have provided the following
three factors as general guidelines when analyzing
the application of the working papers exemption found
in subdivision 2 of § 2.2-3705.7:
1.
The purpose for which the record was created;
2. The person for whom the record was created;
3. Whether the official who holds the exemption
has disclosed the record to others and, if so, whether
that disclosure was (i) necessary or desirable to
further the official's own deliberative process
or (ii) dissemination beyond the personal or deliberative
use of the official who holds the exemption.16
Now,
applying these guidelines to the existing matter,
we examine the purpose for which the records were
created "keeping in mind that records intended
for use by others do not become exempt working papers
merely because they are received by an official to
whom the exemption is available."17
Given the factual background presented, our office
can only surmise the purpose, content, and extent
to which persons had access to the records as no records
of the transition teams were provided to us. Our office
has previously concluded that "[i]f a factual
dispute about the content or purpose of the records
exists, a court of law is the appropriate place to
make any necessary determinations of fact."18
The Supreme Court of Virginia has stated that "as
a threshold matter, a court's in camera review
of the records constitutes a proper method to balance
the need to preserve confidentiality of privileged
materials with the statutory duty of disclosure under
VFOIA."19
This
office has stated previously that the intent of the
working papers exemption is to promote "decision-making
creativity with an ongoing zone of privacy [which]
ultimately benefits the public by encouraging the
free-flow of ideas by government employees and officials."20
"To the extent that the communications are prepared
for the chief executive officer for his personal or
deliberative use, the 'working papers' exemption may
be properly invoked."21 However, we must first
address the question of whether a Governor-elect qualifies
for the exclusion under subdivision 2 of § 2.2-3705.7.
FOIA's policy statement set forth in subsection B
of § 2.2-3700 directs 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." Following this narrow construction
rule, it appears that a Governor-elect would not qualify
under the definition for the "Office of the Governor"
as defined in the statute. Just as the Supreme Court
of Virginia held that "members-elect" are
not "members" of public bodies, we cannot
construe a Governor-elect to be the same as the Governor.
In analyzing the plain language of subdivision 2 of
§ 2.2-3705.7, a Governor-elect is not included
in the statute as written and therefore cannot use
this exemption.
However,
as several members of the transition teams are also
members of the General Assembly, and as such are included
within the plain language of subdivision 2 of §
2.2-3705.7, they may utilize the exemption to withhold
their working papers and correspondence. The other
members of the transition teams who are not officials
identified in the exemption itself but are private
citizens would not qualify under the exemption provided
for working papers and correspondence because it is
limited only to those public officials and employees
identified in the statute.
Conclusion
In summary, it would appear that the Governor-elect's
transition teams may not be public bodies (unless
they are principally supported by public funds) and
many, if not all, of their records probably would
not be "public records" subject to the requirements
of FOIA since their activities would be considered
political business as opposed to public business.
Unfortunately, our assessment is necessarily inconclusive
due to incomplete financial information concerning
the transition teams' amount of support by public
funds. Finally, given the plain language of subdivision
2 of § 2.2-3705.7, this exemption may not be
used by a Governor-elect or citizen members of a Governor-elect's
transition teams but may be used by members of the
General Assembly.
Thank you for contacting this office. We hope that
this opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
Joe
Underwood
Senior
Attorney
1Beck
v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004).
2Id., 267 Va. at 487-88, 593 S.E.2d
at 197-198.
3Freedom of Information Advisory Opinion
27 (2004).
4See Freedom of Information Advisory
Opinion 11 (2007).
51978-1979 Op. Att'y Gen. Va. 316A.
6Freedom of Information Advisory Opinion
11 (2007) (emphasis in the original).
7See Freedom of Information Advisory
Opinions 05 (2017), 01 (2015), 07 (2012), 10 (2008),
07 (2007), 07 (2006), 09 (2005), 28 (2004), 03 (2004),
and 09 (2003).
8Id.
9Voice v. Appalachian Regional Community
Services, Inc., 89 Va. Cir. 284 (Buchanan County
2014) (finding that an organization that received
54.94 percent of its support from public funds was
a public body); Wigand v. Wilkes, 65 Va.
Cir. 437 (City of Norfolk 2004) (finding that a corporation
that received approximately 25 percent of its support
from public funds was not a public body).
10Voice, 89 Va. Cir. at 287.
11Introduced Senate Bill 1100 (2021 Session),
Item 479(S).
12Id.
132021–2022 Transition and Inauguration
Budget Estimate.xlsx.
14See Freedom of Information Advisory
Opinion 27 (2004).
15Freedom of Information Advisory Opinions
08 (2018), 01 (2016), 02 (2015), and 17 (2004).
16Id.
17Freedom of Information Advisory Opinion
02 (2015).
18Freedom of Information Advisory Opinion
08 (2018).
19Hawkins v. Town of South Hill, 87
S.E.2d 408, 416 (Va. 2022) (alterations and citations
omitted).
20Freedom of Information Advisory Opinions
02 (2015) and 17 (2004).
21Freedom of Information Advisory Opinion
01 (2000). |