VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-06-24

September 6, 2024

Alice Minium
Richmond, 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 September 12, 2023.

Dear Ms. Minium:

You have requested an advisory opinion relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) on whether or not Virginia citizens are entitled to access the records of actual compensation earnings, including overtime earnings, bonus pay, and actual gross compensation, for government officials or only to access the records of official salary or base rate of pay for such officials.

Factual Background

As background information, you submitted FOIA requests as part of an annual data collection effort to approximately 340 law-enforcement agencies in Virginia. For the purposes of this opinion, our understanding is that all of the law-enforcement agencies you contacted are subject to FOIA. In each request, you asked for a "roster of all sworn law enforcement employees on payroll [. . .] as of today's date." You also specified that you requested "the responsive records to include several types of data, including the following for each employee: salary pay, overtime pay, bonus pay, and total compensation for the last fiscal year." For each of these last three data points, you specified that "the figure provided should indicate the Fiscal Year 2023 Actual Payout."

You stated in your email to this office that you were "surprised to discover that while public bodies are mostly in consensus regarding their obligations to disclose official salary and rate of pay under § 2.2-3705.1(1) [of the Code of Virginia], there is no apparent consensus regarding their obligation to disclose employees' actual pay." You stated that you have received similar responses from a few law-enforcement agencies in which the "[o]fficial salary was provided, but overtime pay and bonus pay were withheld." However, you also stated that several other law-enforcement agencies "did opt to disclose employees' actual pay."

In your email, you also stated that "the contents of these records have only served to underscore the importance of accessing this data everywhere: employees' actual compensation and their base salary (or official rate of pay) are often drastically different numbers." You cited one example in which a law-enforcement agency disclosed that one of their officers "earned $86,993.66 in base salary pay for fiscal year 2023, but earned $143,487.13 in actual compensation." You noted that "$60,163.18 [of the officer's earned actual compensation] was earmarked as overtime pay."

As this office was aware of pending litigation between you and a law-enforcement agency in regards to access of the requested information, we requested that you clarify the actual matter to be litigated. You explained that the pending litigation between you and the law-enforcement agency was concerning the issue of access to an agency's roster of all sworn law-enforcement employees on payroll of that particular agency and not regarding access to the records of overtime and bonus compensation paid to public employees. You responded that the pending litigation currently in circuit court is "entirely unrelated and has no bearing on the subject at hand."

The FOIA Council adopted a policy regarding requests for advisory opinions on matters during or after litigation.¹ The policy requires this office to decline to issue an advisory opinion on a matter that is before a court or on which a court has ruled. However, in this instance, it is our understanding that the request for this advisory opinion is not an issue currently before or previously adjudicated by a court; the request is to determine whether the disclosure of information (i.e. 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") is mandatory as required in subdivision 1 of § 2.2-3705.1 of the Code of Virginia and whether overtime and bonus compensation paid to public employees is to be included when calculating an employee's official salary or base rate of pay.

FOIA Policy and Statutory Construction

FOIA policy, as stated in relevant part in subsection B of § 2.2-3700 of the Code of Virginia, 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." FOIA policy also states that "[t]he 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." In addition, "[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." Furthermore, 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 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.

Hence, "[a]ll public records shall be presumed open, unless an exemption is properly invoked." The requirement for interpreting exemptions as narrowly construed has commonly been referred to as "the narrow construction rule of FOIA."² Moreover, the Supreme Court of Virginia in Gloss v. Wheeler recognized this FOIA-specific rule of construction, stating that it "'puts the interpretative thumb on the scale in favor of' open government."³

Following the stated statutory policy, this office has stated that "exemptions must be 'narrowly construed' in favor of disclosure."⁴ Moreover, "if a statute does not specifically exempt a record from disclosure, it must be made available for public inspection and copying under FOIA."⁵ Thus, "if there is no question of interpretation and the statutory language at issue is clear and unambiguous, we follow its plain meaning."⁶

This office has previously opined that when analyzing a statutory exemption, we "apply rules of statutory construction as needed."⁷ The Supreme Court of Virginia has previously stated that:

Under fundamental rules of statutory construction, each statute must be examined in its entirety, rather than by isolating particular words or phrases. The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result. Thus, when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.⁸

In addition, the Court has also stated that "[e]very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary."⁹

Personnel and Law-Enforcement Exemptions

In this matter, an applicable exclusion to the provisions of FOIA¹⁰ may be found in subdivision 1 of § 2.2-3705.1 of the Code of Virginia, which states, in full, that:

The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with § 2.2-3704.01.

1. Personnel information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of such information and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such information shall be disclosed. 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.

No provision of this chapter or any provision of Chapter 38 (§ 2.2-3800 et seq.) 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; (ii) 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; or (iii) the compensation or benefits paid by any corporation organized by the Virginia Retirement System or its officers or employees. The provisions of this subdivision, however, shall not require public access to records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less.

As previously considered by this office, "[b]ecause 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."¹¹ Subdivision 1 of § 2.2-3705.1 of the Code of Virginia establishes a discretionary exclusion to FOIA that allows a public body to withhold "personnel information concerning identifiable individuals" from release publicly. Yet, this same exclusion in subdivision 1 of § 2.2-3705.1 of the Code of Virginia also contains a provision that requires that specified information such as "the 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" must be disclosed if requested. Hence, this exclusion to FOIA that allows for the withholding of personnel information contains its own exception that requires that certain information be disclosed. Additionally, noncriminal records prepared, owned, or possessed by law-enforcement agencies are to be administered in accordance with subsection D of § 2.2-3706 of the Code of Virginia, which provides, in relevant part, that:

Access to personnel records of persons employed by a public body engaged in emergency medical services or fire protection services, a law-enforcement agency, or an emergency 911 system or any other equivalent reporting system shall be governed by the provisions of subdivision B 9 and subdivision 1 of § 2.2-3705.1, as applicable.

Additionally certain records may be exempt from mandatory disclosure pursuant to subdivision B 9 of § 2.2-3706 of the Code of Virginia, which provides for the exemption of the following:

Records of (i) background investigations of applicants for law-enforcement agency employment, (ii) administrative investigations relating to allegations of wrongdoing by employees of a law-enforcement agency, and (iii) other administrative investigations conducted by law-enforcement agencies that are made confidential by law.

While this exemption would allow these types of records to be withheld, your inquiries "for the salary pay, overtime pay, bonus pay, and total compensation for the last fiscal year" paid to employees of law-enforcement agencies would not be excluded from disclosure by this exemption. Note also that another exemption to FOIA, subdivision B 8 of § 2.2-3706 of the Code of Virginia, provides for the exemption of:

Those portions of any records containing information related to undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details. Nothing in this subdivision shall operate to allow the withholding of information concerning the overall costs or expenses associated with undercover operations or protective details.

In addition, subdivision B 10 of § 2.2-3706 of the Code of Virginia provides that the identity of any undercover officer may be withheld from disclosure. In accordance with these exemptions and following the narrow construction rule of FOIA, the identity of undercover officers, which possibly includes the name, position, and job classification of the officers, may be withheld from disclosure. The "official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to" those individuals working as undercover officers still would be subject to disclosure, but the disclosure of such information may be in such a manner that the identity of the undercover officers is protected and not released publicly. Even so, subdivision B 8 of § 2.2-3706 of the Code of Virginia requires a law-enforcement agency to disclose the overall costs or expenses associated with undercover operations or protective details if requested. Because information on undercover law-enforcement officers was not the focus of your inquiry here or dispositive of the analysis of the issues in this matter, and is the subject of litigation, we will not consider that issue further in this opinion. However, it is important to acknowledge the existence of the exclusions in FOIA that allow for certain information regarding those individuals employed as undercover law-enforcement officers to be withheld from disclosure.

Nonetheless, in this matter, the applicable exclusion to FOIA may be found in subdivision 1 of § 2.2-3705.1 of the Code of Virginia, which provides a discretionary exemption for "personnel information concerning identifiable individuals" but requires the release of "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," among other records.

Applicable Case Law

Hawkins v. South Hill

In 2022, the Supreme Court of Virginia issued an opinion in the case Hawkins v. Town of South Hill that expounded on the exclusion for personnel information in subdivision 1 of § 2.2-3705.1 of the Code of Virginia.¹² In this matter, Mr. Hawkins requested documents from the Town of South Hill (Town) "relating to employment disputes involving the Town Manager and various employees."¹³ Following the response from the Town in which it provided many of the requested records but withheld some records from release pursuant to the FOIA exemption in subdivision 1 of § 2.2-3705.1 of the Code of Virginia, Mr. Hawkins filed a petition for a writ of mandamus in the Mecklenburg County Circuit Court requesting the release of the withheld records. Mr. Hawkins's petition asserted that the Town applied the FOIA "exemptions too broadly and withheld documents that should have been released or redacted."¹⁴ Mr. Hawkins "requested the circuit court to compel the Town to produce the requested documents, impose civil penalties under [FOIA], and award him his attorney’s fees and costs."¹⁵

After in camera review of the withheld records in accordance with Bergano v. City of Virginia Beach,¹⁶ the circuit court narrowed the focus of the dispute between the two parties to seven of the records requested by Mr. Hawkins. The circuit court "applied definitions of 'personnel record' from a previous version of the statute, instead of 'personnel information.'"¹⁷ The court determined that one record was not exempt, another was partially exempt, while five others were entirely exempt from disclosure. Additionally, "[t]he court did not address the issue of fees or whether Hawkins substantially prevailed."¹⁸ As a result, Mr. Hawkins appealed to the Supreme Court of Virginia "the partial denial of his petition for a writ of mandamus and the purported denial of his request for attorney’s fees and costs" by the circuit court.¹⁹

In Hawkins, the Supreme Court examined "the scope of the personnel information exemption to [FOIA]" and attempted to "reconcile the competing interests of open access to public records and the privacy expectations of government employees."²⁰ In their analysis of the plain meanings of “personnel information" in relation to "personnel records" the justices determined "that the only content exempt from disclosure is that which is tied to the employment of the individual in some way, and which otherwise would not be disclosed to the employer."²¹ The Supreme Court assessed that this provision of FOIA was not intended "to exempt all employment information from the view of the public, but only that which is private."²²

The Supreme Court, therefore, held that:

"[P]ersonnel information" for purposes of Code § 2.2-3705.1(1) [of the Code of Virginia] means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual's employment relationship with the entity, and are private, but for the individual's employment with the entity.²³

The Supreme Court recognized this office's previous analysis and determined that the definition for "'personnel information' exemption, like the 'personnel record' exemption before it, is a 'privacy-based exemption, designed to protect the subject of the record from the dissemination of personal information.'"²⁴ The Supreme Court held "that data, facts, and statements are private if their disclosure would constitute an 'unwarranted invasion of personal privacy' to a reasonable person under the circumstances."²⁵ The Supreme Court further expounded that "the 'precise contours' of what content qualifies as private are 'neither rigid nor precise' and require determination in the context of each case."²⁶

While acknowledging that the circuit court erred in its interpretation by allowing "the Town to withhold the entirety of all five documents at issue without any redactions, using definitions of 'personnel record' under a prior version of Code § 2.2-3705.1", the Supreme Court also recognized "that the trial court was without clear guidance on what constitutes 'personnel information' under [FOIA]."²⁷ The Supreme Court determined that "the trial court is in the best position to assess the 'precise contours' of what is private in the context of this case," and therefore, remanded "the case for further proceedings consistent with this opinion" for the trial court to review and, if necessary, redact and release the records at issue.²⁸ Moreover, because Hawkins failed to obtain a ruling from the circuit court as to who, if anyone, was the prevailing party or on the issue of attorney fees and costs, the Supreme Court found that Mr. Hawkins had waived those issues on appeal, and since there was no ruling to address on appeal, "consequently [affirmed] the circuit court on both assignments."²⁹

LeMond v. McElroy

In LeMond v. McElroy, the Supreme Court of Virginia considered a matter in which a requester sought to obtain copies of a "'settlement agreement,' a payment request for a settlement check to be drawn, and a computer sheet showing the amount paid in the settlement" between another citizen and a public body.³⁰ On behalf of the public body and its custodian of records, the Office of the Attorney General of Virginia (Attorney General) argued that the requested information was exempt from the mandatory disclosure requirements of FOIA pursuant to the exemption for legal memoranda and other work product compiled specifically for use in litigation.³¹ The Attorney General argued that the plain language of the exemption provided that the requested records were exempt from mandatory disclosure and also contended "that a settlement agreement is prepared and entered into by litigants for a single purpose, to bring an end to pending litigation."³² The Attorney General further argued that there was "quite simply, no nonlitigation purpose for preparing and executing a settlement agreement."³³ The requester's legal counsel asserted that settlement agreements are not compiled specifically for use in litigation but "are contracts between parties terminating a dispute, in effect, an alternative to litigation."³⁴ Furthermore, the requester's counsel contended that "accounting records reflecting payment of a settlement that are compiled in the ordinary course of business to record the expenditure of public funds are even further removed from the litigation process and plainly not 'compiled specifically for use in litigation.'"³⁵

As there was no record or description of the settlement agreement made available for in camera inspection, the Supreme Court refused "to decide the issue in a vacuum, without any idea of the precise nature of the document" and upheld the trial court's ruling but without approval.³⁶ The Court determined not to reverse the trial court's ruling "because the responsibility for presenting an adequate appellate record is upon the appellant who seeks reversal of the decision."³⁷ Unlike the settlement agreement, of which there was no record or description for the Court to review, and "without deciding, that the 'settlement agreement' is exempt from disclosure under [FOIA]," the Court held "that these accounting records nevertheless must be produced for inspection and copying."³⁸ The Court further concluded that "the accounting records in dispute are not documents 'compiled specifically for use in litigation,' construing the exemption narrowly according to its plain meaning."³⁹ The Court stated that "[t]hese are documents generated in connection with the payment process, after the mutual agreement to settle."⁴⁰ The Court also wrote that "[t]he request for the settlement check was prepared to execute the settlement agreement, and the computer sheet recorded the expenditure of public funds."⁴¹ Accordingly, the Court affirmed the order of the trial court and remanded the case "for an appropriate modification of the deadline for inspection and copying of the records and for service of the writ of mandamus upon LeMond."⁴²

Previous Advisory Opinions

Previously, this office has been presented with citizens' requests for release of copies of settlement agreements between public bodies and their officials or employees. In general, FOIA provides 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."⁴³ In following the Supreme Court of Virginia's holding in LeMond "that accounting records relating to a settlement agreement are subject to public disclosure," this office stated in a prior opinion that "individual documents reflecting the amount paid in a settlement or to an attorney are public record."⁴⁴ In a separate opinion, this office noted that in LeMond "the [Supreme] Court drew a clear distinction between the settlement agreement itself and accounting records reflecting payments made pursuant to that agreement."⁴⁵ This office recognized that by "[a]pplying the narrow construction rule to the facts, the [Supreme] Court held that even if the settlement agreement was exempt, the accounting records were not."⁴⁶ Thus, this office concluded that "[t]he 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."⁴⁷

Similarly, this office has received inquiries from citizens regarding requests to public bodies for the personnel and payroll records of their officials or employees. This office has considered that "[w]hile at first glance an employee's salary may appear to be very personal information, it in fact addresses the expenditure of the public's money generally" and "[t]hus the exclusion allows for this disclosure."⁴⁸ This office opined that:

Regarding personnel and payroll records, the personnel information exemption found in subdivision 1 of § 2.2-3705.1 [of the Code of Virginia] 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."⁴⁹

Moreover, "[p]ursuant to the personnel exemption in subdivision 1 of § 2.2-3705.1 of the Code of Virginia, 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."⁵⁰

In another instance, this office was asked to determine whether the timesheets of a public body's employee were subject to release or exempt from disclosure under the exclusion for personnel information.⁵¹After consideration, this office opined that "timesheets contain the type of information intended to be exempted," because "timesheets include more information than just job classification and rate of pay."⁵² Because timesheets "include more personal information, such as whether an employee has been out of the office frequently due to illness or has taken vacation," the release of timesheets could possibly be considered an invasion of privacy as they contain private information of a personal nature like an employee's health status.⁵³ However, this office also recognized that if a requester wishes "to inquire what was a particular individual's salary or rate of pay on a particular date or a series of dates, [then] that information would have to be disclosed."⁵⁴

Evidenced by the varied responses by the public bodies to your inquiry for information, several local law-enforcement agencies provided the overtime and bonus compensation paid to their officers either by choosing to exercise the discretion afforded by the statute to release the requested information or by interpreting this provision as requiring the disclosure of the requested information. Whereas other agencies cited this same statutory provision when deciding not to disclose the requested information. As to whether the exemption for personnel information in subdivision 1 of § 2.2-3705.1 of the Code of Virginia provides that the information regarding overtime and bonus compensation paid to public employees is included as part of the 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" that must be disclosed or whether a public body may withhold such information under the privacy exemption for personnel records requires further consideration.

This office has previously opined that:

Generally, subsection D of § 2.2-3704 [of the Code of Virginia] states that a public body does not need to create a new record in response to a FOIA request if the record does not already exist, but a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. However, because FOIA affirmatively requires that salary information be available for public access, a public body would be required to create such a record if it did not exist at the time of the request as an exception to the general rule stated above.⁵⁵

In another opinion the following year, this office stated that "in the case of records of salary and job position, public bodies have specific notice in the Code that these specific records are public records to which access must be granted, and to which no exemption applies."⁵⁶ Because a request for records of salary is an exception to the general rule that a public body does not need to create a record in response to a request, "nothing in FOIA should be construed to deny public access to 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."⁵⁷ This office further explained that "[b]ecause FOIA affirmatively requires that records of job position and salary be available to the public, a public body would be required to create a record containing that information if one did not already exist."⁵⁸

This office opined further that "it is unlikely that a public body [. . .] does not have any records indicating the salary of its employees," because "[p]ayroll records generated each pay period would contain information about salary."⁵⁹ Moreover, "FOIA does not require that a public body create a list of the salary information of all employees; it requires that salary records be open."⁶⁰ This office opined that "[i]f such a list exists, it must be provided,"⁶¹ and clarified that "[o]therwise, individual records of each employee's salary would satisfy the FOIA requirements."⁶²

Although acknowledging that "[w]hile FOIA does require that individuals' salary information be available to the public, it does not require that individuals' benefits information be disclosed."⁶³ A public body possesses the discretion to withhold benefits information from release "as a personnel record."⁶⁴ If "records include tax and benefits information that is exempt from disclosure, such records may be redacted pursuant to § 2.2-3704.01 of the Code of Virginia 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."⁶⁵ Nevertheless, bonus and overtime compensation paid to public officers, officials, and employees does not appear to qualify as benefits information.

Conclusion

FOIA affirmatively requires that "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" be made available to the public. Meanwhile, FOIA also authorizes withholding personnel information concerning identifiable individuals from release. The disclosure of overtime and bonus pay records might have implications of personal privacy, because this information may reveal additional information beyond that contained in a payment or accounting record (which would be open following LeMond), such as personnel information relative to merit-based or incentive-based bonuses, or information on tax withholdings (generally prohibited from release under § 58.1-3 of the Code of Virginia). Following the Supreme Court's guidance in the Hawkins case, the disclosure of overtime and bonus compensation paid by public bodies to their public officers, officials, and employees must be analyzed to determine whether it constitutes "'an unwarranted invasion of personal privacy' to a reasonable person under the circumstances."⁶⁶

Unfortunately, it does not appear that any Virginia court has considered this specific issue, so there is no controlling state precedent upon which to rely. However, it appears that other jurisdictions generally favor the release of salary, overtime, and bonus information. For example, Rhode Island's Access to Public Records law provides for the release of such information:

Personnel and other personal individually identifiable records otherwise deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et seq.; provided, however, with respect to employees, and employees of contractors and subcontractors working on public works projects that are required to be listed as certified payrolls, the name, gross salary, salary range, total cost of paid fringe benefits, gross amount received in overtime, and any other remuneration in addition to salary, job title, job description, dates of employment and positions held with the state, municipality, or public works contractor or subcontractor on public works projects, employment contract, work location, and/or project, business telephone number, the city or town of residence, and date of termination shall be public. For the purposes of this section "remuneration" shall include any payments received by an employee as a result of termination, or otherwise leaving employment, including, but not limited to, payments for accrued sick and/or vacation time, severance pay, or compensation paid pursuant to a contract buy-out provision. For purposes of this section, the city or town residence shall not be deemed public for peace officers, as defined in § 12-7-21, and shall not be released.⁶⁷

Similarly, regarding federal civil service, it appears that 5 C.F.R. § 293.311 (a)(4)⁶⁸ requires the release, among other records, of "[p]resent and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials)." New Jersey's Open Public Records Act, N.J.S.A. 47:1A-5(e), provides that "[i]mmediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information." Research revealed similar results in other jurisdictions demonstrating that, in general, it appears that release of this type of information is not considered an unwarranted invasion of personal privacy and is often explicitly required by statute.

However, while the Virginia personnel information exemption requires the release of "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," it does not explicitly require the release of bonus or overtime pay. As such, applying rules of statutory construction, we cannot read this language to require the release of overtime or bonus pay. Nevertheless, this office generally recommends releasing all information on overtime pay, bonuses, or other compensation. First, note that following LeMond, accounting records showing payments made to individuals would be open. Next, consider that information that is not specific to identifiable individuals, such as the rates used to compute overtime pay or information on bonuses given to all employees or across-the-board pay raises, would all be open to disclosure as such information would not qualify as personnel information specific to any identifiable individual. A requester could therefore ask for and receive individuals' salaries and rates of pay, as well as information on reimbursements and allowances paid to individuals, along with accounting records showing all payments made to individuals, and then get other information on bonuses, overtime rates, and other data that is not individually identifiable. Putting all of this information together a requester could then deduce an individual's overtime pay, bonuses, and other additional compensation to some degree of accuracy. Unfortunately, the actual degree of accuracy may vary and could lead to incorrect conclusions. It would generally be simpler, less expensive, less time consuming, and more accurate for a public body to disclose information on overtime pay, bonuses, and other compensation in the first place. Additionally, persuasive authority from other jurisdictions makes it appear likely that such information might not meet the Hawkins test as information that would constitute an unwarranted invasion of personal privacy were it to be released. For those reasons, this office encourages such disclosures as a matter of best practice even though these disclosures are not explicitly required by statute.

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

¹https://foiacouncil.dls.virginia.gov/litigation.pdf
²Freedom of Information Advisory Opinion 01 (2020) (See also Freedom of Information Advisory Opinions 02 (2023), 02 (2021), 04 (2020), 04 (2019), 03 (2015), 06 (2013) and 01 (2013)).
³Gloss v. Wheeler, 301 Va. 258, 279, 887 S.E.2d 11 (2023) (citing Fitzgerald v. Loudoun Cnty. Sheriff's Off., 289 Va. 499, 505, 771 S.E.2d 858 (2015)).
⁴Freedom of Information Advisory Opinion 02 (2021) (citing Virginia Dep't of Corrections v. Surovell, 290 Va. 255, 263, 776 S.E.2d 579, 583 (2015) (quoting Fitzgerald v. Loudoun County Sheriff's Office, 289 Va. 499, 505, 771 S.E.2d 858, 860-61 (2015)).
⁵Freedom of Information Advisory Opinion 04 (2019) (quoting Freedom of Information Advisory Opinion 07 (2003)).
⁶Freedom of Information Advisory Opinion 02 (2021) See, e.g., Cole v. Smyth County Bd. of Supervisors, 298 Va. 625, 636, 842 S.E.2d 389, 394 (2020) ("In construing statutory language, we are bound by the plain meaning of clear and unambiguous language." (quoting White Dog Publishing, Inc. v. Culpeper County Bd. of Supervisors, 272 Va. 377, 386, 634 S.E.2d 334 (2006))).
⁷Freedom of Information Advisory Opinion 09 (2019).
⁸Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted).
⁹Davis v. MKR Development, LLC, 295 Va. 488, 494, 814 S.E.2d 179, 182 (2018) (quoting City of Richmond v. Virginia Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016)).
¹⁰See footnote 1, Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 334 (The Supreme Court of Virginia concluded that "there is no practical distinction between the use of the terms 'exemption' and 'exclusion' within the context of [FOIA]. The Code, the parties, the trial court, and this Court's prior decisions have referred to 'exclusion' and 'exemption' interchangeably.").
¹¹Freedom of Information Advisory Opinion 07 (2002).
¹²See Hawkins v. Town of South Hill, 301 Va. 416 (2022).
¹³Id.. at 422.
¹⁴Id.
¹⁵Id.
¹⁶See Bergano v. City of Virginia Beach, 296 Va. 403 (2018).
¹⁷Hawkins at 423.
¹⁸Id.
¹⁹Id. at 422.
²⁰Id.
²¹Id. at 431.
²²Id. at 432.
²³Id.
²⁴Id. at 432 (citing Freedom of Information Advisory Opinion 04 (2003)).
²⁵Id. at 432 (citing Human Soc. of U.S. v. Fanslau, 54 A.D.3d 537, 538, 863 N.Y.S.2d 519, 520 (N.Y.App. Div. 2008).
²⁶Id. at 432 (citing Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 787 N.E.2d 602, 606).
²⁷Id. at 433.
²⁸Id. Note that while other jurisdictions have applied the "unwarranted invasion of personal privacy" standard in various contexts, other than Hawkins, it does not appear that any other Virginia court opinion has used the standard "unwarranted invasion of personal privacy" or has given specific examples of how it should be applied under different factual scenarios.
²⁹Id. at 434.
³⁰LeMond v, McElroy, 239 Va. 515, 518, 391 S.E.2d 309, 311 (1990).
³¹See id. at 517.
³²Id. at 519.
³³Id. at 519.
³⁴Id. at 519.
³⁵Id. at 519-520.
³⁶Id. at 520-521.
³⁷Id. at 521.
³⁸Id. at 521
³⁹Id. at 521.
⁴⁰Id. at 521.
⁴¹Id. at 521.
⁴²Id. at 521.
⁴³Freedom of Information Advisory Opinion 06 (2013).
⁴⁴Freedom of Information Advisory Opinion 14 (2000).
⁴⁵Freedom of Information Advisory Opinion 06 (2013).
⁴⁶Id. (citing LeMond, 239 Va. at 521, 391 S.E.2d at 312-313).
⁴⁷Freedom of Information Advisory Opinion 06 (2013).
⁴⁸Freedom of Information Advisory Opinion 07 (2002).
⁴⁹Freedom of Information Advisory Opinion 01 (2021).
⁵⁰Id.
⁵¹See Freedom of Information Advisory Opinion 07 (2002).
⁵²Id.
⁵³Id.
⁵⁴Freedom of Information Advisory Opinion 01 (2021).
⁵⁵Freedom of Information Advisory Opinion 11 (2003).
⁵⁶Freedom of Information Advisory Opinion 04 (2004).
⁵⁷Freedom of Information Advisory Opinion 04 (2015).
⁵⁸Freedom of Information Advisory Opinions 04 (2015), 04 (2004), and 11 (2003).
⁵⁹Freedom of Information Advisory Opinion 04 (2004).
⁶⁰Id.
⁶¹Id.
⁶²Id.
⁶³Id. Note that more generic information about benefits, such as benefits options available to all employees or to certain categories of employees, would not be exempt as personnel records because such information is not specific to any particular individual.
⁶⁴Id.
⁶⁵Freedom of Information Advisory Opinion 01 (2021).
⁶⁶See Hawkins at 432 (citing Human Soc. of U.S. v. Fanslau, 54 A.D.3d 537, 538, 863 N.Y.S.2d 519, 520 (N.Y.App. Div. 2008).
⁶⁷Rhode Island General Laws § 38-2-2 (4)(A)(I)(b) (available at http://webserver.rilin.state.ri.us/Statutes/TITLE38/38-2/38-2-2.htm)
⁶⁸Available at https://www.ecfr.gov/current/title-5/chapter-I/subchapter-B/part-293/subpart-C/section-293.311.

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