2024 Advisory Opinions Issued

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

ADVISORY OPINIONS ISSUED

2024

Opinion No.	Issue(s)
February
AO-01-24	Discusses the circumstances under which a pro se petitioner becomes eligible to obtain reimbursement of attorney fees after hiring an attorney to represent the petitioner in a FOIA matter or during the appeal process. A court would have to determine that a petitioner's rights and privileges were denied in violation of law, that the petitioner had substantially prevailed on the merits of his case, and that there were no special circumstances that would make the awarding of attorney fees and costs unjust. The court would have to determine the amount of attorney fees and costs that were incurred by a petitioner in the litigation proceedings and award a reimbursement amount accordingly.
AO-02-24	A public body shall not be required to create a new record if the record does not already exist; however, a public body is required to provide to a requester, unless otherwise specifically provided by law, a public record in the medium requested if the public record is identified with reasonable specificity and if that medium is used by the public body in the regular course of business.
AO-03-24	Generally, federal FOIA is limited in that it only applies to federal agencies and does not extend to state agencies. However, some federal laws are worded so that they do apply to other public bodies, including state agencies. FOIA provides that public records must be disclosed except as otherwise specifically provided by law. Therefore, if a federal law provides that disclosure of information is prohibited, and that law is written so that it applies to state agencies, then a state agency would be prohibited from releasing that information and would cite the federal law as the appropriate legal authority when withholding the records in response to a FOIA request.
May
AO-04-24	The exemption for a closed meeting relating to discussion of actual or probable litigation does not require that legal counsel be present at the discussion. Briefings pertaining to actual or probable litigation may be performed by staff members or consultants. Conversely, the exemption for a closed meeting pertaining to consultation with legal counsel employed or retained by a public body regarding specific legal matters does require that legal counsel be present accordingly. Public notice of a special, emergency, or continued meeting must be reasonable under the circumstances and shall be given contemporaneously with the notice being provided to the members of the public body conducting the meeting.
July
AO-05-24	FOIA does not require a public body to charge a requester at all, but if charges are assessed, FOIA provides that a public body may only do so within the stated limitations. A public body may assess charges for the production of requested records which includes the hourly rate of pay for the staff that researched and responded to the request and cost of copies. Charges must be limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records. FOIA requires that a public body make all reasonable efforts to supply the requested records at the lowest possible cost. Fees for fringe benefits are a general cost associated with transacting the general business of the public body. Any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body is not allowed under FOIA. There is the expectation of a "good faith" effort by public officials, employees, and staff members to conduct a search for records in responding to FOIA requests. FOIA does not require any public body's officials, employees, or staff members to recuse themselves from a records request. It is the responsibility of these officials, employees, and staff members trained in the requirements and provisions of FOIA to understand how to respond to requests in accordance with the law on behalf of the public bodies they serve.
September
AO-06-24	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. 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. Nevertheless, this office generally recommends releasing all information on overtime pay, bonuses, or other compensation. 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.
November
AO-07-24	Any response by a public body to a FOIA request for public records shall comply with the provisions of subsection B of § 2.2-3704 of the Code of Virginia. The working papers exemption in subdivision 2 of § 2.2-3705.7 of the Code of Virginia was designed to provide a zone of privacy for the deliberative process of the designated officials. Any record labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party. If a record has already been disclosed publicly, then the working papers exemption does not apply and the records must be released, if requested. The exclusion for correspondence in subdivision 2 of § 2.2-3705.7 of the Code of Virginia applies to all written communications such as letters, emails and text messages sent or received by the designated officials. Pursuant to Lawrence v. Jenkins (Va. 1999), a technical violation of FOIA procedure does not change the fact that the records are exempt if a valid exemption applies. FOIA access rights are generally equal for all citizens with no individual having greater access rights to public records than another individual unless otherwise provided by law. FOIA provides that there is a fundamental duty for a public body to collaborate with a requester in production of the records requested. Any search for records made under FOIA must be carried out in a good faith effort by a public body's officers and employees.
AO-08-24	FOIA policy provides that all public records are presumed open for inspection or copying, unless an exemption is properly invoked. There is a fundamental duty in FOIA for a public body to collaborate with a requester in the production of the records requested. FOIA does not prohibit or restrict access rights under the attorney-client or principal-agent relationships. Virginia law recognizes the legitimacy of legal representation and the principal-agent relationship and such associations do not conflict or contradict with the provisions of FOIA.
AO-09-24	As a general principle for FOIA, an entity that receives at least two-thirds, or 66.6 percent, of its operating budget from government sources would be supported wholly or principally by public funds. However, 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. Money received through competitive grants and from procurement transactions are more akin to public contracts negotiated between independent parties at arms' length than an appropriation of funds and are not to be considered public funds for purposes of determining whether an entity is a public body. A private entity does not become a public body solely because the private entity provides goods or services to a public body through a procurement transaction. Conversely, money provided through government donations to support a private organization, corporation, or agency without the provision of goods or services in return is considered differently under FOIA. Noncompetitive grants are more akin to appropriations or an exercise of governmental largesse which may be considered public funds for FOIA purposes. The FOIA Council is not a fact-finding body or trier of fact.