VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-04-26

May 5, 2026

Mr. Jason J. Ham
Litten & Sipe, LLP
Harrisonburg, 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 May 22, 2025.

Dear Mr. Ham:

You have asked for the opinion of this office regarding two questions:

(1) Does a political subdivision (specifically, Warren County) qualify as a "citizen of the Commonwealth" entitled to access public records under subsection A of § 2.2-3704 of the Code of Virginia?

(2) Should a request signed by the County Administrator be treated as a request by the County Administrator in his individual capacity?

As background, you stated that you serve as legal counsel for Warren County (the "County"). The County made several requests for information to Samuels Library, Inc. (the "Library") under the Virginia Freedom of Information Act ("FOIA"). The requests were pursuant to a motion during a meeting where the Board of Supervisors directed the County Administrator by motion as follows:

I move that the Board of Supervisors direct the County Administrator to make the FOIA requests on behalf of the Board of Supervisors, authorize the County Administrator to pay all fees regarding such requests from County funds, and, upon consultation with the Chairman, to take all actions incidental to the making of such requests, including specifying search terms, narrowing requests as necessary, and negotiating with respect to the timing of responses to such requests.

As directed by the Board of Supervisors, the County Administrator subsequently made the requests and signed them, followed by his name and title: "County of Warren, Ed Daley, Administrator." In response, the Library cited § 2.2-3704 of the Code of Virginia and stated that "Warren County is a political subdivision of the Commonwealth of Virginia and, thus, a component part of the sovereign. It is not, therefore, a citizen of the Commonwealth to which a response is required under VFOIA." Attached with this description was your assertion that the County should be considered a citizen of the Commonwealth as contemplated by subsection A of § 2.2-3704 of the Code of Virginia. Subsection A of § 2.2-3704 of the Code of Virginia states, in relevant part:

Except as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth during the regular office hours of the custodian of such records.

In your letter you went on to state that current provisions within the Code of Virginia apparently lead to an absurd result where, under subsection B of § 2.2-3713 of the Code of Virginia, a Corporate Petitioner [emphasis in original] may have rights under FOIA but a county does not. You summarized your argument by asserting that:

Given the lack of a definition of "citizens of the Commonwealth" in FOIA, the fact that Warren County is a Virginia County and political subdivision of the Commonwealth, that § 2.2-3713 (B) assumes that a corporation may be a petitioner with rights under FOIA, and given the rule of liberal construction of FOIA in Code § 2.2-3700, combined with the illogical result that a Virginia corporation has FOIA rights but a Virginia County does not, it seems that a County is a citizen of the Commonwealth for purposes of Code of Virginia § 2.2-3704 (A).

We disagree. As will be examined below, it appears that a county is not a citizen for purposes of FOIA.

A. Short Answer to Your Questions

For reasons elucidated below, Warren County, as a political subdivision and arm of the Commonwealth, is not a "citizen of the Commonwealth" or media representative for purposes of subsection A of § 2.2-3704 of the Code of Virginia. A county is part of the sovereign structure, not a citizen external to it. As it appears that Warren County uses the county board form of government, pursuant to subsection A of § 15.2-402 of the Code of Virginia, "[t]he powers and duties of the county as a body politic and corporate shall be vested in a board of county supervisors ('the board')." This would lend credence to the supposition that Warren County is a corporation and therefore should have the same rights as any other corporate requester. However, note the definition of "corporation" used in § 12.1-1, which is informative in the distinction it draws between corporations in the general sense and governmental entities such as municipal corporations and political subdivisions:

"As used in this title, the term "corporation" or "company" shall mean all corporations created by acts of the General Assembly of Virginia, or under the general incorporation laws of this Commonwealth, or doing business therein, and shall exclude all municipal corporations, other political subdivisions, and public institutions owned or controlled by the Commonwealth; and the term "the Commission" shall mean the State Corporation Commission."

Extending "citizenship" to counties would depart from established meaning, conflict with longstanding legal characterizations of counties as arms of the state, and create a structurally anomalous result: a government invoking a citizen-access statute against itself. Therefore, the better reading is that counties and other political subdivisions do not possess rights as requesters under FOIA in their own capacity as counties.

First, let us examine FOIA's text, particularly the General Assembly's choice to use "citizens" in subsection A of § 2.2-3704 of the Code of Virginia while using "any person" in § 2.2-3713 of the Code of Virginia, and how that textual choice bears on whether a county may invoke the access provision.

Second, we will consider the nature of a county under Virginia law. Counties are political subdivisions created and imbued with powers only by the General Assembly. That status, together with the practical and doctrinal problems that flow from treating a county as a "citizen," supports the conclusion that a county is not a "citizen of the Commonwealth" for purposes of FOIA.

B. Legislative History and Intent

This section examines the legislative context for FOIA's use of the term "citizens of the Commonwealth" in subsection A of § 2.2-3704 of the Code of Virginia. In doing so, it also addresses the tension you identified between FOIA's access provision, limited to "citizens" and certain remedial and enforcement provisions in § 2.2-3713 of the Code of Virginia that employ broader language such as "any person."

I. The 2005 repeal of the Title 1 definition of "citizen"

In 2005, the General Assembly repealed the Code of Virginia's former Title 1 definition of "citizen." The materials accompanying that change characterize the pre-2005 definition, found in former § 1-18 of the Code of Virginia, as outdated and rooted in historical concepts that no longer reflect how modern law understands citizenship.¹ At the time, § 1-18 of the Code of Virginia stated, in material part:

All persons born in this Commonwealth; all persons born in any other state of this Union, who may be or become residents of this Commonwealth; all aliens naturalized under the laws of the United States, who may be or become residents of this Commonwealth; all persons who have obtained a right to citizenship under former laws; and all children, wherever born, whose father, or, if he be dead, whose mother, shall be a citizen of this Commonwealth at the time of the birth of such children, shall be deemed citizens of this Commonwealth.

The definitional repeal and the reasoning behind it are instructive for two reasons. First, by removing a general statutory definition that might otherwise have supplied a default meaning whenever the Code of Virginia utilized the word "citizen," the repeal left the term without a cross-code reference. After 2005, "citizen" continued to be used in numerous provisions throughout the Code of Virginia, but no general definition remained to give the term uniform meaning.

Second, the 2005 Code Commission report highlights that the Code of Virginia's definition of "person" is intended to be expansive, describing the change as adopting "the broadest possible definition," drawn from the Uniform Commercial Code's (UCC) entity categories.² The practical significance of this distinction is straightforward. When the General Assembly wishes to capture a wide range of legal actors, including all manner of legal entities, it knows how to do so, and it does so by employing the term "person" under § 1-230 of the Code of Virginia.

The same report explained that modern citizenship questions are largely resolved by the Fourteenth Amendment, and that "rights and privileges bestowed upon citizens of the Commonwealth" are generally expressed in terms of residency or domicile that in turn influence related concepts such as voting privileges, tax treatment, or in-state tuition.³ Residency and domicile are, at their core, concepts that do not lend themselves to treating a governmental unit as a "citizen" who holds FOIA access rights.⁴

To be clear, the 2005 repeal does not by itself establish the meaning of "citizen" in FOIA. It is, however, consistent with the view that when FOIA grants a right to "citizens," it speaks in ordinary terms about members of the Commonwealth's political community, not about governmental subcomponents or political subdivisions of the Commonwealth itself.

II. The FOIA Council's 2006 Annual Report

Just one year after the statutory repeal, the FOIA Advisory Council's 2006 Annual Report documented that staff and Council members were already confronting the "citizen" question. The report described a staff briefing to the Council on then-recent federal litigation concerning Delaware's FOIA citizenship limitation under the Privileges and Immunities Clause. It noted that while the decision was influential, it was not binding in Virginia, and that Virginia courts had not yet addressed the issue.⁵ More importantly for present purposes, the report also noted that Virginia's "citizenship" provisions had been repealed in 2005 without replacement, and that staff had already received inquiries about whether corporations and other entities qualify as "citizens" under Virginia's FOIA.⁶ Multiple Council members, including some who were legislative members, expressed interest in further study, but the issue remained unresolved.⁷ The significance of the 2006 report lies in what it reveals: the General Assembly had notice of the exact ambiguity now presented and chose not to act.

III. Legislative silence after notice: relevance and limits

Virginia does not generate extensive formal legislative history the way Congress does. Nonetheless, the timeline included below supplies helpful context for the preceding argument.

• A general "citizen" definition was removed in 2005.
• The FOIA Advisory Council flagged the resulting FOIA ambiguity in 2006, including the specific question of whether "corporations and other entities" are "citizens."
• The General Assembly has not amended subsection A of § 2.2-3704 of the Code of Virginia to replace "citizen" with "person."

Legislative inaction does not resolve your primary question; as always, a court remains the final arbiter of statutory meaning.⁸ But when faced with a close interpretive dispute, legislative silence after explicit notice can carry probative weight. Here, silence is consistent with the view that the General Assembly continues to treat FOIA access as a right reserved to citizens.

IV. Relevant Case Law

Viewing FOIA as a statute focused primarily on citizen access aligns with how the United States Supreme Court described FOIA in the seminal McBurney v. Young. That case concerned the interplay between FOIA and the Privileges and Immunities Clause. Two out-of-state requesters argued that Virginia's FOIA abridged their rights under the Fourteenth Amendment of the United States Constitution. Specifically, the plaintiffs alleged that FOIA transgressed their "fundamental" privileges protected under that constitutional amendment.⁹ The Court considered the plaintiffs' allegations and concluded that Virginia's FOIA did not trammel their rights in the manner alleged.¹⁰ In its analysis, the Court explained that state FOIA laws operate as a mechanism by which members of the political community "[w]ho ultimately hold sovereign power" obtain an accounting from public officials, to whom they delegate the "[e]xercise of that [sovereign] power."¹¹ The Court further recognized the Commonwealth's interest in limiting FOIA rights to those citizens who bear the costs of documentary recordkeeping through their tax payments.¹² The court's analysis marks an important point of distinction. Unlike citizens, localities are not taxpayers. While localities may impose and collect taxes, they do not pay taxes.¹³

The pronouncement in McBurney also bears on your assertion that the Library's reading of FOIA leads to an absurd result where a Virginia corporation has rights under subsection B of § 2.2-3713 of the Code of Virginia but a county does not. The Privileges and Immunities Clause requires that nonresidents receive "reasonable and adequate" access to courts, not identical treatment.¹⁴ Virginia satisfies this standard by allowing nonresidents to obtain non-privileged documents for litigation purposes, and both residents and nonresidents enjoy equal access to judicial records and records pertaining directly to them. Indeed, McBurney himself successfully obtained much of the information he sought through Virginia's Government Data Collection and Dissemination Practices Act as a "data subject" as defined in that Act,¹⁵ demonstrating the availability of alternative statutory modes of access.

C. On the Nature of a County

FOIA in subsection A of § 2.2-3704 of the Code of Virginia extends the right of access, in its plain language, to "citizens of the Commonwealth" and certain media representatives. The threshold question you presented is therefore not whether a county may be treated as a "person" for some purposes, but whether a county qualifies as a "citizen" for purposes of that section. We conclude that Warren County, as a political subdivision of the Commonwealth, is neither a "citizen of the Commonwealth" nor a media representative within the meaning of subsection A of § 2.2-3704 of the Code of Virginia, because a county is a statutory instrumentality of the Commonwealth that possesses only those powers and attributes conferred by the General Assembly, not an independent private actor exercising the inherent rights associated with citizenship.¹⁶

I. Counties are political subdivisions created by statute

Virginia law has long recognized that a county is fundamentally different from a natural person or a private corporation.¹⁷ A county is a territorial and political division established for the purposes of government administration.¹⁸ In that sense, it is a "creature of statute," possessing only those powers that have been expressly granted and those necessarily implied to carry out its express powers.¹⁹ This distinction matters because "citizenship," in both common usage and legal context, generally refers to membership in a political community and the possession of rights that attach to that status.²⁰ A county, by contrast, is part of the sovereign structure itself.²¹ It is not a member of the political community like citizens or private entities.

II. Counties function as arms of the Commonwealth under longstanding Virginia authority

Virginia case law repeatedly characterizes counties as subordinate instrumentalities of the Commonwealth, created for local administration of state governance. Several decisions such as Town of White Stone v. Cty. of Lancaster; Camp v. Birchett, and Commonwealth v. Towles describe a county's legal status as that of a subordinate governmental arm. Under this line of authority, a county's legal identity is not that of an autonomous private entity asserting private rights against the government. That legal status is difficult to reconcile with treating the county as a "citizen" of the very sovereign of which it is a part. Accordingly, reading "citizen" in subsection A of § 2.2-3704 of the Code of Virginia to include a county would depart from the meaning of citizenship as already established by the Fourteenth Amendment and would, in practice, collapse the distinction between public bodies and the persons for whose benefit FOIA's access rights were principally designed.

III. Corporate personhood does not support treating counties as "citizens"

It may be argued that because certain non-natural entities can, in some contexts, exercise rights in court or be treated as "persons," a county should likewise be understood as capable of "citizenship" for FOIA access purposes. That argument is not sufficiently persuasive for two related reasons.

First, the legal concept of "personhood" is not the same as "citizenship." Even when the law recognizes that a corporation is a "person" for limited purposes, that recognition does not render it a "citizen" for all purposes.²² Secondary authority underscores this distinction by noting that a statute cannot make a corporation a "citizen" within the meaning of the federal Constitution and, more broadly, that citizenship and corporate personhood are analytically distinct concepts.²³ Second, although private corporations may be treated as "citizens" in certain limited contexts, a county is not a private entity external to the sovereign. It is a political subdivision embedded within the sovereign structure.

Counties, towns, and cities are all part of the sovereign structure, but all three share elements of a corporate existence.²⁴ However, when compared, a county stands in a materially different position from a corporation. Indeed, historical treatments in Virginia of counties as "quasi-corporations" emphasize that counties possess only a narrow, statutorily conferred corporate existence, created primarily to serve state policy in administration of justice and related governmental functions.²⁵ Even viewed along the continuum of corporate entities, counties "rank very low down in the grade of corporate existence," further undermining any inference that a county should be treated as a "citizen" merely because it sometimes possesses corporate-adjacent attributes.²⁶ Virginia case law supports this interpretation as well. For example, in Town of White Stone, the Circuit Court of Lancaster County concluded that the town of White Stone was not a citizen and had no standing to bring an action under Article I, Sections 1, 3, 6, 11 and 12 of the Virginia Constitution.²⁷ The Circuit Court relied on precedent from the Supreme Court of Virginia, which had held "a municipality, as a creation of the legislature subject to extinction by the legislature, is not a man within the contemplation of this section (Article 1, Section 1 Constitution of Virginia) and, therefore, has no standing to challenge a legislative act affecting rights under this Section."²⁸ This holding further supports the differences between citizens and municipal corporations.

IV. Practical and structural consequences confirm our statutory reading

Construing subsection A of § 2.2-3704 of the Code of Virginia, which permits a custodian to "require the requester to provide his name and legal address" to allow counties to invoke FOIA access rights would produce an anomalous result. Such an interpretation would require a public body to be treated like a "citizen" benefitting from a statute designed to secure the people's access to governmental information. That anomaly is not merely theoretical. FOIA's citizenship-verification practices, such as providing a name and legal address, are permissive rather than mandatory, but they presuppose the ordinary indicia of individual or private-entity status: residency documentation, identification, and the like. A county does not possess the markers typically used to establish citizenship or residency. The apparent mismatch between those mechanisms and the county-as-citizen theory is a practical indicator that the General Assembly did not intend political subdivisions to be treated as "citizens" for access purposes.

D. Responses to Potential Counterarguments

I. "Absurdity" arguments cannot justify expanding FOIA beyond its text

A further counterargument posits that it would be illogical or unfair if certain private entities can obtain FOIA relief while counties cannot. Even if that concern carries some intuitive appeal, it does not provide a basis for this office to expand FOIA beyond the statute's terms.²⁹ The role of this office is to apply the statute as written. Any perceived gap or policy choice concerning political subdivisions' access rights is a matter for the General Assembly to address and for courts to interpret as appropriate.

E. Individual Capacity

Having determined that a county, as a political subdivision, does not qualify as a "citizen" under subsection A of § 2.2-3704 of the Code of Virginia, the question remains whether the request in this instance must therefore be denied. As you stated, the request in question was signed by the County Administrator. The subsequent question, then, is whether a request signed by the County Administrator should be treated as a request made in the Administrator's individual capacity.

I. Making Requests in an Individual or Official Capacity as a Public Official

The FOIA Council has previously addressed whether a government official acts in their official or individual capacity when making a FOIA request. The opinions of this office have primarily dealt with situations where a member of a public body makes a FOIA request and was deemed to have been making the request in their individual capacity as a citizen. We acknowledge too, that there are situations where requesters are acting in their official capacity. For example, circumstances include schools and law enforcement officers sharing otherwise exempt information in their official capacity³⁰ or officials sharing confidential tax information "in the line of duty."³¹ Numerous other examples outside FOIA exist where officials might access information not disclosed to the general public. Therefore, best practice suggests that public bodies should ask the requester whether the request was intended in an official or individual capacity if the request itself is not clear.

Turning to requests made in an individual capacity as a citizen, in Advisory Opinion 07 (2015), this office examined a situation where a Town Council withheld records from one of its own Council members. After the initial withholding, the Council member requested the opinion of this office. In the ensuing opinion, this office wrote that "[w]hen a government official or employee makes a request pursuant to FOIA, he or she is acting in his or her capacity as a citizen of the Commonwealth."³² The opinion further clarifies that FOIA "does not address requests made in any other capacity."³³ Moreover, other related opinions expounded on the ideas expressed above, e.g., "FOIA grants all citizens of the Commonwealth and applicable media representatives the same rights of access to public records and meetings regardless of whether a person is a private citizen, a government employee, or an elected or appointed government official."³⁴

The interpretation of what constitutes a requester acting in their individual capacity aligns with the policy of liberal construction found in subsection B of § 2.2-3700 of the Code of Virginia, which favors "an increased awareness by all persons of governmental activities." A County Administrator is, indisputably, a natural person and likely a citizen of the Commonwealth. To avoid an absurd result where public records are withheld from a public administrator who is a citizen of the Commonwealth, Mr. Daley's request should be, in this instance, deemed a request by the Administrator in his individual capacity as a citizen. Moreover, it has long been recognized that a requester may distribute public records that were lawfully obtained however he or she so chooses.³⁵ Not only may the requester distribute such records, but ultimately, a requester's purpose in submitting a request is irrelevant, which marks a difference between FOIA and the federal statute.³⁶ Given the preceding information, it is acceptable for the County Administrator to make the underlying request, and then subsequently share the resulting records with the Board of Supervisors or others. Following established authority, it is within the bounds of FOIA for the County to reimburse the County Administrator for any FOIA charges. As such, the custodian should honor the request despite it ultimately serving the County's official business.

Sincerely,

Matteo Murrelle
Staff Attorney

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

¹Va. Code Comm'n, The Revision of Title 1 and Title 7.1 of the Code of Virginia. H.D. 10, 1st Sess., at 3 (2005).
²Id.
³Id.
⁴But note, for the purposes of civil procedure a corporation may have residency and domicile within the forum state, a long established juridical precedent. See also, in your letter you noted that § 8.01-328 defines person to include all manner of legal entities whether or not they are citizens of the Commonwealth. This definition of person only applies within Chapter 8.01 as stated in the first five words of the clause.
⁵See 2006 Annual Report, https://foiacouncil.dls.virginia.gov/2006ar.pdf (last accessed March 2nd, 2026).
⁶Id.
⁷Over time, several proposals to modify or remove the FOIA "citizenship" limitation have been referred to the FOIA Advisory Council for study (e.g., 2010, 2013). To date, no such proposal has been enacted. This history is not dispositive, but it is consistent with the General Assembly's continued choice to keep § 2.2-3704 (A) framed in terms of "citizens of the Commonwealth."
⁸See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
⁹McBurney v. Young, 569 U.S. 221 (2013).
¹⁰Id.
¹¹Id. at 228.
¹²Id.
¹³Va. Const. Art. X § 6.
¹⁴McBurney v. Young, 569 U.S. 221, 231 (2013).
¹⁵See Va. Code Ann. § 2.2-3801.
¹⁶See Va. Code Ann. § 15.2-1201; see also 5A M.J. COUNTIES § 3.
¹⁷See Town of White Stone v. Cty. of Lancaster, 97 Va. Cir. 309, 310 (Cir. Ct. 2002).
¹⁸See 5A M.J. Counties § 3 (2026).
¹⁹Id.
²⁰3B M.J. Citizens § 2 (2026); see also Citizen.Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/citizen. (Last Accessed 4 Mar. 2026).
²¹See 5A M.J. Counties § 3 (2026).
²²See Pollman, Elizabeth, "Reconceiving Corporate Personhood". All Faculty Scholarship. https://scholarship.law.upenn.edu/faculty_scholarship/2563 (2011); See also Ciara Torres-Spelliscy, Does "We the People" Include Corporations? Am. Bar Ass'n (2019). (https://www.americanbar.org/groups/crsj/resources/human_rights_magazine_home/we-the-people/we-the-people-corporations/).
²³See 3B M.J. Citizens § 2.
²⁴Va. Code Ann. § 1-224.
²⁵Camp v. Birchett, 143 Va. 686, 692 (1925).
²⁶21A M.J. Words and phrases County (2026) (quoting Bank v. Lewis Co., 28 W.Va. 273 (1886)).
²⁷Town of White Stone v. Cty. of Lancaster, 97 Va. Cir. 309, 310 (Cir. Ct. 2002).
²⁸Id.(citation omitted).
²⁹Va. Code Ann. § 30-179.
³⁰See Code of Virginia § 22.1-287 et seq.; See also § 16.1-301.
³¹See subdivision A 2 of § 58.1-3 of the Code of Virginia.
³²Freedom of Information Advisory Opinion 07 (2015); see also Freedom of Information 02 (2024), 02 (2014), and 15 (2003).
³³Id.
³⁴Freedom of Information Advisory Opinion 02 (2024) (quoting Freedom of Information Advisory Opinions 07 (2015) and 02 (2014)).
³⁵See, e.g.,Ostergren v. McDonnell, 643 F.Supp.2d 758, (E.D.Va. 2009)(quoting The Florida Star v. B.J.F., 491 U.S. 524 (U.S. 1989) at 534: "If (1) a newspaper (2) lawfully obtains truthful information (3) about a matter of public significance then state officials may not constitutionally punish publication of the information, (4) absent a need to further a state interest of the highest order.").
³⁶Associated Tax Serv., Inc. v. Fitzpatrick, 372 S.E.2d 625 (1988)

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