VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-06-26

May 4, 2026

The Honorable Albert C. Pollard, Jr.
Via Electronic Mail

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 emails of August 22, August 25, and September 5, 2025.

Dear Delegate Pollard:

You have asked about public access to portions of the Uniform Statewide Building Code (USBC)¹. Specifically, you asked whether the Virginia Administrative Code (VAC) may be "copyrighted so as to impede its circulation." As background, the International Code Council (ICC) is a private organization that writes and copyrights model codes, including language that is incorporated by reference into the USBC by the Virginia Department of Housing and Community Development (HCD) through the regulatory process. You included a link to HCD's website that describes the process as follows: "The Board of Housing and Community Development adopts and amends the USBC. The board bases the technical requirements of the USBC on nationally-accepted model codes and standards and makes as few amendments as possible."² You also included another link to the Virginia Regulatory Town Hall that demonstrates such incorporation of the ICC material into 13VAC5-63, summarized as follows:

This regulatory action is to update the USBC to incorporate by reference the newest available nationally recognized model building codes and standards produced by ICC. This action will consider amendments to the referenced codes and standards as well as amendments to the administrative and enforcement provisions of the USBC as determined necessary by the Board of Housing and Community Development.³

As further background, you stated that HCD directs one to the ICC website for copies of the USBC, but that the ICC website is difficult to navigate and "ICC claims their material is copyrighted but there is little or no information as to what part is Code, what part is proprietary information, and what part is public."⁴ You also referred to the ICC website page that contains the following statement about copyright and reproduction of ICC material:

Third parties who wish to reproduce Code Council materials must receive advance written permission from the Code Council for any incorporation of Code Council copyrighted material into external materials. Without such written permission, no Code Council materials may be reproduced, distributed, or transmitted in any form, or by any means, including, without limitation, electronic, optical or mechanical means (by way of example, and not limitation, photocopying or recording by or in an information storage retrieval system).⁵

Finally, you expressed your opinion that these provisions are in conflict with the policy of the Virginia Freedom of Information Act (FOIA) favoring open access to public records, as there appears to be no exemption in FOIA for such copyrighted materials and because the difficulty of accessing the USBC presents a hardship to builders.

FOIA's policy, expressed 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." The policy goes on to state that FOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government" and that any exemption from such access "shall be narrowly construed." In implementing this policy and setting out the procedures for access to public records, subsection A of § 2.2-3704 of the Code of Virginia states that "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth" and certain media representatives.

In a previous opinion, this office considered a records request that asked for various records concerning searches conducted by an airport authority, including any federal or Virginia statute or regulation authorizing such searches.⁶ As stated therein, the first step in considering any records request "is to determine whether the records sought are public records subject to FOIA."⁷ The term "public records" is defined in § 2.2-3701 of the Code of Virginia to mean all types of records "however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business." Considering the request only as it applied to statutes and regulations, we opined as follows:

[S]uch a request is not a request for "public records" as contemplated by FOIA. Statutes and regulations are publicly available through numerous other sources.⁸ In Virginia, all statutes and regulations are published and publicly available, pursuant to laws outside of FOIA, such as the Administrative Process Act, Ch. 40 of Title 2.2, and the enabling statute for the Virginia Code Commission, Ch. 15 of Title 30. The Virginia Code Commission has the specific statutory duty to publish the Code of Virginia, the Virginia Administrative Code, and the Register of Regulations.⁹ It is not the responsibility of other public bodies to provide copies of these statutes and regulations, although many choose to do so.¹⁰

In this instance, the same reasoning would apply in that the USBC, including the portions from ICC materials that are incorporated by reference, is part of the VAC and as such, it is part of the law itself, not records "in the transaction of public business." As such, FOIA would not apply to requests for copies of the USBC, just as it does not apply to requests for other statutes and regulations that are published under other laws.

Regarding such publication under other laws, § 36-104 of the Code of Virginia specifically addresses publication of the USBC:

The Department shall have printed from time to time and keep available in pamphlet form all Code provisions. Such pamphlets shall be furnished upon request to members of the public. A true copy of all such provisions adopted and in force shall be kept in the office of the Department, accessible to the public. The Department may charge a reasonable fee for distribution of the Building Code based on production and distribution costs.¹¹

There are also more general requirements for publication of regulations in the Virginia Register Act (§ 2.2-4100 et seq. of the Code of Virginia), including provisions addressing materials incorporated by reference. For example, § 2.2-4103 of the Code of Virginia requires "every agency to have on file with the Registrar [of Regulations] the full text of all of its currently operative regulations" along with certain other information, and provides as follows:

In addition, each agency shall itself (a) maintain a complete list of all of its currently operative regulations for public consultation, (b) make available to public inspection a complete file of the full texts of all such regulations, and (c) allow public copying thereof or make copies available either without charge, at cost, or on payment of a reasonable fee. Each agency shall also maintain as a public record a complete file of its regulations that have been superseded on and after June 1, 1975.

Where regulations adopt textual matter by reference to publications other than the Federal Register or Code of Federal Regulations, the agency shall (1) file with the Registrar copies of the referenced publications, (2) state on the face of or as notations to regulations making such adoptions by reference the places where copies of the referred publications may be procured, and (3) make copies of such referred publications available for public inspection and copying along with its other regulations.

As stated above, subsection A of § 2.2-3704 of the Code of Virginia provides that public records are open under FOIA "[e]xcept as otherwise specifically provided by law." Specifically, separate statutory publication requirements such as §§ 2.2-4103 and 36-104 of the Code of Virginia would apply in lieu of FOIA.

Also outside of FOIA, the Office of the Attorney General considered other issues that are informative regarding access to USBC. Specifically, the Attorney General opined on two issues:(1) "whether the enforcement of building regulations adopted by the Board of Housing and Community Development must await resolution of whether copyrighted material incorporated into the regulations by reference have lost their protection under federal copyright laws" and (2) whether such regulations "are unconstitutionally vague and thus violative of the due process provisions of the Constitution of the United States."¹² The Attorney General opined "that the enforceability of the USBC regulations does not depend on resolution of any uncertainty regarding copyright protection" after considering § 2.2-4103 of the Code of Virginia and concluding that it "not only imposes access and copying obligations on the Board, but also prescribes a remedy for noncompliance with these requirements."¹³ The opinion went on to observe that "every locality and building code official is provided a copy of the [USBC]" and that "there is no doubt that the USBC regulations and the model codes incorporated by reference are available for inspection. Given the availability of inspection locally of the model codes, any restriction on wholesale copying of the codes would not constitute a due process violation that would render the USBC regulations unenforceable."¹⁴ The opinion concluded "that the USBC regulations, which incorporate copyrighted model codes by reference, represent enforceable law" and "that the USBC regulations are not unconstitutionally vague."¹⁵

Conclusion

While we agree that ready access to the USBC and other relevant laws should be encouraged as it facilitates awareness of and compliance with the law, we cannot agree that the incorporation of copyrighted material into the USBC is contrary to FOIA. Our conclusion is supported by two reasons: (1) the ICC materials in question have been incorporated by reference into the VAC and are therefore part of the law itself rather than public records "in the transaction of public business," as defined in FOIA, and (2) FOIA provides access to public records "except as otherwise specified by law" and access to the VAC and USBC is addressed under other law.¹⁶

Sincerely,

Alan Gernhardt, Esq.
Executive Director

¹See Ch. 6 (§ 36-97 et seq.) of Title 36 of the Code of Virginia.
²https://www.dhcd.virginia.gov/virginia-uniform-statewide-building-code-usbc (last visited April 22, 2026).
³https://townhall.virginia.gov/L/ViewAction.cfm?actionid=6731 (last visited April 22, 2026).
⁴Serial commas added to quoted material for clarity.
⁵https://www.iccsafe.org/about/periodicals-and-newsroom/icc-logo-license/ (last visited April 22, 2026).
⁶See Freedom of Information Advisory Opinion 05 (2006).
⁷Id.
⁸For example, statutes are published in the Acts of Assembly, as well as in the Code of Virginia. Regulations are published in the Virginia Administrative Code. Printed versions of these resources are available at many libraries, including court libraries, law school libraries, and the Virginia Legislative Reference Center. Both the Code of Virginia and the Virginia Administrative Code are also available online through the Legislative Information System at http://leg1.state.va.us/lis.htm.
⁹See Code of Virginia § 30-146.
¹⁰Freedom of Information Advisory Opinion 05 (2006)(footnotes 8 and 9 above appeared in original).
¹¹Section 36-97 of the Code of Virginia defines "Board" to mean the Board of HCD, "the Department" to mean HCD, and "Code provisions" to mean " the provisions of the Uniform Statewide Building Code as adopted and promulgated by the Board and the amendments thereof as adopted and promulgated by the Board from time to time."
¹²2004 Op. Atty. Gen. Va. No. 03-125 (issued February 23, 2004).
¹³Id.
¹⁴Id.
¹⁵Id..
¹⁶Because we conclude that these materials are not subject to FOIA, the interaction of FOIA and copyright law is not dispositive of this opinion. However, for reference, please note that the interaction of FOIA and copyright law was addressed in detail in Freedom of Information Advisory Opinion 02 (2026).

© 2026 | FOIA COUNCIL HOME | DLS HOME | GENERAL ASSEMBLY HOME