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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-08-26
June
29, 2026
Bradley
Parkzes
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 email of September 20, 2025, and
its attachment.
Dear
Mr. Parkzes:
You have asked several questions regarding a records
request you made under the Virginia Freedom of Information
Act (FOIA) to the Virginia Department of Transportation
(VDOT) and VDOT's response. As background, you shared
that you are a VDOT employee and that certain allegations
were made against you, that Ms. Leslie Martin interviewed
you concerning these allegations in June 2024, and
that you subsequently requested certain records from
VDOT. You summarized your request as asking for three
types of records:
1. The complete investigative report prepared by
Ms. Leslie Martin regarding a false sexual harassment
allegation raised against [you].
2. Any written statements provided by Lauren Mollerup,
Steve Shannon, Afsaneh Mirpour, and Todd Robson
during that investigation.
3. Any communications or report back and forth from
Ms. Martin to Central Office HR or Civil Rights
leadership regarding her findings.
You stated that VDOT's response to item 1 was to state
that there is no such investigative report, but VDOT
"produced a written summary authorized by Ms.
Leslie Martin titled 'Rumor regarding Mr. Parkzes
sexually harrasing [sic] another employee' in response
to Item #3." You indicated that this written
summary appears in substance to be an investigative
report, and therefore, you believe the response saying
no such report exists is inconsistent with the existence
of this summary. In response to item 2, you stated
VDOT withheld a written statement authored by Ms.
Mollerup pursuant to an exemption for certain records
concerning individual employment discrimination complaints
in subdivision 3 of § 2.2-3705.3 of the Code
of Virginia. You indicated that VDOT did not provide,
deny, or state whether there were any written statements
authored by the other three named individuals in item
2. You stated that the written summary by Ms. Martin
was produced in redacted form in response to item
3, again citing the exemption in subdivision 3 of
§ 2.2-3705.3 of the Code of Virginia. Additionally,
you stated that you "requested the nativa
electronic version (e.g., Word files) of
Ms. Martin's summary with metadata intact (creation
date, last modified, author)" [bold emphasis
in original] but in response "VDOT has not addressed
that request." You also provided an attachment
that included a series of emails between you and VDOT
showing your request, VDOT's response, and the various
communications that followed dating from August 22,
2025, through September 18, 2025. Additional background
facts will be set forth below as needed. Against this
background, you have asked for an advisory opinion
on four questions, each of which will be addressed
in turn below.
Question 1: Whether VDOT may properly treat
item 1 as a nonexistent record while producing a substantive
summary response to item 3?
As stated above, your first requested item was "[t]he
complete investigative report prepared by Ms. Leslie
Martin regarding a false sexual harassment allegation
raised against [you]." Your third requested item
was for "[a]ny communications or report back
and forth from Ms. Martin to Central Office HR or
Civil Rights leadership regarding her findings."
You stated that VDOT's response to the first requested
item said that there was no such completed investigative
report, but the response to the third requested item
was to provide a redacted version of a written summary
of the matter authored by Ms. Martin. You stated your
concern that these responses appear to be inconsistent
because the written summary appears in substance to
be a completed investigative report. The email from
VDOT dated September 18, 2025, states that "there
is no investigative report as specifically requested
in item #1" but that "VDOT did produce a
summary report which was responsive to item #3."
An earlier email from VDOT dated September 11, 2025,
states "that VDOT does not have any documents
responsive to item 1 because there is no investigation
report that was prepared and therefore, we do not
have any record to release." The same email also
states that "VDOT is providing records responsive
to item 3" and that those records were redacted
pursuant to the employment discrimination complaint
exemption in subdivision 3 of § 2.2-3705.3 of
the Code of Virginia. That exemption reads in full
as follows:
§ 2.2-3705.3. Exclusions to application of
chapter; records relating to administrative investigations.
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.
***
3. Investigator notes, and other correspondence
and information, furnished in confidence with respect
to an active investigation of individual employment
discrimination complaints made to the Department
of Human Resource Management, to such personnel
of any local public body, including local school
boards, as are responsible for conducting such investigations
in confidence, or to any public institution of higher
education. However, nothing in this subdivision
shall prevent the disclosure of information taken
from inactive reports in a form that does not reveal
the identity of charging parties, persons supplying
the information, or other individuals involved in
the investigation.
Reading
your request and VDOT's responses together, it appears
that VDOT draws a distinction between what constitutes
a "complete investigative report" and what
constitutes a "summary report." The language
used in the exemption itself refers instead to "inactive
reports," without defining the term. In the absence
of a statutory definition, the well-established rule
of statutory construction directs us to use the ordinary
meaning of a term in the context of the legislation.1
The Merriam-Webster online dictionary provides a relevant
definition for the term "report" as "a
usually detailed account or statement."2 Dictionary.com
provides 10 different definitions of "report,"
the first of which is "an account or statement
describing in detail an event, situation, or the like,
usually as the result of observation, inquiry, etc."3
The same sources define "summary" as "an
abstract, abridgment, or compendium especially of
a preceding discourse"4 and "a comprehensive
and usually brief abstract, recapitulation, or compendium
of previously stated facts or statements."5 Reading
these definitions together, it does appear that there
would be a difference between a "report"
and a "summary report" in that a "report"
would be more detailed than a "summary report."
Therefore, there appears to be some colorable basis
for VDOT's assertion that there is no "report"
in response to your first requested item, while at
the same time providing a "summary report"
in response to your third requested item. However,
in the context of your requests and VDOT's responses
viewed as a whole, it appears to be a moot issue because,
in the end, you were provided with a redacted version
of the summary report and VDOT stated that it was
the only record that existed in response to requested
items 1 and 3. Whether the summary report is responsive
solely to item 1, solely to item 3, or to both items,
does not change the outcome.
Question 2: Whether VDOT may withhold in full
written statements about the subject of an allegation,
or whether narrower redaction or segregation is required?
Generally, FOIA only allows public records to be withheld
in full if the entire record is exempt or prohibited
from release. This concept was codified in §
2.2-3704.01 of the Code of Virginia in 2016:
No provision of this chapter is intended, nor shall
it be construed or applied, to authorize a public
body to withhold a public record in its entirety
on the grounds that some portion of the public record
is excluded from disclosure by this chapter or by
any other provision of law. A public record may
be withheld from disclosure in its entirety only
to the extent that an exclusion from disclosure
under this chapter or other provision of law applies
to the entire content of the public record. Otherwise,
only those portions of the public record containing
information subject to an exclusion under this chapter
or other provision of law may be withheld, and all
portions of the public record that are not so excluded
shall be disclosed.6
In
the context of your request, it appears in your email
dated August 25, 2025, that you requested from VDOT
"[a]ny written statement(s) provided
by Lauren Mollerup as part of Leslie Martin's
investigation." [bold emphasis in original] In
its reply email dated September 11, 2025, VDOT responded
to this aspect of your request by stating that VDOT
was withholding one document in its entirety pursuant
to the employment discrimination exemption in subdivision
3 of § 2.2-3705.3 of the Code of Virginia. In
your reply email dated September 12, 2025, you wrote
as follows regarding this request and response: "It
is clear from the record that written statements were
provided by Ms. Lauren Mollerup, Mr. Steve Shannon,
Ms. Afsaneh Mirpour, and Mr. Todd Robson between June
6 and June 10, 2024. Withholding these statements
in full under [§] 2.2-3705.3 [subdivision] (3)
is inappropriate." The email reply from VDOT
dated September 18, 2025, stated in response that:
you asked VDOT to reconsider the exemption for records
responsive to item #2 of your request, which specified
written statements from Lauren Mollerup. As previously
advised, this document contains information relating
to investigator notes and other correspondence exempt
pursuant to section 2.2-3705.3 [subdivision] (3)
of the Code of Virginia. This document is not being
released.
In your email to this office, you expressed that VDOT
had withheld one document but VDOT had not confirmed
whether written statements from the other three individuals
exist or had been withheld. This exchange between
you and VDOT demonstrates the importance of clear
communications in making and responding to FOIA requests.
Your email dated August 25, 2025, requested any written
statement(s) from one named individual, but it did
not name the other three individuals you later identified
in your email dated September 12, 2025. In that email,
you stated that "access to these statements is
necessary to understand what was said about me in
a matter that directly impacted my reputation and
career." While you identified the importance
of those statements, and therefore implied that you
wanted copies of them, your email did not explicitly
request a copy of those statements. The subsequent
response from VDOT dated September 18, 2025, only
responded to the original request for any written
statement(s) from one named person. It did not address
any other written statements, presumably because VDOT
did not recognize your September 12, 2025, email as
a request for those statements. Among other things,
the policy of FOIA expressed in subsection B of §
2.2-3700 of the Code of Virginia provides that "[a]ll
public bodies and their officers and employees shall
make reasonable efforts to reach an agreement with
a requester concerning the production of the records
requested." Unfortunately, in this instance,
it appears that there was simply a misunderstanding
as to the scope of your request, despite the series
of communications between you and VDOT. For that reason,
we cannot say that VDOT is in violation of FOIA for
not providing records that you did not explicitly
request, although we would have hoped that further
communications would have clarified the scope of your
intended request.
Regarding
the record that was entirely withheld, unfortunately,
this office cannot offer any opinion on whether that
withholding was in compliance with FOIA and the terms
of the cited exemption since we cannot view the original
in unredacted form. Only a court would have the authority
to order VDOT to produce the original record for in
camera review in order to determine whether it was
entirely exempt and therefore properly withheld in
its entirety.
Question
3: Whether VDOT's redaction of item 3 complies with
FOIA's segregation and disclosure requirements?
You expressed your concerns that the redactions to
the written statement that VDOT provided were overly
broad in withholding "portions that appear to
identify who in Central Office was advised and what
was communicated." As stated above, FOIA does
require that records be redacted and only the exempt
portions be withheld unless the entire record is exempt
or prohibited from release. In your attachments, you
did provide the redacted record that VDOT provided
to you in response to your requested item 3. In context,
it appears that the redactions most likely consist
of names and, possibly, job titles, which appears
to comport with the last sentence of the cited exemption
in subdivision 3 of § 2.2-3705.3 of the Code
of Virginia: "However, nothing in this subdivision
shall prevent the disclosure of information taken
from inactive reports in a form that does not reveal
the identity of charging parties, persons supplying
the information, or other individuals involved in
the investigation." However, as also stated above,
because this office cannot see the original document
in unredacted form, we cannot state with certainty
whether the redactions comport with the terms of the
exemption or not.
As
an additional related matter, note that the policy
of FOIA expressed in subsection B of § 2.2-3700
of the Code of Virginia provides 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." In this instance, the exemption
in question, subdivision 3 of § 2.2-3705.3 of
the Code of Virginia, provides a discretionary exemption
for the following:
Investigator notes, and other correspondence and
information, furnished in confidence with respect
to an active investigation of individual employment
discrimination complaints made to the Department
of Human Resource Management, to such personnel
of any local public body, including local school
boards, as are responsible for conducting such investigations
in confidence, or to any public institution of higher
education.
When
an exemption is written with multiple elements as
this one is written, all of the necessary elements
must be met in order for the exemption to apply. For
example, in analyzing the use of this exemption, a
circuit court found that it did not apply when the
public body relying upon it failed to demonstrate
that the records withheld were "furnished in
confidence."7 While the facts provided are somewhat
incomplete by necessity due to the redactions involved,
it appears that you were looking for records communicated
with VDOT's Central Office and human resources staff.
What is not clear is whether there was ever an individual
employment discrimination complaint "made to
the Department of Human Resource Management"
as required by the exemption. Note that for local
public bodies and school boards, the exemption accounts
for employment discrimination complaints made to persons
who "are responsible for conducting such investigations
in confidence," but there is no such equivalent
for state public bodies such as VDOT. At the state
level, this exemption only applies to certain records
of "an active investigation of individual employment
discrimination complaints made to the Department of
Human Resource Management ... or to any public institution
of higher education." Because of the narrow construction
rule, this exemption cannot be used by other state
agencies unless an appropriate complaint has been
made to the Department of Human Resource Management.
It is unclear whether that was the case in this instance,
so it is unclear whether this exemption would apply.
Furthermore,
research did not reveal any controlling precedent
on this exemption from the Supreme Court of Virginia
or the Court of Appeals of Virginia. As previously
stated, the one circuit court case directly on point
held that the exemption did not apply because not
all of the required elements were met. After considering
that the personnel information exemption in subdivision
1 of § 2.2-3705.1 of the Code of Virginia provides
that access to personnel information "shall not
be denied to the person who is the subject thereof,"
the circuit court also concluded in dicta
that "[e]ven had such an element been proven,
however
... [the petitioner who was the subject of the employment
discrimination allegation] would be entitled to all
information in the final ... report but not the investigatory
materials giving rise to it."8 While this may
be persuasive rather than controlling precedent, we
cannot ignore that it would support an argument that,
as the subject, you might be entitled to an unredacted
copy of the written summary if that written summary
is also considered "personnel information."
However,
two points counteract this argument: (i) VDOT explicitly
stated in its communications that it was not relying
on the personnel information exemption, implying that
VDOT does not consider the records in question personnel
records, and (ii) subsequent statutory changes as
interpreted by the Supreme Court of Virginia regarding
what constitutes "personnel information"
and whether it should be private. In its 2005 decision,
the circuit court in question determined that "all
information gathered about an employee's employment
in a permanent form constitutes a personnel record"
and applied that definition to conclude that a report
regarding employment discrimination should be provided
to the subject thereof as a personnel record. However,
in comprehensive legislation amending FOIA in 2016,
the exemption was recodified as the "personnel
information" exemption.9 In the case Hawkins
v. Town of South Hill (2022), the Supreme Court
of Virginia weighed in to establish a definition and
privacy test for what constitutes "personnel
information."10 The Supreme Court defined "personnel
information" to mean "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."11 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."12 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."13 Following this holding, whether
any particular record contains exempt personnel information
must be determined on a case-by-case basis by applying
the definition and test set out in Hawkins.
As this is controlling precedent under current law,
it would argue against the 2005 circuit court precedent
that used a different definition under prior law.
Ultimately, only a court could render a binding decision
on whether the summary report at issue was properly
redacted pursuant to the employment discrimination
complaint exemption or should have been provided in
unredacted form on the basis that the redactions constituted
"personnel information" to which you are
entitled as the subject.
Question 4: Whether VDOT must produce electronic
records in their native format with metadata intact
if that is the format in which records are maintained?
Presuming the records were in electronic form, subsection
G of § 2.2-3704 of the Code of Virginia provides
in relevant part as follows:
Public
bodies shall produce nonexempt records maintained
in an electronic database in any tangible medium
identified by the requester, including, where the
public body has the capability, the option of posting
the records on a website or delivering the records
through an electronic mail address provided by the
requester, if that medium is used by the public
body in the regular course of business. No public
body shall be required to produce records from an
electronic database in a format not regularly used
by the public body. However, the public body shall
make reasonable efforts to provide records in any
format under such terms and conditions as agreed
between the requester and public body, including
the payment of reasonable costs. The excision of
exempt fields of information from a database or
the conversion of data from one available format
to another shall not be deemed the creation, preparation,
or compilation of a new public record.
Therefore,
yes, you would be entitled to any public records that
are not exempt or prohibited from disclosure in their
native format or in any other format regularly used
by the public body. If that format includes metadata,
then presumably it would be included as well, unless
for some reason it was exempt.
Other Issues
You also requested that this office advise VDOT to
provide a Vaughn-style index (or equivalent) that
identifies each withheld or redacted document, the
specific statutory basis for each withholding, and
whether any non-exempt material can be reasonably
segregated and disclosed. While a public body may
at times be well-served by producing a Vaughn-style
index, and a court may order a public body to produce
such an index in litigation,14 it is not a required
element when withholding records under FOIA. When
withholding records in whole or in part, subdivisions
B 1 and 2 of § 2.2-3704 of the Code of Virginia
require the public body to respond in writing as follows:
1. The requested records are being entirely withheld.
Such response shall identify with reasonable particularity
the volume and subject matter of withheld records,
and cite, as to each category of withheld records,
the specific Code section that authorizes the withholding
of the records.
2. The requested records are being provided in part
and are being withheld in part. Such response shall
identify with reasonable particularity the subject
matter of withheld portions, and cite, as to each
category of withheld records, the specific Code
section that authorizes the withholding of the records.
By
their own terms, these provisions do not require the
production of a Vaughn-style index. Note also that
both subdivisions require that the public body "cite,
as to each category of withheld records, the specific
Code section that authorizes the withholding of the
records." Following that language, a public body
may cite exemptions categorically rather than identify
a specific exemption for every individual withholding
or redaction. While identification of specific exemptions
corresponding to specific redactions may be helpful
and a public body may choose voluntarily to make such
identification, it is not required by statute. On
your third point, as stated previously, § 2.2-3704.01
of the Code of Virginia imposes a duty to redact,
and so you are correct that VDOT must produce non-exempt
records or portions thereof and may only withhold
records or portions thereof when they are exempt or
prohibited from release.
Thank you for contacting this office. I hope I have
been of assistance.
Sincerely,
Alan
Gernhardt, Esq.
Executive Director
1See,
e.g., Freedom of Information Advisory Opinions 07
(2024), 09 (2019), 04 (2014), 12 (2004) (all citing
various cases from the Supreme Court of Virginia).
2https://www.merriam-webster.com/dictionary/report
3https://www.dictionary.com/browse/report
4https://www.merriam-webster.com/dictionary/summary
5https://www.dictionary.com/browse/summary
62016 Acts of Assembly, cc. 620 and 716.
7See McChrystal v. Fairfax Co. Bd.
of Supervisors, 67 Va. Cir. 171 (Circuit Court
of Fairfax County, 2005).
8Id., 67 Va. Cir. at 183.
92016 Acts of Assembly, cc. 620 and 716.
10301 Va. 416, 878 S.E.2d 408.
11Id., 301 Va. at 432, 878 S.E.2d
at 416.
12Id. (internal quotations and
citations omitted)
13Id.
14See Citizens for Fauquier County
v. Town of Warrenton, 81 Va. App. 363, 904 S.E.2d
213 (Va. Ct. App. 2024).
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