Between January and June of 2003, the FOI Advisory Council issued 14 written advisory opinions. Among them:
In AO-01-03, the council said that although the Allegheny Board of Supervisors could reach a tentative agreement about the purchase of land during a closed meeting, the actual purchase of the land was unauthorized because the board did not vote on the agreement in an open meeting. The council also stated that FOIA grants citizens the right to attend meetings, not necessarily the right to comment at them. Additionally, FOIA allows members of a public body to poll each other individually about matters discussed at both open and closed meetings, but the council again emphasized that no decisions would be effective until voted upon at an open meeting.
In AO-02-03, the council grappled with the interaction between § 2.2-3705(A)(8), which exempts records compiled for an active administrative investigation, and § 2.2-3705(A)(4), which generally exempts personnel records pertaining to an identifiable individual except from the person who is the subject of the record. The council found that Chesterfield County acted properly in withholding records used during an active administrative investigation; however, once those records had uncovered alleged misconduct that led to disciplinary action against a particular employee, that employee was entitled to access the portions of the records pertaining to him.
A public body may adopt certain rules governing the use and the placement of recording devices during its meetings, the council reaffirmed in AO-03-03. The council declined to devise a bright-line rule for recording, finding that they must be reviewed on a case-by-case basis. Alexandria’s proposed policy of capping microphones or placing them at least four feet from every member would be proper so long as implementation of the policy doesn’t effectively bar the public from recording the meeting. Where capping a particular microphone would prohibit recording the meeting, members who wish to engage in one-on-one “sidebar” conversations with each other or with staff must find alternative ways to do so.
The council considered the personnel records exemption provision of FOIA in AO-04-03, as applied to a “quality of work environment” survey conducted by Virginia Beach employees. The survey contained general work environment questions and an open-ended comment sections in which some respondents mentioned identifiable individuals. While the survey itself is not considered a personnel record, the council said, comments made about identifiable employees are considered personnel records because the comments relate to the job performance or scope of a particular individual’s employment. The survey could be redacted to protect the privacy of those employees but could not be withheld in its entirety.
In AO-05-03, the council declared that the rules of the Supreme Court of Virginia, and not FOIA, apply with respect to information requested under a subpoena. Here, where Richmond was served with a subpoena to supply information, the city must supply the records and cannot charge a fee under FOIA for the costs of producing such documents. If the public body feels the demand for documents is unreasonably burdensome, according to the rules of the Supreme Court of Virginia, it may file a written motion with the court which can quash or modify the subpoena.
In AO-06-03, the council declared that, despite the statutory silence concerning whether grievability hearings must occur in public, the intent of the General Assembly is to allow a grievance to be kept private and out of public scrutiny. Thus, the council found that school board deliberations to determine whether a matter is grievable may be kept private.
In AO-07-03, the council stated that the Virginia State Bar cannot withhold a list of names of those admitted to practice law in Virginia. The statutory provision directing the bar to provide records to certain not-for-profit organizations does not equate with allowing the records to be withheld in other circumstances, the council wrote.
The council found in AO-08-03 that a public body may not charge for compiling the requested record when that record had previously been assembled for anyone else. Any subsequent requester may only be charged “for copying the file, and perhaps the de minimis time it took the clerk or manager to retrieve the file.”
In AO-09-03, the council opined that the Appalachia Volunteer Fire Department is a public body subject to FOIA when it is “supported wholly or principally by public funds.” The council referred to a guideline announced in AO-36-01, that a public body under FOIA is one that receives at least two-thirds of its operating budget from government sources. Since the Appalachia Volunteer Fire Department receives nearly 90 percent of its funding from government sources, the council found it was a public body.
The council found in AO-10-03 that a suicide report is subject to FOIA as a noncriminal incident report, though any personal, medical, or financial information, such as the name of the person who committed suicide, may be redacted.
In AO-11-03, the council stated that FOIA requires that a requestor be provided with the salary information of county employees for distinct dates. Even though FOIA generally does not require a public body to create a record if none exists, an exception is for a request for salary information because FOIA affirmatively compels that salary information be accessible to the public. The public body does not, however, have to abstract or summarize information.