Advisory Council

The Office of Executive Secretary by statute operates and maintains a case management system, the operation and maintenance of the system is the transaction of OES' public business, and therefore OES' case management records are public records subject to FOIA. By operation of law, the respective clerks also remain custodians of those records, and they bear responsibility for maintaining the integrity of those records.  To the extent that OES owns or possesses such data, it is also a custodian of such records and likewise responsible to respond to a request for it under FOIA.

Whether a record is exempt as a "working paper" depends on the purpose for which it was created, the person for whom it was created, and whether it has been disseminated beyond the personal or deliberative use of the official who holds the exemption.

A private entity that exercises no governmental authority and is not wholly or principally supported by government funds is not a public body subject to FOIA's records and meeting requirements. Money received by a private entity from government sources under a procurement contract should not be used to determine whether an entity is wholly or principally supported by public funds.

Public bodies have five working days to respond to a request for public records, and may invoke an additional seven working days to respond. The statutory remedy for a FOIA violation is to file a petition for mandamus or injunction supported by an affidavit showing good cause. Only a court may decide upon the appropriate remedy in each case.

Requesters and public bodies may reach their own agreements on the terms of production of public records. Such agreements should address any variations in response timing and charges to which the parties agree.

Suicide reports and related records may be withheld as criminal investigative files because suicide remains a crime in Virginia. To the extent it conflicts with this opinion, AO-10-03 is hereby rescinded.

FOIA does not define the term "custodian," but for FOIA purposes, generally the custodian is the person in charge of public records. Each public body may designate who is to act as custodian of its public records. FOIA does not apply to records that are not public records in the transaction of public business.

This opinion discusses the use of the contract negotiations and economic development records exemptions. FOIA allows a records custodian to disclose exempt records in his discretion. FOIA does not require a custodian to engage in a balancing test in exercising that discretion, or to justify or explain a decision not to disclose exempt records.

FOIA Council weighs in on availability of date of birth information held by law enforcement agencies.

A committee or advisory group of a public body that performs a delegated function or advises the public body is itself a public body. A committee or advisory group created by an individual to advise that individual is not a public body. In either case, however, records prepared, owned, or possessed by the committee or advisory group in the transaction of public business are public records subject to FOIA.