FOI Advisory Council Opinion AO-01-21
AO-01-21
January 21, 2021
Jon Munch
Delaplane, Virginia
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 electronic mail message and attachments from November 2020.
Dear Mr. Munch:
You have asked the following two questions about a public records request you made to Fauquier County under the Virginia Freedom of Information Act (FOIA) and the County's response:
(1) whether records showing the payments made by Fauquier County to the former Deputy County Administrator pursuant to a settlement agreement are accounting records subject to the mandatory disclosure provisions of the Virginia Freedom of Information Act, and therefore whether the County is required to provide the records responsive to my August 1, 2020 FOIA request; and
(2) whether Fauquier County is required under the Virginia Freedom of Information Act to provide salary and rate of pay information of individual specified employees (and former employees) for specific date(s) and ranges of dates, and therefore, whether the County is required to provide the records responsive to my October 26, 2020 FOIA request.
As background, you stated that the County issued a press release on March 5, 2020, announcing the resignation of the former Deputy County Administrator and another press release in June 2020 announcing the appointment of a new Deputy County Administrator. You wrote that you made numerous requests for information related to payments that the County has made pursuant to a settlement agreement between the County and the former Deputy County Administrator, beginning with a request on June 25, 2020, that asked for "a query from the County's payroll system that would have provided the gross amount of each pay, the aggregated total of all payroll deductions for that pay, and the net pay to the former Deputy County Administrator." You were given some records in response but told that your request would be better directed to the Payroll Division of the Fauquier County Department of Human Resources. After some discussion with the Director of Human Resources, you stated you made another request on August 1, 2020, for "accounting records showing all payments made to [the] former Deputy County Administrator, between March 5, 2020 and July 31, 2020" and "the date of each payment and the amount of each payment." You stated that the reply provided the annual salary amount of the former Deputy County Administrator as of the time of separation, but no information as to the amount(s) of payments made pursuant to the settlement agreement. In denying the rest of your request, the reply cited the personnel exemption, subdivision 1 of § 2.2-3705.1 of the Code of Virginia, and said that your request
seeks private information related to the payroll records of a specific identified employee. These are private records comprising information from within a confidential personnel file that are exempt from disclosure pursuant to Code of Virginia Section 2.2-3705.1(1). The only information that the Virginia General Assembly has removed the employee's right to privacy is: '… records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body.'
You wrote that you repeated your request for the dates and amounts of each payment, asserting that the payments were not payroll records, but rather accounting records showing disbursements made for the purpose of executing the terms of a settlement agreement, and that you cited the Supreme Court of Virginia's case LeMond v. McElroy1 and Freedom of Information Advisory Opinion 06 (2013). You wrote that your request was again denied, and the reply from the County stated that your request
made in the form of a database query would effectively produce a weekly payroll check stub for a specific identified individual. This detail would include benefit information, which is confidential and exempt pursuant to Section 2.2-3705(A)(4) (see Virginia FOIA Advisory Opinion AO-04-04) and federal and/or state tax withholding that is confidential pursuant to state and federal law, therefore, not subject to FOIA pursuant to Section 2.2-3704(A).
You stated that you responded multiple times that you did not seek a database query, only accounting records, but were again denied, this time in a letter dated September 9, 2020, that stated that "You are not entitled to copies of, or information contained within, each biweekly paycheck for an individual identified employee pursuant to Code of Virginia § 2.2-3705.1(1)." You made a new request on October 26, 2020, asking for the former Deputy County Administrator's salary and rate of pay during a certain date range, to which the County "responded with a copy of the previously provided letter and a report from the financial system aggregating the total of all salaries and benefits paid for the entire Department of County Administration, but no records pertinent to my request for the salary and rate of pay of the former Deputy County Administrator on the dates specified in the request." You indicated that you disputed this reply as nonresponsive to your request but have not had further communication with the County.
The policy of FOIA expressed in subsection B of § 2.2-3700 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." In interpreting FOIA's provisions, the same subsection directs 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. Any 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.
The term "public record" is defined in § 2.2-3701 to include 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." FOIA requires that a public body respond within five working days of receiving a request with one of the five responses allowed pursuant to subsection B of § 2.2-3704.2 However, subsection D of § 2.2-3704 provides that "no public body shall be required to create a new record if the record does not already exist." FOIA further requires in § 2.2-3704.01 that, if records are withheld, "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."
Regarding personnel and payroll records, the personnel information exemption found in subdivision 1 of § 2.2-3705.1 generally excepts from mandatory disclosure "[p]ersonnel information concerning identifiable individuals" but requires that some such information must be disclosed, including "records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body."3 Prior opinions from this office and the Attorney General of Virginia have opined that this exemption applies to those records maintained by a public agency that identify an employee, his rank or classification, rate of pay, performance, job history, employee evaluations, specifics as to the nature of employment, professional qualifications, and employment applications. Because of the nature of certain information contained within a personnel file, the personnel record exemption is a privacy-based exemption, designed to protect the subjects of the records from the dissemination of personal information while still showing the public how its tax dollars are spent.4 In looking at whether individual employees' timesheets would be exempt as personnel records, we opined that "timesheets include more information than just job classification and rate of pay. They include more personal information, such as whether an employee has been out of the office frequently due to illness or has taken vacation."5 In considering a situation where a public body created a spreadsheet showing salary and other personnel information, we opined that while there is an affirmative disclosure requirement for certain information including salary or rate of pay, there is no requirement to create a new record as a public body could redact existing payroll records to disclose the required information.6
Regarding accounting records, certain exemptions may allow specific types of financial data to be withheld under specific circumstances, and subdivision 13 of § 2.2-3705.1 exempts from mandatory disclosure "[a]ccount numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body," but otherwise there is no general exemption for accounting records. In LeMond, the Supreme Court of Virginia held that accounting records related to a settlement agreement must be disclosed, even if the settlement agreement itself was exempt from disclosure. The Supreme Court described the accounting records in that case as follows:
a payment request ... for the final settlement check to be drawn, showing the amount of the check and to whom the check is to be made payable, and, a computer sheet showing the amount paid as a result of the ... settlement. Assuming, without deciding, that the "settlement agreement" is exempt from disclosure under [a different exemption], we hold that these accounting records nevertheless must be produced for inspection and copying. ... These are documents generated in connection with the payment process, after the mutual agreement to settle. The request for the settlement check was prepared to execute the settlement agreement, and the computer sheet recorded the expenditure of public funds.7
This office has consistently followed the Supreme Court's holding in LeMond in prior advisory opinions.8 As previously opined by this office, the Supreme Court drew a clear distinction between the settlement agreement itself and accounting records reflecting payments made pursuant to that agreement and held that even if the settlement agreement was exempt, the accounting records were not.9 Additionally, we observed that the implied policy is clear: the public gets to see how its tax dollars are spent, even while personnel records, including settlement agreements, may be withheld from public disclosure.10
Turning to the questions and facts you presented, you first asked whether records showing the payments made by the County to the former Deputy County Administrator pursuant to a settlement agreement are accounting records subject to mandatory disclosure under FOIA that should have been provided in response to your August 1, 2020, request. The facts you presented indicated that your initial request in June 2020 asked for "a query from the County's payroll system," but that the August 1, 2020, request specifically asked for "accounting records showing all payments made to [the] former Deputy County Administrator" within a certain date range. It appears that the County provided a computer printout showing certain aggregate accounting records, noted the dates that biweekly payroll payments were made within that date range, and provided the official salary of the former Deputy County Administrator, but it denied your request for records about specific payments to the former Deputy County Administrator. The denial from the County dated September 4, 2020, included the statement that "[t]he limits of information available about an individual public employee's compensation cannot be overlooked by calling each biweekly paycheck an accounting record." Given this background, it appears that there may be a misunderstanding about your request or perhaps an unresolved factual question here, as it is not clear what records the County actually has regarding payments to the former Deputy County Administrator after she resigned. You asked for payments made after March 5, 2020, the date of the County press release announcing that the former Deputy County Administrator had resigned. You have asserted that these were payments made under a settlement agreement after the Deputy County Administrator left employment with the County and therefore, following the holding in LeMond, records showing those payments would have to be disclosed. However, it appears that the County characterizes these payments as payroll records that are exempt as personnel information, rather than as accounting records, despite the apparent fact that the former Deputy County Administrator's resignation had already been announced. Unfortunately, this appears to present a factual question regarding what records the County actually has and whether those records contain exempt personnel information. As this office is not a trier of fact, only a court has the authority to resolve such a question. However, note the language used by the Supreme Court in LeMond: "we hold that these accounting records nevertheless must be produced for inspection and copying....These are documents generated in connection with the payment process, after the mutual agreement to settle."11 Following this language, presuming you are correct about payments being made to the former Deputy County Administrator after her resignation, records of such payments would appear to be "documents generated in connection with the payment process, after the mutual agreement to settle," which the Supreme Court has indicated must be released. Whether such payments are processed as accounting records or through a payroll system would not appear to affect that result, as the essential nature of the records as showing payments to an individual would be the same. However, noting that the County indicated that the records include tax and benefits information that is exempt from disclosure, such records may be redacted pursuant to § 2.2-3704.01 so that the gross payment amount(s) would be disclosed as the Supreme Court has indicated but exempt tax and personnel information may be withheld.
Turning to your second question, you asked whether the County is required to provide salary and rate of pay information of individual employees (and former employees) for specific date(s) and ranges of dates and, therefore, whether the County is required to provide the records responsive to your October 26, 2020, FOIA request. You indicated that your October 26, 2020, request sought "disclosure of the former Deputy County Administrator's salary and rate of pay during a series of date ranges." Pursuant to the personnel exemption in subdivision 1 of § 2.2-3705.1, the salary or rate of pay of any officer, official, or employee of a public body must be disclosed if it exceeds $10,000 per year. If you wish to inquire what was a particular individual's salary or rate of pay on a particular date or a series of dates, that information would have to be disclosed. Note that in this instance it appears that the County did disclose the former Deputy County Administrator's salary; presuming there were no changes to that salary in the specified date range, that disclosure would be sufficient to satisfy this request.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
1. 239 Va. 515, 391 S.E.2d 309 (1990).
2. The five responses may be summarized as follows: 1) provide the records; 2) deny the request entirely pursuant to an appropriate exemption; 3) provide some of the records and deny the rest pursuant to an appropriate exemption; 4) state that the records cannot be found or do not exist; or 5) invoke an additional seven work days to respond.
3. Note that the exemption also provides that "records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less" need not be disclosed. My understanding is that such employees would be temporary or part-time employees only; that provision would not be applicable under the facts you have presented regarding the former Deputy County Administrator.
4. Freedom of Information Advisory Opinion 07 (2002) (internal quotations and footnotes omitted).
5. Id.
6. Freedom of Information Advisory Opinion 04 (2004).
7. LeMond, 239 Va. at 521, 391 S.E.2d at 312-313.
8. See Freedom of Information Advisory Opinions 06 (2013), 01 (2011), and 14 (2000).
9. Freedom of Information Advisory Opinion 06 (2013).
10. Id.
11. Supra, n.6.
