FOI Advisory Council Opinion AO-02-21
AO-02-21
May 25, 2021
Robert Zullo
Editor
The Virginia Mercury
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 March 16, 2021.
Dear Mr. Zullo:
You have asked two questions regarding access to final reports of investigations into activities of the Virginia Parole Board (the Board) made by the Office of the State Inspector General (OSIG). Both questions and short answers to each are presented in the section below with a more detailed discussion and analysis afterward.
Questions Presented and Background
As background for your first question, you wrote that pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) you requested certain reports from OSIG concerning investigations OSIG made into activities of the Board, but OSIG refused to release them except in heavily redacted form. You provided three responses you received from OSIG, all of which appear to be almost entirely redacted, except for the header (addressed as letters to the Secretary of Public Safety and Homeland Security); opening statement that OSIG "conducted an administrative investigation based on multiple complaints made to the State Fraud, Waste and Abuse Hotline about the Virginia Parole Board (VPB)" with a case number; conclusions stating whether the allegations were substantiated or unsubstantiated; and a statement that OSIG will provide recommendations in a subsequent report. The sections of the reports detailing the allegations, background, and findings of fact were entirely redacted from all three reports that you included with your inquiry to this office. You stated that OSIG wrote as follows in denying your request:
Note that all Virginia Parole Board information provided to OSIG to conduct this administrative Fraud, Waste and Abuse Hotline investigation is exempt from FOIA under Code of Virginia §§ 2.2-3703(A)(1) and 2.2-3705.3(7). The Virginia Parole Board maintains its FOIA exclusions and has not waived its FOIA protections. The attached redacted documents pertaining to FOIA 2021-033 Virginia Parole Board Case Report #18467 are being supplied to you in compliance with Code of Virginia § 2.2-3704[B].
Your first question to this office, given this background, is whether OSIG is "correct in applying the Parole Board's FOIA exemption to finished reports that are in [OSIG's] possession." Examining this question solely from the perspective of FOIA, the short answer would be that no, OSIG would not be correct in applying subdivision A 1 of § 2.2-3703 (the provision that excepts the Board from FOIA) because that subdivision applies only to the Board, but OSIG may use the exemption in subdivision 7 of § 2.2-3705.3 to withhold those records to which it applies because that exemption specifically exempts from disclosure certain records "provided to or produced by or for" OSIG.
As background to your second question, you stated that an OSIG report regarding the Board was released in full to members of the General Assembly who subsequently made the full report public. You stated that both the Secretary of Public Safety and Homeland Security and the Governor's Chief of Staff made statements indicating that the public release of the report by members of the General Assembly was prohibited by law. You then asked the Office of the Governor "to provide the code sections that make it illegal for a member of the General Assembly to release a finished report of the Office of the State Inspector General." The response from the Office of the Governor said "please see the following code sections, per our counsel. I've pulled out some relevant parts, but not all" and then cited and quoted from the following Code provisions: subsection C of § 2.2-310, subsections B, E, and F of § 2.2-313, subdivision A 1 of § 2.2-3703, subdivision 7 of § 2.2-3705.3, and § 2.2-3714. Please note that while §§ 2.2-3703, 2.2-3705.3, and 2.2-3714 are sections within FOIA, §§ 2.2-310 and 2.2-313 are laws specific to OSIG outside of FOIA. You posed your second question to this office as follows: "Is there anything in the code to support the administration's claim that it was illegal for members of the General Assembly to release the report at issue?" Unfortunately, this office can only respond to this question in part, because our statutory authority is limited to FOIA matters. Pursuant to § 30-179, this office has the power and duty to "[f]urnish, upon request, advisory opinions or guidelines, and other appropriate information regarding the Freedom of Information Act (§ 2.2-3700 et seq.) to any person or public body, in an expeditious manner," but we do not have authority to opine independently on other parts of the Code. With that limitation in mind, the short answer is that nothing in FOIA itself would prohibit a member of the General Assembly from sharing a report obtained from OSIG, but this office cannot opine on whether other laws outside of FOIA may act to prohibit the release of such reports.
FOIA Policy and Statutory Rules of Construction
The purpose of FOIA as stated in subsection B of Code § 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, and free entry to meetings of public bodies wherein the business of the people is being conducted." That subsection continues with the statement of principle that "[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government." The General Assembly has also provided specific direction in how to interpret FOIA in the same subsection:
The provisions of this chapter 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.
As stated by the Supreme Court of Virginia in applying these rules, "[b]y its own terms, [FOIA] puts the interpretative thumb on the scale in favor of disclosure" and "[d]isclosure exemptions must be 'narrowly construed' in favor of disclosure."1 Therefore, if there is a choice between an interpretation of a FOIA provision that favors disclosure and one that favors secrecy, this office must choose the interpretation that favors disclosure. Otherwise, if there is no question of interpretation and the statutory language at issue is clear and unambiguous, we follow its plain meaning.2 Additionally, while FOIA generally requires allowing public access to public records and meetings, it does recognize other laws that prohibit or place limits on such access. Specifically, in the context of public records, subsection A of § 2.2-3704 directs that "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth" and certain media representatives.
Analysis of Your First Question Regarding OSIG's Use of Exemptions
Both OSIG and the Board are public bodies as defined in § 2.2-3701, which includes "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth," among other entities, and therefore, generally speaking, both are subject to FOIA. However, as cited by OSIG in its reply to you, the Board is largely excepted from the provisions of FOIA pursuant to subdivision A 1 of § 2.2-3703:
A. The provisions of this chapter shall not apply to:
1. The Virginia Parole Board, except that (i) information from the Virginia Parole Board providing the number of inmates considered by the Board for discretionary parole, the number of inmates granted or denied parole, and the number of parolees returned to the custody of the Department of Corrections solely as a result of a determination by the Board of a violation of parole shall be open to inspection and available for release, on a monthly basis, as provided by § 2.2-3704; (ii) all guidance documents, as defined in § 2.2-4101, shall be public records and subject to the provisions of this chapter; and (iii) all records concerning the finances of the Virginia Parole Board shall be public records and subject to the provisions of this chapter. The information required by clause (i) shall be furnished by offense, sex, race, age of the inmate, and the locality in which the conviction was obtained, upon the request of the party seeking the information. The information required by clause (ii) shall include all documents establishing the policy of the Board or any change in or clarification of such policy with respect to grant, denial, deferral, revocation, or supervision of parole or geriatric release or the process for consideration thereof, and shall be clearly and conspicuously posted on the Board's website. However, such information shall not include any portion of any document reflecting the application of any policy or policy change or clarification of such policy to an individual inmate;
Therefore, other than the information and records that are explicitly made subject to FOIA under this subdivision, the Board is entirely excepted from FOIA, not only for records purposes but also when considering other FOIA provisions regarding meetings, training requirements, posting statements of rights and responsibilities, etc. Note also that this exception is the only provision within FOIA that addresses the Board explicitly, presumably because there is no need to set out separate exemptions for other Board records or meetings when the Board is otherwise exempt from FOIA. However, note also that the plain meaning of this exception limits its application to the Board itself, as it does not mention any other public body. Additionally, given the General Assembly's direction that "[a]ny exemption from public access to records or meetings shall be narrowly construed," to read this exception as applying to any other public body would be to expand the scope of the exception in a way that favors withholding records and promoting the "atmosphere of secrecy" that FOIA seeks to avoid, contrary to the direction given by the General Assembly. Therefore, read on its own, subdivision A 1 of § 2.2-3703 would not exempt from disclosure under FOIA records held by OSIG or any public body other than the Board.
However, the other Code section that was cited in response to your first request, subdivision 7 of § 2.2-3705.3, provides a discretionary records exemption that reads in relevant part as follows:
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.
. . .
7. Investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by this chapter or any Virginia statute, provided to or produced by or for . . . (iv) the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline or an investigation initiated pursuant to Chapter 3.2 (§ 2.2-307 et seq.). . . . Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person.
The first line of this exemption includes "[i]nvestigative notes, correspondence and information furnished in confidence, and records otherwise exempted by this chapter or any Virginia statute." Within the context of your question, Board records that are not required to be released pursuant to subdivision A 1 of § 2.2-3703 are "otherwise exempted by this chapter" since the Board is otherwise exempt from FOIA. Clause (iv) of subdivision 7 of § 2.2-3705.3 specifically applies to certain records "provided to or produced by or for" OSIG and, given the prefatory language of the exemption, OSIG may use this exemption to withhold or disclose such records in its discretion. Therefore, such records "provided to or produced by or for" OSIG regarding an investigation of the Board would be exempt pursuant to this subdivision and may be withheld by OSIG in its discretion. However, the latter part of the exemption requires that any records of completed investigations are subject to disclosure in a redacted form:
Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person.
Reading this exemption in its entirely, "[i]nvestigative notes, correspondence and information furnished in confidence, and records otherwise exempted by this chapter or any Virginia statute, provided to or produced by or for" [OSIG] may continue to be withheld in the discretion of the custodian once an investigation is complete, but reports of completed investigations must be released in redacted form as described. Therefore, in response to your first inquiry, it appears that under FOIA, subdivision A 1 of § 2.2-3703 and subdivision 7 of § 2.2-3705.3, when read together, would exempt certain records that were provided to OSIG by the Board in the course of an investigation, as well as certain other "investigative notes, correspondence and information furnished in confidence," but would not exempt the final reports you requested from OSIG because those reports, as records of completed investigations, are required to be released in redacted form.
Analysis of Your Second Question Regarding Release of OSIG Reports by Members of the General Assembly
Turning to your second question about whether members of the General Assembly are prohibited from releasing OSIG reports: if we were to consider only the Board exception from FOIA and the OSIG records exemption discussed above when analyzing the issue, the answer would be "no."
First, considering subdivision A 1 of § 2.2-3703, given the narrow construction rule of FOIA as stated previously, one cannot read a FOIA exception that is specific to one entity as applying to a different entity because that would expand limitations on access contrary to the statutory policy of FOIA. Therefore, subdivision A 1 of § 2.2-3703, which states that FOIA shall not apply to the Board with certain exceptions, cannot be read as applying to members of the General Assembly or any other public body when such members and other public bodies are not mentioned. Second, the language of that exception (quoted previously) does not set out any prohibition on the release of Board records, it instead states that the Board is generally not subject to FOIA except for certain records and information specifically listed that are subject to disclosure under FOIA. The plain meaning of the provision is exactly that—the Board is generally not subject to FOIA except for those items listed. Note that not being subject to FOIA does not mean that the Board is prevented from releasing records under this provision, it simply means the Board is not subject to FOIA. Board records may still be subject to disclosure in other contexts, such as any voluntary disclosures it chooses to make, affirmative disclosures required under other laws,3 discovery in court proceedings,4 etc. In any case, the provision excepting the Board from FOIA says nothing about the release of an OSIG report by members of the General Assembly and cannot be read as a prohibition of the same.
Next, the records exemption in subdivision 7 of § 2.2-3705.3 allows certain entities, including OSIG, to withhold certain investigative records while requiring the release of records of completed investigations in redacted form, but it also does not mention members of the General Assembly and, therefore, cannot be read as applying to such members. Additionally, consider the prefatory language used for the vast majority of FOIA records exemptions, including § 2.2-3705.3:
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.
Because of this language, most FOIA exemptions—including the OSIG exemption at issue here—generally allow a custodian to withhold records in response to a FOIA request while at the same time also allowing the custodian to exercise that discretion to release records if he so chooses, unless release is prohibited by some other law. Applied in this instance, this means that the OSIG exemption allows OSIG to withhold certain investigative records while requiring the release of records of completed investigations in a redacted form, as described above, but OSIG could also choose to release the records that are exempt (investigative notes, etc.). The important concept to note here is that the exemption does not prevent or prohibit the release of exempt records, it actually allows for such release, unless that release is prohibited by other law. Therefore, this exemption cannot be read to prohibit members of the General Assembly from releasing OSIG reports, both because it does not apply to members of the General Assembly and because it allows the custodian of such exempt records to release them unless prohibited by other law.
However, this is not the end of the analysis because unlike the response to your first request, which only cited these two FOIA provisions discussed above, the response to your second inquiry also cited §§ 2.2-3714, 2.2-310, and 2.2-313. Additionally, note that the reply to your second inquiry stated that it "pulled out some relevant parts, but not all" of the relevant Code sections, which begs the question of whether there may be other Code provisions outside FOIA that may also affect access and dissemination of these reports.
Addressing the reference to § 2.2-3714, it is part of FOIA's remedies provisions that sets out additional civil penalties in varying amounts to be paid to the Literary Fund for certain violations of FOIA (knowing and willful violations, improper destruction or alteration of records with the intent to avoid FOIA, and the improper certification of closed meetings). None of these provisions of § 2.2-3714 says anything specific about members of the General Assembly or prohibits the release of records. Therefore, applying the plain meaning of these provisions and the narrow construction rules of FOIA, § 2.2-3714 does not prohibit the release of OSIG reports by members of the General Assembly.
Sections 2.2-310 and 2.2-313, also cited in the response you received from the Office of the Governor, are not part of FOIA but instead are part of the Code that is specific to OSIG. As quoted in the response to your inquiry, subsection C of § 2.2-310 provides that "[t]he State Inspector General shall preserve the confidentiality of any information obtained from a state agency during the course of an investigation in accordance with applicable state and federal law." The response also quoted from several subsections of § 2.2-313 as follows:
B. The State Inspector General shall notify the Governor's chief of staff, the Speaker, Majority Leader, and Minority Leader of the House of Delegates, and the President pro tempore, Majority Leader, and Minority Leader of the Senate of problems, abuses, or deficiencies relating to the management or operation of a state agency or nonstate agency ... E. Notwithstanding any other provision of law, the reports, information, or documents required by or under this section shall be transmitted directly to the Governor's chief of staff and the General Assembly by the State Inspector General. F. Records that are confidential under federal or state law shall be maintained as confidential by the State Inspector General and shall not be further disclosed, except as required by law.
Given the plain language of these provisions as quoted above from the response you received and without further interpretation, these provisions appear to direct the State Inspector General to "preserve the confidentiality" of certain information and state that certain records "shall be maintained as confidential by the State Inspector General and shall not be further disclosed, except as required by law." In the context of your inquiry, this language presents two further questions: what "confidentiality" applies to these records and whether the directives to the State Inspector General set out in §§ 2.2-310 and 2.2-313 also apply to members of the General Assembly who receive reports from OSIG.
Addressing the first question as it relates to FOIA, you requested certain investigative reports from OSIG and as stated above, under FOIA such reports of completed investigations must be released in redacted form pursuant to subdivision 7 of § 2.2-3705.3. Other investigative records may be withheld pursuant to the same exemption, but also may be released in the discretion of the custodian. As described previously, FOIA allows for the release of these records by granting the custodian discretion to release unless otherwise prohibited by law; FOIA does not act as such a prohibition or state that exempt records are confidential. Note that even where subdivision 7 of § 2.2-3705.3 refers to records "furnished in confidence," in the context of the exemption and the facts you presented, those would be records furnished to OSIG as part of an investigation, not the records of the completed investigation that were the subject of your request.
By contrast to FOIA's language allowing discretion to release, note that various other laws outside of FOIA do explicitly make records "confidential" and otherwise prohibit or limit their release. As a matter of statutory construction, the Supreme Court of Virginia has stated that
when interpreting and applying a statute, we assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words. Therefore, when the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.5
FOIA does not define the term "confidential." Section 2.2-307 sets out definitions for the enabling legislation specific to OSIG (including §§ 2.2-310 and 2.2-313), but it also lacks a definition of the term "confidential." Turning to the plain meaning in the absence of a statutory definition, one online definition of "confidential" is "meant to be kept secret and not told to or shared with other people." 6Another source defines "confidential" as "secret or private, often in a formal, business, or military situation." 7 The FOIA provisions at issue here do not require such secrecy by prohibiting the release of records, they merely allow the custodian to withhold certain records or release them in his discretion in response to a FOIA request, while requiring the disclosure of other records. Neither FOIA provision at issue here states that it makes records "confidential" or otherwise prohibits their disclosure.
As an example of such a law that explicitly makes records confidential, consider § 2.2-4119, part of the Virginia Administrative Dispute Resolution Act (§ 2.2-4115 et seq.). Subsection A of that section provides that "all dispute resolution proceedings conducted pursuant to this chapter are subject to [FOIA]" except for "the materials described in subsection B." Subsection B of that section lists certain materials, states that they "are confidential," and further states that "[c]onfidential materials and communications are not subject to disclosure or discovery in any judicial or administrative proceeding" with certain exceptions. As another example, consider the language used in subsection C of § 38.2-221.3:
All applications, documents, materials, or other information produced by, obtained by, or disclosed to the [State Corporation] Commission or any other person in the course of an investigation, or a review of an application, shall be given confidential treatment, is not subject to subpoena, and may not be made public by the Commission or any other person.
This provision plainly contemplates disclosures other than FOIA, especially as the Supreme Court of Virginia has previously held that the State Corporation Commission is not subject to FOIA.8 Another example would be § 19.2-299, concerning certain presentencing reports by probation officers. That section requires probation officers to prepare such reports in certain situations and provide them to certain recipients, then states that "[t]he report of the investigating officer shall at all times be kept confidential by each recipient, and shall be filed as a part of the record in the case. Any report so filed shall be made available only by court order and shall be sealed upon final order by the court" with certain exceptions. FOIA itself does have two prohibitions on the release of records, but both of those avoid the prefatory language that gives the custodian discretion to release and specifically state that certain records "shall not" be disclosed.9 Following the rules of statutory construction, and observing that the General Assembly clearly states in other laws when records are confidential and when they are prohibited from release, we cannot interpret the FOIA provisions that were cited as making confidential the OSIG reports that you requested. To the contrary, the relevant FOIA exemption, subdivision 7 of § 2.2-3705.3, requires the release of those reports in redacted form.
However, while FOIA does not make these records confidential, whether other laws outside of FOIA do so, and whether the directives to the State Inspector General set out in §§ 2.2-310 and 2.2-313 also apply to members of the General Assembly who receive reports from OSIG, are questions that fall beyond the statutory authority of this office as both would require interpretations of laws independent of FOIA. For those reasons, we can only answer your second inquiry in part by stating that while FOIA does not prohibit members of the General Assembly from releasing OSIG reports, we cannot opine on whether §§ 2.2-310 and 2.2-313 or some other law(s) may act as such a prohibition.
Summary
You first asked whether OSIG is "correct in applying the [Board's] FOIA exemption to finished reports that are in [OSIG's] possession." Considering the FOIA provisions cited and described above, subdivision A 1 of § 2.2-3703 largely excepts the Board from FOIA and subdivision 7 of § 2.2-3705.3 allows certain records to be withheld while at the same time requiring records of completed investigations to be released in redacted form, unless release is otherwise prohibited by law. Therefore, OSIG cannot rely on subdivision A 1 of § 2.2-3703 on its own as an exemption, because that provision is limited to the Board. However, that provision makes clear that Board records other than those that are specifically subject to FOIA are generally "otherwise exempted by this chapter or any Virginia statute." Therefore, subdivision A 1 of § 2.2-3703 may be read in conjunction with subdivision 7 of § 2.2-3705.3 to allow certain investigative records "provided to or produced by or for" OSIG to be withheld. However, final reports of OSIG investigations would have to be released in redacted form in accordance with the latter portion of subdivision 7 of § 2.2-3705.3.
Your second question asked whether there is "anything in the code to support the administration's claim that it was illegal for members of the General Assembly to release the report at issue." The FOIA provisions that were cited in response to your second inquiry—subdivision A 1 of § 2.2-3703, subdivision 7 of § 2.2-3705.3, and § 2.2-3714—do not set out prohibitions that would prevent members of the General Assembly from disclosing OSIG reports. However, it would be beyond the statutory authority of this office to opine whether the cited portions of §§ 2.2-310 and 2.2-313, or other such laws outside FOIA, prevent members of the General Assembly from releasing such reports.
Thank you for contacting this office. I hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
1. Virginia Dep't of Corrections v. Surovell, 290 Va. 255, 263, 776 S.E.2d 579, 583 (2015) (quoting Fitzgerald v. Loudoun County Sheriff's Office, 289 Va. 499, 505, 771 S.E.2d 858, 860-61 (2015)).
2. See, e.g., Cole v. Smyth County Bd. of Supervisors, 298 Va. 625, 636, 842 S.E.2d 389, 394 (2020) ("In construing statutory language, we are bound by the plain meaning of clear and unambiguous language." (quoting White Dog Publishing, Inc. v. Culpeper County Bd. of Supervisors, 272 Va. 377, 386, 634 S.E.2d 334 (2006))).
3. For example, subdivision 1 of § 53.1-136 provides that among its powers and duties the Board shall "[a]dopt, subject to approval by the Governor, general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review." This is an affirmative disclosure requirement completely separate from FOIA.
4. Note that § 2.2-3703.1 makes clear that FOIA's provisions have no bearing on disclosures made pursuant to court orders or subpoenas. As such, the provision excepting the Board from FOIA would also have no bearing if the Board were to be subject to a court order or subpoena.
5. Newberry Station Homeowners Ass'n v. Bd. of Supervisors of Fairfax County, 285 Va. 604, 616, 740 S.E.2d 548, 554 (2013) (internal quotations and citations omitted).
6. Oxford Learner's Dictionary (https://www.oxfordlearnersdictionaries.com/definition/english/confidential?q=confidential, last visited May 25, 2021).
7. Cambridge Dictionary (https://dictionary.cambridge.org/us/dictionary/english/confidential, last visited May 25, 2021).
8. Christian v. State Corp. Comm'n, 282 Va. 392, 718 S.E.2d 767 (2011).
9. Subsection B of § 2.2-3705.4 ("The custodian of a scholastic record shall not release the address, phone number, or email address of a student in response to a request made under this chapter without written consent. For any student who is (i) 18 years of age or older, (ii) under the age of 18 and emancipated, or (iii) attending an institution of higher education, written consent of the student shall be required. For any other student, written consent of the parent or legal guardian of such student shall be required.") and subsection C of § 2.2-3706 ("Prohibited releases. The identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed.").
