FOI Advisory Council opinion AO-02-23
AO-02-23
November 8, 2023
Joshua Stanfield
Yorktown, Virginia
Request received 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 email of January 22, 2023.
Dear Mr. Stanfield:
You have asked whether or not documents and communications of members of Governor-elect Youngkin's transition teams are public records subject to release upon request pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) when public funds are involved in funding transition team activities.
Factual Background
As background information, on November 28, 2021, you emailed Senator Tommy Norment, Jr., as the leader of "the Commonwealth transition team for Governor-elect Youngkin" and requested records in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [his] position as head of this transition team or any activity of the team thus far." On December 2, 2021, Senator Norment responded to your request by stating that "the requested records could not be found or do not exist as public records subject to [FOIA]." In a follow-up email to Senator Norment on December 1, 2021, you requested that the Senator cite the specific statutory exemption to FOIA that the Senator was applying to your request. Senator Norment responded that same day that his office "does not have any public records as defined in § 2.2-3701 of the Code of Virginia" in regard to your request. Senator Norment also directed you to contact the Virginia Freedom of Information Advisory Council (the Council) with any additional questions.
On November 28, 2021, you also emailed Senator David Suetterlein as the leader of "the Education transition team for Governor-elect Youngkin" requesting records in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [his] position as head of this transition team or any activity of the team thus far." On December 5, 2021, Senator Suetterlein responded that his office "has approximately fifty emails and documents responsive to your request." He also added that "these records are exempt from disclosure under § 2.2-3705.7(2) of the Code of Virginia, and therefore will not be released."
On November 28, 2021, you also emailed Delegate Kathy Byron as the leader of "the Labor transition team for Governor-elect Youngkin" requesting records in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [her] position as head of this transition team or any activity of the team thus far." On December 5, 2021, Delegate Byron responded that her office "has approximately 20 emails and documents responsive to your request." She also added that "these records are exempt from disclosure under § 2.2-3705.7(2) of the Code of Virginia, and therefore will not be released."
On November 28, 2021, Senator Jill Vogel responded to a records request that you made in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [her] position on the Governor-elect's transition team or any activity of the team thus far." Senator Vogel denied your request by responding that "[a]s you may know, by law these records are exempt from disclosure under § 2.2-3705.7(2) of the Code of Virginia." On November 28, 2021, you requested the Senator to "identify with reasonable particularity the volume and subject matter of withheld records" and to clarify whether the Senator's "correspondence and working papers are exempt, and that the records I'm requesting are in fact your correspondence and/or working papers?" You also requested the Senator to "exercise [her] discretion allowed in § 2.2-3705.7 to release the reported non-disclosure agreements used in the transition process." You further claimed that it was your "understanding that the use of NDAs in this public transition process has never happened before in Virginia." Senator Vogel responded on December 3, 2021, that she did "not have any relevant inventory of materials to report." She also expressed that you may not be "aware of the distinction in FOIA rules as they apply in this context" and suggested that you contact the Executive Director of the Council for clarification.
On November 29, 2021, Senator Siobhan Dunnavant responded to a records request that you made in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [her] position on the Governor-elect's transition team or any activity of the team thus far." Senator Dunnavant denied your request by responding that "[a]s you may know, by law records you have requested are exempt from disclosure under § 2.2-3705.7(2) of the Code of Virginia."
On December 1, 2021, you emailed Senator Amanda Chase "as part of the transition team for Governor-elect Youngkin" requesting records in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [her] position on this transition team or any activity of the team thus far." On December 7, 2021, Senator Chase's office emailed a response instructing you that "[r]equests for FOIA need to go through the Senate Clerk's Office."
On December 1, 2021, you emailed Aubrey L. Layne "as part of the transition team for Governor-elect Youngkin" requesting records in accordance with FOIA for "copies of all documents and electronic communications mentioning or related to [his] position on this transition team or any activity of the team thus far." On December 1, 2021, Mr. Layne emailed a response to you suggesting that you contact "the Communications Director For Governor Elect Younkin [sic]."
On December 7, 2021, you submitted a request for information to the Virginia Department of General Services (DGS) seeking records that: "(1) [m]ention or contain the proposed or actual budget for the transition or any financial breakdown of transition-related expenditures" and "(2) [c]ontain a list of transition officials with any government email addresses assigned to [the transition team]." On December 28, 2021, the Director of Communications for DGS provided you information regarding your request for transition budget items and communicated to you that "[w]hile expenditures have occurred, a breakdown of those expenditures will not be available until the transition period has ended." Moreover, she notified you that "DGS does not possess any documents responsive to your request for a list of transition officials with government email addresses."
On December 29, 2021, you submitted a FOIA request to the Virginia Information Technologies Agency (VITA) for "copies of all documents and electronic communications that: (1) [m]ention or contain the proposed or actual budget for the 2021–22 transition or any financial breakdown of transition-related expenditures; (2) [c]ontain a full or partial list of 2021–22 transition officials with any government email addresses assigned to them." The FOIA Officer for VITA initially responded that they have received your FOIA request and would respond by the statutory deadline of January 6, 2022. On January 6, 2022, the FOIA Officer for VITA responsible for providing copies of applicable records responded as follows:
With respect to the first part of item 1, budget, VITA submitted a decision package that reflects the IT budget. A copy of that package is available from the DPB [Department of Planning and Budget] website at http://publicreports.dpb.virginia.gov/rdPage.aspx?rdReport=OB_DocView&Param1=58787142
The 2021 Appropriation Act incorporated that budget at Item 479(R). See https://budget.lis.virginia.gov/item/2021/2/HB1800/Chapter/1/479/
VITA does not have records responsive to the second part of item 1, expenditures, and does not expect to have any such records until some time [sic] after the transition is complete.
With respect to item 2, a list of email addresses, VITA does not concede that we are the proper custodian of that information. Email data and addresses of other agencies generally is [sic] not obtainable from VITA under FOIA because those are records of the other agencies and VITA is not the custodian of such records. See Va. Code 2.2-3704(A)&(J); Va. Code 42.1-85(B). In this case, however, VITA is producing the information requested - the attached list of 36 gov-elect.virginia.gov email addresses.
Analysis
You have asked whether or not documents and communications of members of Governor-elect Youngkin's transition teams are public records subject to release upon request under FOIA when public funds are involved in funding transition team activities. This question necessarily requires that we determine whether a Governor-elect's transition teams are public bodies subject to FOIA, whether the records of those transition teams are public records subject to FOIA, and if those records are public records, whether they are exempt as working papers and correspondence pursuant to subdivision 2 of § 2.2-3705.7. Each of these issues is addressed separately below.
Whether a Governor-elect's transition teams are "public bodies" subject to FOIA
First, we need to determine if a Governor-elect's transition teams are public bodies under FOIA. Then, we can examine whether the documents and communications of members of these transition teams are public records subject to FOIA. Section 2.2-3701 defines a "public body" in relevant part as:
any legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds. It shall include . . . any committee, subcommittee, or other entity however designated of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee, or entity because it has private sector or citizen members.
From the outset, it is apparent that these transition teams do not fall within the first two clauses of the definition, so we must instead focus on whether these transition teams are "other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds" or whether they are any "other entity however designated of the public body created to perform delegated functions of the public body or to advise the public body." The Governor-elect's transition teams appear to be composed of a mix of elected officials and private citizens. Participation by private sector or citizen members does not necessarily prevent these teams from being considered public bodies nor does it automatically cause them to be deemed public bodies. A determining factor in this matter may be a further examination of the purpose for these transition teams and their role in advising an elected official who has yet to assume office.
The Supreme Court of Virginia has previously opined on "whether members-elect of a public body could be considered 'members' for purposes of determining whether a violation of the meetings rules of FOIA had taken place."1 The Supreme Court held that "a 'member-elect' was not a 'member' as contemplated in the plain language of the statute."2 Consistent with the Supreme Court's ruling, this office released an advisory opinion that an elected official is not a "member" of the government "until he actually takes office."3 Thus, a Governor-elect does not possess any official governmental authority or responsibility until he is inaugurated as Governor. Moreover, our office recognized that advisory groups, such as a Governor-elect's transition teams in this instance, are organized to advise a private citizen.4 Even though several members of the Governor-elect's transition teams hold elected office in their own right, their roles on the transition teams are separate from their elected positions. These members who serve on the transition teams are likely advising and assisting the Governor-elect in preparing for the responsibilities associated with his newly elected office. These transition teams' purposes are to ease a Governor-elect's transition from a private citizen to the role of the Commonwealth's chief executive.
In a similar matter, the Attorney General of Virginia previously issued an opinion that "a citizen advisory committee created by a city mayor to advise the mayor was not a public body because it is not created by a public body, does not perform delegated functions of a public body, does not advise a public body, and does not receive public funding."5 Prior opinions of this office have considered "the definitional requirement that in order for a committee or other similar entity to be considered a public body, it must have been created by another public body and perform a delegated function for, or provide advice to, that other public body."6 In this instance, it appears that the transition teams were created by the Governor-elect who has no official authority or capacity until he is sworn into office at his inauguration. The transition teams were not created by nor were they performing any delegated functions for another public body. Furthermore, these transition teams were not advising a public body but were advising a private citizen. For those reasons, it appears that a Governor-elect's transition teams are not "other [entities] however designated of [a] public body created to perform delegated functions of the public body or to advise the public body."
Next, we consider whether a Governor-elect's transition teams are public bodies based on whether these transition teams receive public funding. The definition of a "public body" in § 2.2-3701 includes "other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds." This office has previously opined on numerous occasions the meaning of "supported wholly or principally by public funds."7 Prior advisory opinions have promoted as a guideline that for an entity to be considered a public body, the entity must receive "at least two-thirds, or 66.6 percent, of its operating budget from government sources," but that "ultimately the question of whether an entity is supported principally by public funds is a question of fact that must be decided on a case-by-case basis."8 For example, the Circuit Court of Buchanan County cited from prior Council opinions and found in Voice v. Appalachian Regional Community Services, Inc. that "whether an organization is 'supported . . . principally by public funds' depends on the total contribution from public funds as measured against the number and magnitude of individual private contributions."9 Moreover, the court held that "an organization was a public body subject to FOIA because it received at least 54.94 percent of its funds from a county in the form of three checks, and the rest of its support came from 'a number of smaller payments from a variety of private sources.'"10
In the Agency Narrative section of the "Decision Package" record provided to you by DGS, it establishes that every four years, DGS serves as the lead agency in coordinating efforts with Capitol Police, the Secretary of Administration's Division of Selected Agency Support Services (DSASS), VITA, the State Police, and other affected entities to ensure an orderly transfer of power for the three top statewide officials: the offices of Governor, Lieutenant Governor, and Attorney General. This record also explains that DGS files budget requests, tracks expenditures and allocations, and coordinates work with other state agencies for Transition and Inauguration activities. The provided record also shows that DGS establishes transitional office space for newly elected officials and transition staff after the elections in November while also handling the transition to permanent office space after the inauguration. Additionally, the record describes that DGS manages the transition of the Governor's Executive Mansion between incumbent and newly elected First Families. The provided record also states that DGS acts as the main coordinator for the logistical planning and security for the inauguration by supervising the purchase, installment, and removal of all event infrastructure with other state agencies.
Records provided by DGS in response to your request show that for fiscal year 2022, general funds totaling $2,157,495 were requested for allocation to various state agencies to facilitate the transfer of the offices for the Governor ($1,801,502), Lieutenant Governor ($188,090), and Attorney General ($167,903) from the prior administration to the present one.11 From the general fund, $511,057 was specifically allocated to DGS to support anticipated costs for the inauguration in January 2022.12 The provided documents also show that these funds were to be used toward the purchase, rent, transportation, installation, and removal of inauguration infrastructure and equipment, such as, but not limited to, bleachers, portable toilets, signage, tents, chairs, landscaping (preparation and repair), sound systems, JumboTrons, and monitors.13 Nevertheless, the budget records provided to our office do not show that any public funds were given to the Governor-elect's transition teams, as opposed to being spent directly by DGS or other state agencies involved in the transition. It is unclear what amount of financial support, if any, the Governor-elect's transition teams received from public funds. Unfortunately, given this factual background, our office does not have sufficient information on the sources of funds to determine whether the transition teams were supported wholly or principally by private or public funds. Thus, our office is unable to state definitively whether the transition teams are or are not public bodies based on support by public funds.
Whether the transition teams' records are "public records" subject to FOIA
The definition of "public records" in § 2.2-3701 includes "all writings and recordings . . . 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." Therefore, in order to meet this definition, there are three basic elements: (i) there must be a record of any type and stored in any manner; (ii) the record must be "prepared or owned by, or in the possession of a public body or its officers, employees, or agents"; and (iii) the record in the possession of such body or agent must be "in the transaction of public business." Presuming that the records you requested do exist, then the first element of the definition is satisfied and we need only consider the second and third elements of the definition.
Addressing the second element, if a Governor-elect is considered a private citizen and his transition teams are not considered public bodies as previously discussed, then transition team records at first blush would not meet the definition of "public records" in § 2.2-3701 because they would not be "prepared or owned by . . . a public body or its officers, employees, or agents." However, if a Governor-elect's transition teams are found to be public bodies due to being supported wholly or principally by public funds, then this aspect of the definition would be met. Additionally, this second element could be satisfied if any transition team records come into the possession of another public body such as one of the other public bodies involved in the transition. In such a hypothetical situation, such records could be requested from the other public body (in this instance, whichever one of the other agencies involved in the transition hypothetically has these records in its possession). As making this determination would require knowledge of facts that are not before us, we can only conclude that the second element may or may not be satisfied depending on whether the transition team is a public body based on support by public funds and whether transition team records came into the possession of other public bodies.
Turning to the third element, whether or not a Governor-elect's transition teams' records are "in the transaction of public business" requires further analysis. The purpose of these transition teams may be generally considered to be political in nature and activity. As a Governor-elect has yet to assume office, he possesses no authority or capacity to conduct public business until inaugurated. Likewise, his transition teams' capability to perform business on behalf of the citizens of the Commonwealth are also restricted because although some members also serve in public offices, their activities as transition team members are separate from their public business as public officials. A complete examination of whether any action, decision, or policy taken by a Governor-elect or his transition teams prior to his entering office has legal authority or effect is outside the scope of FOIA. For example, if perchance there was some circumstance whereby a Governor-elect was not inaugurated, the legality of any proposed policy or appointment made prior to assuming office would be a matter to be determined by a court. FOIA provisions apply to public bodies and officials as defined in § 2.2-3701 but for reasons stated previously FOIA does not apply to private citizens.14 Thus, until a Governor-elect assumes the Office of Governor and holds the authority and power to act as such, he is considered a private citizen and not subject to FOIA.
Additionally, as observed above, it is possible that transition team records might come into the possession of one of the public bodies involved in the transition and be used by that public body in the transaction of its public business. If this were to occur, then those records would be public records subject to FOIA in the possession of whichever public body held them, and a requester could seek them from that public body. As a hypothetical example, if someone on a transition team communicated with DGS about the logistic preparations for the inauguration, records of such communications would be part of DGS's public business in carrying out its role in regard to the transition and therefore could be requested from DGS, even if the transition team itself is not a public body engaged in the transaction of public business.
Whether the transition teams' records are exempt as working papers and correspondence
In the event that a Governor-elect's transition teams' records are found to be "public records" (either because the transition teams are publicly funded and therefore are public bodies or because the transition teams' records are in the possession of another public body in the transaction of public business), further analysis is required in determining whether the exemption for working papers and correspondence cited by various transition team members under subdivision 2 of § 2.2-3705.7 applies in this instance. This exemption allows a public body to withhold the following records:
Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth. However, no information that is otherwise open to inspection under this chapter shall be deemed excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under this chapter or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107.
As used in this subdivision:
"Members of the General Assembly" means each member of the Senate of Virginia and the House of Delegates and their legislative aides when working on behalf of such member.
"Office of the Governor" means the Governor; the Governor's chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104.
"Working papers" means those records prepared by or for a public official identified in this subdivision for his personal or deliberative use.
This office has opined on several previous occasions about this discretionary exemption for working papers and correspondence.15 Prior opinions have provided the following three factors as general guidelines when analyzing the application of the working papers exemption found in subdivision 2 of § 2.2-3705.7:
1. The purpose for which the record was created;
2. The person for whom the record was created;
3. Whether the official who holds the exemption has disclosed the record to others and, if so, whether that disclosure was (i) necessary or desirable to further the official's own deliberative process or (ii) dissemination beyond the personal or deliberative use of the official who holds the exemption.16
Now, applying these guidelines to the existing matter, we examine the purpose for which the records were created "keeping in mind that records intended for use by others do not become exempt working papers merely because they are received by an official to whom the exemption is available."17 Given the factual background presented, our office can only surmise the purpose, content, and extent to which persons had access to the records as no records of the transition teams were provided to us. Our office has previously concluded that "[i]f a factual dispute about the content or purpose of the records exists, a court of law is the appropriate place to make any necessary determinations of fact."18 The Supreme Court of Virginia has stated that "as a threshold matter, a court's in camera review of the records constitutes a proper method to balance the need to preserve confidentiality of privileged materials with the statutory duty of disclosure under VFOIA."19
This office has stated previously that the intent of the working papers exemption is to promote "decision-making creativity with an ongoing zone of privacy [which] ultimately benefits the public by encouraging the free-flow of ideas by government employees and officials."20 "To the extent that the communications are prepared for the chief executive officer for his personal or deliberative use, the 'working papers' exemption may be properly invoked."21 However, we must first address the question of whether a Governor-elect qualifies for the exclusion under subdivision 2 of § 2.2-3705.7. FOIA's policy statement set forth in subsection B of § 2.2-3700 directs 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." Following this narrow construction rule, it appears that a Governor-elect would not qualify under the definition for the "Office of the Governor" as defined in the statute. Just as the Supreme Court of Virginia held that "members-elect" are not "members" of public bodies, we cannot construe a Governor-elect to be the same as the Governor. In analyzing the plain language of subdivision 2 of § 2.2-3705.7, a Governor-elect is not included in the statute as written and therefore cannot use this exemption.
However, as several members of the transition teams are also members of the General Assembly, and as such are included within the plain language of subdivision 2 of § 2.2-3705.7, they may utilize the exemption to withhold their working papers and correspondence. The other members of the transition teams who are not officials identified in the exemption itself but are private citizens would not qualify under the exemption provided for working papers and correspondence because it is limited only to those public officials and employees identified in the statute.
Conclusion
In summary, it would appear that the Governor-elect's transition teams may not be public bodies (unless they are principally supported by public funds) and many, if not all, of their records probably would not be "public records" subject to the requirements of FOIA since their activities would be considered political business as opposed to public business. Unfortunately, our assessment is necessarily inconclusive due to incomplete financial information concerning the transition teams' amount of support by public funds. Finally, given the plain language of subdivision 2 of § 2.2-3705.7, this exemption may not be used by a Governor-elect or citizen members of a Governor-elect's transition teams but may be used by members of the General Assembly.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
Joe Underwood
Senior Attorney
1. Beck v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004).
2. Id., 267 Va. at 487-88, 593 S.E.2d at 197-198.
3. Freedom of Information Advisory Opinion 27 (2004).
4. See Freedom of Information Advisory Opinion 11 (2007).
5. 1978-1979 Op. Att'y Gen. Va. 316A.
6. Freedom of Information Advisory Opinion 11 (2007) (emphasis in the original).
7. See Freedom of Information Advisory Opinions 05 (2017), 01 (2015), 07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005), 28 (2004), 03 (2004), and 09 (2003).
8. Id.
9. Voice v. Appalachian Regional Community Services, Inc., 89 Va. Cir. 284 (Buchanan County 2014) (finding that an organization that received 54.94 percent of its support from public funds was a public body); Wigand v. Wilkes, 65 Va. Cir. 437 (City of Norfolk 2004) (finding that a corporation that received approximately 25 percent of its support from public funds was not a public body).
10. Voice, 89 Va. Cir. at 287.
11. Introduced Senate Bill 1100 (2021 Session), Item 479(S).
12. Id.
13. 2021–2022 Transition and Inauguration Budget Estimate.xlsx.
14. See Freedom of Information Advisory Opinion 27 (2004).
15. Freedom of Information Advisory Opinions 08 (2018), 01 (2016), 02 (2015), and 17 (2004).
16. Id.
17. Freedom of Information Advisory Opinion 02 (2015).
18. Freedom of Information Advisory Opinion 08 (2018).
19. Hawkins v. Town of South Hill, 87 S.E.2d 408, 416 (Va. 2022) (alterations and citations omitted).
20. Freedom of Information Advisory Opinions 02 (2015) and 17 (2004).
21. Freedom of Information Advisory Opinion 01 (2000).
