FOI Advisory Council Opinion AO-06-13

AO-06-13

June 20, 2013

Robert McCabe
The Virginian-Pilot
Via Electronic Mail

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based upon the information presented in your electronic mail message dated May 31, 2013.

Dear Mr. McCabe:

You have asked whether records showing the amount of a settlement agreement paid to a former public employee are subject to disclosure under the Virginia Freedom of Information Act (FOIA). As background, you stated that the Virginia Port Authority (the Authority) entered into a settlement agreement with its former executive director in November, 2012. You made a request the same month to the Authority for "a copy of the severance agreement...including all the financial terms." That request was denied pursuant to the personnel records exemption. You made a new request in April, 2013, after speaking with this office, for "a copy of any records that show the amount of the payment made to [the former executive director] as part of the settlement - for example, an invoice, a check, a payment schedule, or any other documents that would show the dollar amount spent or to be spent." This follow-up request was again denied pursuant to the personnel records exemption. Additional background information will be provided as needed below.

The general policy of FOIA expressed in subsection A 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. Regarding public records, the policy continues by stating that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ...all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked. The same section goes on to state the rule of construction for exemptions: 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. Note that the Supreme Court of Virginia has consistently applied this narrow construction rule when interpreting FOIA exemptions.¹

When it denied your requests, the Authority cited subdivision 1 of § 2.2-3705.1 as well as subsection A of § 2.2-3705.8 (collectively "the personnel exemption"). Subdivision 1 of § 2.2-3705.1 exempts from mandatory disclosure [p]ersonnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Subsection A of § 2.2-3705.8 provides in relevant part that certain records - which might otherwise be considered exempt as personnel records - must be disclosed:

Neither any provision of [FOIA] nor any provision of [the Government Data Collection and Dissemination Practices Act] shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1.

Reading these sections together, it is clear that contracts settling public employee employment disputes may be withheld as personnel records, but other contracts between a public body and its officers or employees must be disclosed. In applying this rule to the facts presented, it is clear that the Authority acted within the bounds of FOIA when it withheld the severance agreement as a personnel record, because that severance agreement is a contract settling an employment dispute between the Authority and the former executive director.

However, we must also consider your subsequent request for any records showing the amount of any payments made to the former executive director. In the case of LeMond v. McElroy, the Supreme Court considered a request for a settlement agreement and related accounting records.² The settlement agreement in LeMond arose from a situation concerning an erroneous detention of a citizen by a sheriff, rather than an employment dispute, and so a different exemption was at issue. However, the distinction between the settlement agreement and the accounting records that was drawn by the Court is informative of the present inquiry:

Second, with regard to the accounting records...we do have a precise description of the items which are sought and which are being withheld: 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.³

Thus the Court drew a clear distinction between the settlement agreement itself and accounting records reflecting payments made pursuant to that agreement. Applying the narrow construction rule to the facts, the Court held that even if the settlement agreement was exempt, the accounting records were not.4 Following LeMond, this office previously opined that individual documents reflecting the amount paid in a settlement or to an attorney are public records.5 Note that while subsection A of § 2.2-3705.8 allows contracts settling employment disputes to be withheld as personnel records, it expressly requires records of the ... 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 to be released upon request. 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.

Turning back to the facts you presented, in its second denial of your request, the Authority stated that "both sections 2.2-3705.8(A) and 2.2-3705.1(1) of the Code of Virginia make the terms of any such a contract or agreement including any payment thereunder exempt from disclosure under FOIA." In applying the narrow construction rule and the reasoning of the Court cited above, we must respectfully disagree with this assertion by the Authority. The plain language of the quoted portion of subsection A of § 2.2-3705.8 addresses contracts, but says nothing about payment or accounting records created pursuant and subsequent to the settlement agreement. Rather than a narrow construction as required by FOIA, the Authority's interpretation of the exemption is expansive, as it would exempt from disclosure records that are not mentioned in the plain language of the exemption, contrary to the policy of FOIA. Therefore it appears that the Authority erred when it denied your request for records of payments made (or to be made) pursuant to the settlement agreement.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1. See, e.g., Fenter v. Norfolk Airport Authority, 274 Va. 524, 649 S.E.2d 704 (2007); White Dog Publ'g v. Culpeper County Bd. of Supervisors, 272 Va. 377, 634 S.E.2d 334 (2006); Tull v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998).
2. 239 Va. 515, 391 S.E.2d 309 (1990).
3. Id., 239 Va. at 521, 391 S.E.2d at 312-313.
4. Id.
5. Freedom of Information Advisory Opinion 14 (2000).