The FOI Advisory Council issued 11 written advisory opinions between July and November. The council was expected to issue an additional opinion some time in December.
In AO-06-02, the council said a prearranged gathering of three members of the Frederick County Board of Supervisors at the request of a member of the Commonwealth Transportation Board to discuss the extension of Route 37 was a meeting subject to FOIA. Because the gathering included three or more members of a public body and involved the discussion or transaction of public business, the public body should have given notice.
In AO-07-02, the council wrestled with the issue of whether time sheets are personnel records that may be withheld or records related to “the 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” that must be disclosed. Citing a 1984 Attorney General opinion, the council told Washington County Personnel Services Manager Marsha Johnson that the timesheets she described in her request for a council opinion fell into the former category.
AO-08-02 reviewed a series of questions related to a closed meeting held by the Portsmouth City Council and the Portsmouth City Manager about subsidizing the organizers of the Todi Music Festival with proceeds from a local concert hall’s surplus fund. The council found most aspects about the meeting adequate, though the council also said the motion to go into closed session was deficient because they identified the purpose of the meetings and made specific reference to the applicable exemption, but did not identify the subject of the discussion.
In AO-09-02, the council confirmed that Ironbridge Acres, a wholly owned for-profit subsidiary of the Hospital Authority of Petersburg, is a public body subject to FOIA. So too is the Halifax County Industrial Development Authority, the council said in AO-17-02.
The council noted in AO-10-02 that lists of delinquent property owners, identified by parcel, legal description and the owner’s name and mailing address, are subject to public disclosure under the Tax Code. Public property books listing the name, address and amount of property assessment for each parcel of property are available under FOIA. The council also noted that the requester could obtain the information on a computer disk if the clerk stored the records electronically.
In AO-11-02, the council declined Wise County Clerk of Court (and VCOG board member) Jack Kennedy’s invitation to state a position on whether clerks are bound to follow the U.S. Supreme Court’s line of cases on access to court records. The council said the request was outside the scope and authority of the office. The council also found that if a citizen requests a copy of a digital database containing court documents held exclusively in digital format, the court would be required to provide access to those records, and may redact only those portions of the database subject to an exemption.
The council opined in AO-12-02 that either the mayor or the city manager of a locality could invoke the working papers exemption, but not both. The council found that determining who a locality’s chief executive is depends on bylaws, charters and/or a close examination of what types of duties the official performs. The council also noted that “a locality may not switch back and forth as to which public official may exercise the exemption.”
In AO-13-02, the council found that some of the State Board of Corrections records related to the procedures and practices governing the process by which those designated by an inmate are notified in case of serious illness, injury or death, would be available under FOIA, but that some would be exempt if they jeopardized prison security or safety.
The council reiterated in AO-14-02 that it does not have the authority to decide whether a fee charged by an entity for public records is reasonable. The council noted that a locality can ask for a deposit if it anticipates that the cost of fulfilling the request will exceed $200; however, “the public body would have to refund the difference between the estimated costs and the actual costs” if the final amount ended up to be less than what was anticipated.
In AO-15-02, the council confirmed that nothing in FOIA prohibits taking a “straw poll” or any other means of reaching consensus during a closed meeting, provided that any agreement “will not become effective until it is identified at an open meeting, and voted on by the membership.”
Local public bodies are absolutely prohibited from meeting electronically, the council said in AO-16-02. While noting that the public may participate electronically, “any meeting of a local public body must be held where all of the participating members are assembled in one physical location.”