Attorney General's Opinion 1973-74 #454

December 3, 1973

THE HONORABLE THOMAS A. GRAVES, JR.
President College of William and Mary

73-74 454

This is in response to your recent inquiry which sets forth certain questions regarding the Virginia Freedom of Information Act as follows:

"1. Under §2.1-342(b) of the Act, certain records are excluded from public examination, including scholastic and personnel records. Does the decision of the Board to confer an honorary degree fall within this exclusion? Traditional academic protocol and courtesy require that the intended recipient of such an honor be first notified and have the opportunity to accept, prior to public announcement. The notification and acceptance process, especially in the case of some public figures, can take several months.

"2. Under the above or any other section, is it permissible for the Board to stipulate that its decision to confer nonacademic honor, such as naming of a building, be kept in confidence until the honoree is notified?

"3. It is necessary, for the records, that Board actions on personnel actions refer to salaries. If it is true that salaries are excluded from public examination by the law, then is it permissible for the Board to have a section of its Minutes with such information, with such section, or appendix, excluded from public review?

"4. Adoption of budget requests to be submitted to the Governor's Office is a matter reserved for the Board. However, it has been the policy of the Governor's Office (particularly the Budget Division and the Division of Engineering) that agencies not publicy announce their budget request until submitted; and that the Budget and Engineering Divisions reserve the right to disclose these requests. Since that policy is in force, is it in conflict with the Freedom of Information Act which requires that the Board announce its various actions unless otherwise excluded?

"5. Is it necessary for the Board to move into 'executive session ' in order to hold discussions of certain matters, and then move into 'open session ' to resume taking various actions? Do the Minutes need to show that an 'executive session ' was held? Or is the Board considered to be in 'executive session ' anyway, inasmuch as its meetings are not open?

"On a related matter, not affecting the Board of Visitors directly, the following question has been raised: "6. Personnel records are not open to public inspection. May the College decline, on this basis, to make available such material as personnel rosters, names and addresses of employees, statistical data pertaining to employees such as percentages of minority group employees, etc.?"

With respect to your first inquiry concerning board decisions to confer honorary degrees, I am of the opinion that any final action by the board of visitors in conferring honorary degrees would be subject to the requirements of §2.1-345 of the Code. Section 2.1-345 requires that boards of visitors report official actions taken and the minutes recording such official actions with the exception of actions excluded by §2.1-344 of the Code. I find none of the exceptions contained in §2.1-344 applicable to board action in conferring honorary degrees. Accordingly, when the board makes a final decision to confer an honorary degree, such action should be reported following the board meeting and that portion of the board meeting minutes recording such final action should be included in the minutes of board meeting made available to the public within three days.

I believe that my response to your first inquiry adequately addresses your second inquiry. In response to your third inquiry, I am of the opinion that §2.1-344(a)(1) permitting executive meetings for "discussion or consideration of employment, assignments, appointments, promotion, demotion, salaries, disciplining or resignation of public officers, appointees, or employees of any public body," would authorize the board to take action on personnel matters involving salaries and those minutes relating thereto may be excluded from the reported minutes of the board required by §2.1-345. Section 2.1-345 specifically excludes from its reporting requirements board actions and minutes relative to subjects contemplated by §2.1-344.

With respect to your fourth inquiry as to whether board of visitors decisions relative to budget request are subject to the requirements of the Act, I would answer in the affirmative. Any final action or decision by the board relative to budget requests to be submitted would be subject to the reporting requirements of §2.1-345.

Your fifth inquiry relates to procedures for initiating and arising from executive sessions. Section 2.1-345, in effect, makes it lawful for all board of visitors meetings and business transacted therein to be handled in executive or closed session, subject only to the requirement that: (1) board action, not excluded by §2.1-344, be announced following board meetings, and (2) that board meeting minutes recording such board actions, not excluded by §2.1-344, be made available to the public. Since all board business may lawfully be handled in executive or closed session, and since even the limited reporting requirements imposed upon boards of visitors by §2.1-345 clearly do not apply to board actions regarding subjects within the purview of §2.1-344, boards of visitors would not be subject to the procedural requirements for going into and arising from executive session imposed upon public bodies not excepted from the Act.

With respect to your inquiry regarding disclosure of college records, the provisions of §2.1-342 govern. Section 2.1-342(a) provides, generally, that all official records of State institutions, agencies, and public bodies shall be open to inspection and copying by any citizen of this State. Section 2.1-342(b) excludes five categories of records from the disclosure requirements of §2.1-342(a). More specifically §2.1-342(b)(3) excludes personnel records of public bodies from general disclosure requirements. It should be noted, however, that §2.1-342(b)(3) does not prohibit disclosure of personnel records, but rather excludes them from required disclosure. Accordingly, in the absence of other provisions of law imposing confidentiality upon personnel records, public bodies and institutions may, as a matter of policy, permit their public inspection. College records containing names and addresses of employees, statistical data on employees, and employee rosters would, in my view, constitute personnel records within the meaning of §2.1-342(b)(3). In view of the foregoing, I am of the opinion that the College is not required by the Act to disclose the aforementioned records.