Attorney General's Opinion 1975-76 #414

VIRGINIA FREEDOM OF INFORMATION ACT -- Human Rights Commission Not Exempt From Provisions Of. CONFLICT OF LAWS -- Freedom Of Information Act -- Ordinances cannot exempt Human Rights Commission from Act.

HUMAN RIGHTS COMMISSION -- Localities Cannot Adopt Ordinances That Would Exempt Commission From Freedom Of Information Act. ORDINANCES -- Freedom Of Information Act -- Localities cannot adopt ordinances that would exempt them from Act.

RECORDS -- Complaints Filed With Human Rights Commission Are "Official Records" Under Freedom Of Information Act. RECORDS -- Conciliation Agreements -- Effected by Human Rights Commission are "official records" under Freedom of Information Act.

VIRGINIA FREEDOM OF INFORMATION ACT -- Localities Cannot Adopt Ordinances That Would Exempt Them From Act.

October 10, 1975

THE HONORABLE JAMES M. THOMSON
Member, House of Delegates

75-76 414

This is in reply to your recent letter in which you ask my opinion regarding the following inquiry submitted by the City Attorney of Alexandria:

"The City Council of the City of Alexandria established a Human Rights Commission and provided procedures for enforcing the City's Human Rights Code in City Ordinance No. 2011. As part of the enforcement procedure the Human Rights Administrator for the City is responsible for investigating complaints and proposing conciliation agreements. 18A-16 provides, in part:

'. . . Each complaint shall be held in confidence by the human rights administrator unless or until the complainant (person aggrieved) and the respondent consent to its being made public, or until the time a hearing procedure such as described in section 18A-21 has begun. '

"In addition, 18A-18 provides, in part:

'. . . Conciliation agreements may be made public but such public disclosure shall not reveal the identities of the parties involved except at the request of all of the persons accused. '

"I would appreciate an opinion . . . on the following questions: "1. Is it permissible for the human rights administrator to keep the complaint confidential in accordance with the ordinance as quoted above? In considering this question I would ask that you keep in mind that the City's Code contains the threat of criminal prosecution (18A-24) and the human rights administrator's investigation may be significant for any future action by the Commission leading to prosecution.

"2. Is it permissible for the human rights administrator and the Commission to keep confidential the identities of the parties to a conciliation agreement signed by the parties and the human rights administrator in accordance with the portion of 18A-18 quoted above?"

With respect to the first inquiry, I direct your attention to my recent opinion to the Honorable Frederic Lee Ruck, Attorney for the County of Fairfax, dated June 18, 1975, a copy of which is enclosed. That opinion held that complaints filed with the Fairfax County Human Rights Commission were official records of the Commission subject to public disclosure requirements of the Freedom of Information Act contained in 2.1-342(a), Code of Virginia (1950), as amended. The holding in that opinion as it relates to the confidentiality of filed complaints is, in my view, equally applicable to complaints filed in accordance with the Alexandria ordinance.

In reaching this conclusion, I have taken into account that the Alexandria ordinance contains the threat of criminal prosecution. Upon a review of the ordinance establishing the Human Rights Commission, it is clear that the focus of the Commission is not upon criminal investigations, but one of conciliation and persuasion. Section 18A-18 specifically provides that the administrator shall endeavor to eliminate unlawful discriminatory practices through conciliation and persuasion. Section 18A-24 provides that no criminal proceeding shall be initiated until the Commission shall have first announced a decision of a violation which shall include findings of fact, and 18A-21 provides that the Commission cannot hold any hearing or render any decision prior to the utilization of the conciliation provisions. In my opinion, the proceedings of the Commission are not criminal investigations within the meaning of that term, and consequently would not invoke the exception contained in 2.1-342(b)(1), which exempts from disclosure ". . . evidence and complaints related to criminal investigations, reports submitted to the State and local police in confidence. . . ." Accordingly, I am of the opinion that the complaints filed with the Alexandria Human Rights Commission are subject to public disclosure requirements of the Freedom of Information Act.

I would advise, further, that conciliation agreements entered into and signed by the complaining party, the alleged offending party and the Human Rights Administrator are official records of the Human Rights Commission and, as such, are subject to public disclosure. I find no provision of the Freedom of Information Act, or other provisions of law, which would authorize the Commission to withhold any portion of such records. It is my opinion, therefore, that the Administrator would not be authorized to withhold the identities of the parties who sign any such conciliation agreement.