Attorney General's Opinion 1977-78 #486

VIRGINIA FREEDOM OF INFORMATION ACT Newspaper Advertisement Paid For By Private Citizens; Coupons From It Received By Individual Board Members Are Not Official Records Members need not retain or make available to public.

VIRGINIA FREEDOM OF INFORMATION ACT Petition Presented To Board Of Supervisors Is Official Record Must be made available to public.

January 13, 1978

THE HONORABLE H. BEN JONES, JR.
County Attorney of Fauquier County

77-78 486

I respond to your letter which reads as follows:

"This is to request that you render an opinion regarding interpretation of the Virginia Freedom of Information Act as the same applies in the following factual situation.

"The Thursday, October 27, 1977, edition of the Fauquier Democrat, a newspaper published and having general circulation in Fauquier County, contained a full page advertisement, a copy of which is attached hereto. In the lower right hand corner of said advertisement subscribers were encouraged to register their opinion by clipping and mailing a 'coupon' to their individual Supervisors.

"Since that publication the individual members of the Board of Supervisors of Fauquier County have received a number of coupons. Additionally the Board has received certain petitions bearing upon the question of recent revisions to the County's Comprehensive Plan.

"In my opinion, any formal petition received by the Board would doubtless be included in the definition of 'official records' set out in §2.1-341 of the 1950 Code of Virginia, as amended. Question has been raised as to, first, whether coupons, a sample of which I have enclosed with this letter, received by the Supervisors in their individual capacities should be considered official records for the purpose of the Freedom of Information Act, and second, if so, whether or not the individual Supervisors are under an obligation under §2.1-341 of said Code to maintain and preserve said coupons for public inspection."

The newspaper advertisement containing the coupons in question was, I note, placed and paid for by a group of private citizens.

The Virginia Freedom of Information Act requires that official records of public bodies and agencies of the State and its political subdivisions shall be made available for public inspection and copying upon proper request by any citizen of this State. See §2.1-342(a), Code of Virginia (1950), as amended. The definition of "official records" is found in §2.1-341(b) of the Code and reads as follows:

"Official records" means all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, made and received in pursuance of law by the public officers of the State and its counties, municipalities and subdivisions of government in the transaction of public business."

Upon consideration of the foregoing statutory provision, I am of the opinion that the newspaper coupons received by individual Board members under the circumstances you describe are not official records "received in pursuance of law" or "in the transaction of public business" within the meaning of §2.1-341(b). Your first inquiry is, therefore, answered in the negative. Inasmuch as the newspaper coupons received by individual Board members are not official records, I am of the opinion that there is no legal requirement that Board members retain the coupons or make them available for public inspection.

With respect to any written petition which is presented to the Board of Supervisors, I am of the opinion that such a document would clearly constitute an official record of the Board within the terms of §2.1-341(b). Accordingly, such official records are required to be made available for public inspection upon proper request in accordance with §2.1-342(a).