FOI Advisory Council Opinion AO-02-03

January 23, 2003

Ms. Tracy Eddy
Chester, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mail of November 20, 2002 and your fax of December 4, 2002.

Dear Ms. Eddy:

You have asked a question concerning access to records under the Virginia Freedom of Information Act (FOIA) that were the basis of a disciplinary action against you by your employer, the County of Chesterfield. You indicate that you were disciplined for sending an "excessive number of pages" on the County's text paging system. You state that you were not told the number of pages, the time frame of the pages, or any other information leading to the conclusion that your use of the text paging system was excessive.

You made a FOIA request to your department head, asking for detailed documentation of all text paging records sent from you to a particular number and text paging records of all other pages sent by or to you between November 1, 2001, and September 30, 2002. By way of background, you indicate that the County stores data related to text paging usage in an electronic database and that you asked for records from the database that show the name of the sender, the Internet protocol address of the sender, the name of the recipient, the Internet protocal address of the recipient, the pager number of the recipient, the date of the page, the time of the page, the full text of the page, and any other pertinent information related to the page that is captured by the server. In response to your request, the county attorney stated that the records were exempt from disclosure pursuant to subdivision A 8 of § 2.2-3705 of the Code of Virginia because the records were compiled specifically for use in an active administrative investigation concerning personnel matters. Your question is whether you are entitled to all or any part of the records that you requested.

Subsection A of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. In order to withhold a record, the custodian must cite a specific statute that exempts the record from disclosure. Section 2.2-3705 sets forth 81 exemptions that would allow records to be withheld from public inspection and copying. However, in setting forth the 81 exemptions, subsection A of § 2.2-3705 states that the records subject to the exemptions may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.

In this case, the County cited subdivision A 8 of § 2.2-3705, which exempts [l]egal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. Also relevant, although not mentioned in the County's response, is subdivision A 4 of § 2.2-3705 which exempts from disclosure [p]ersonnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Personnel records are not defined by FOIA, but the Attorney General of Virginia has opined that personnel records include records relating to job performance, job history, and evaluations and similar records maintained by an agency for its own internal administrative purposes.1 In this case, it appears that records relating to your usage of the text paging system are personnel records.

At first glance, it appears that the personnel exemption and the active administrative investigation exemption are in conflict in the facts that you present. However, rules of statutory construction dictate that conflicts between laws should be avoided whenever possible. The Attorney General has stated that "statutes dealing with the same subject must be read together to give effect to the legislative intent. They should not be read in isolation, but must be construed to produce a harmonious result, giving effect to all provisions if possible."2

The Attorney General opined that the exemption for records of active administrative investigations represents "a legislative intent to permit an agency to exercise the discretion to deny access generally to information within an agency's records that, if released, would hinder investigations of alleged misconduct by government employees." It is important to note, however, that this interpretation highlights that the exemption is discretionary -- an agency has the authority to decide if it wants to apply the exemption to records that might fall under it. The personnel exemption is likewise a discretionary exemption. However, the exemption states that access shall not be denied to the person who is the subject thereof. (Emphasis added.) While the personnel exemption is privacy based, protecting employees from the public disclosure of personal information, the exemption also recognizes the important need of the individual employee to access her own records. The use of the word "shall" indicates that while the agency has discretion to withhold personnel records when requested by the public, it must release personnel records to the subject thereof. The law does not leave room for discretion if the person who is the subject of the records makes the request.

Reading these two provisions together, it appears that even if the requested records were compiled specifically for use in an active administrative investigation, the portion of the records pertaining to an identifiable employee must be released to that employee upon request. In this case, the County was able to conduct an administrative investigation unhindered by the public release of records during the course of the investigation. However, once that investigation unearthed alleged misconduct that led to disciplinary action against you, you had the right to access the portion of the records that pertained specifically to you. If a third party asks for the same records, the County may be able to properly withhold them. 3 Likewise, if portions of the records related to you also include information about other identifiable employees, the County could properly redact out that information in response to your request, citing the personnel exemption, in order to protect the privacy of other employees.

In conclusion, it appears that you are entitled to receive at least some of the records that you requested. You would be entitled to the records relating to the text pages that you sent and received. However, if any of the requested records also contained information about other identifiable employees, the Department may, but is not required to, redact out the information pertaining to other individuals.

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

Sincerely,

Maria J.K. Everett
Executive Director

1 See 1983-84 Op. Atty. Gen. Va. 280. See also 1991 Op. Atty. Gen. Va. 9.

2 1993 Op. Atty. Gen. Va. 135. See also Prillman v. Commonwealth, 199 Va. 401, 405, 100 S.E. 2d 4, 7 (1957), 2001 Op. Atty. Gen. Va. 49.

3 The question posed to this office was whether you were entitled to receive a copy of those records that led to the disciplinary action, and not whether the general public was entitled to these records. Therefore, it was unnecessary to analyze whether the exemption at subdivision A 8 of § 2.2-3705 properly applies to these records generally, since the inquiry could be answered based on the application of the personnel exemption at subdivision A 4 of § 2.2-3705. This opinion cannot be interpreted to hold that the requested records were or were not records compiled specifically for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711; instead, this opinion is limited to this specific factual scenario in which an employee sought her own personnel records.