FOI Advisory Council Opinion AO-20-00

Mr. Wilson McIvor
Keswick, VA

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 29, 2000.

Dear Mr. McIvor:

You have asked about obtaining documents relating to the Commonwealth's new compensation plan under the Virginia Freedom of Information Act (FOIA). Your first question asks how to obtain information relating to the plan's development. Your second question involves an attempt to obtain an annual report of the Department of Human Resources, formerly the Department of Personnel and Training ("the Department"), relating to the compensation plan.

You state in your inquiry that you desire to discover the developers' intentions behind the development of the compensation program. The Commonwealth established a commission to study and develop a new plan. Such a commission would fall under the definition of a public body, set forth in § 2.1-341 of the Code of Virginia. As a result, documents prepared by and used by the commission would be public records, so long as they do not fall under a specific exemption in FOIA or their distribution otherwise prohibited by law. To obtain these documents, follow the procedures set forth in subsection B of § 2.1-342, which require you to identify the records you wish to request with reasonable specificity. After receiving your request, the public body will have five working days to make one of the responses mandated by that same provision.

You have also inquired about receiving a copy of an annual report created by the Department. The Department's final report on the compensation reform plan states that it will publish annual results that will, among other things, present statistical analyses and comparisons to market data for comparable positions in the private sector. You indicate that the Department has denied you access to such a document, claiming that the data is proprietary and copyright, and only available to human resources personnel.

Subsection A of § 2.1-342 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 during the regular office hours of the custodian of such records. In order to deny access to a public record, the record must fall under one of the enumerated exemptions found at subsection A of § 2.1-342.01. Subsection B of § 2.1-342 sets forth the procedures a custodian must follow if a record will be withheld. The refusal must be in writing, identify the subject matter of the withheld record, and cite the specific section of the Code of Virginia that authorizes the withholding. If a document contains both exempt and nonexempt information, the records custodian must delete or excise only the exempt portion of the record, and provide the nonexempt portion to the requester. The refusal to release a portion of the record must also be in writing, state the subject of the withheld portion, and cite the specific Code section that authorizes withholding that portion.

Upon analysis of FOIA, it does not appear that the Department's annual report would be the proper subject of any of the exemptions. There are no exemptions for copyright data, and the few exemptions allowing certain types of proprietary data to be withheld are quite specific, and would not apply to the type of document you indicate you are trying to seek. Thus, the annual report of the Department would be a public record accessible by the public.

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

Sincerely,

Maria J.K. Everett
Executive Director