FOI Advisory Council Opinion AO-22-01

April 27, 2001

Mr. Patrick Kershaw

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-mails of March 21, 2001 and April 11, 2001.

Dear Mr. Kershaw:

You have asked two separate questions under the Virginia Freedom of Information Act (FOIA). First, you have asked for the Virginia Freedom of Information Advisory Council ("the Council") to investigate why the Fluvanna County government is not releasing certain requested information under the Virginia Freedom of Information Act (FOIA). Second, you ask about the application of the attorney-client privilege exemption of FOIA to a document that was distributed to a member of the public by one member of the Board of Supervisors. You allege that this distribution, without the authorization of the Board, negates the application of the exemption, and thus the document should be open to the public. This question was the subject of a previous opinion of the Council to you, dated January 31, 2001.[fn1]

Section 2.1-346.3 of the Code of Virginia grants the Council specific powers and duties. The Council has the authority to:

1. Furnish, upon request, advisory opinions or guidelines, and other appropriate information regarding the Freedom of Information Act (§ 2.1-340 et seq.) to any person or agency of state or local government, in an expeditious manner;

2. Conduct training seminars and educational programs for the members and staff of public bodies and other interested persons on the requirements of the Freedom of Information Act;

3. Publish educational materials as it deems appropriate on the provisions of the Freedom of Information Act;

4. Request from any agency of state or local government such assistance, services and information as will enable the Council to effectively carry out its responsibilities. Information provided to the Council by an agency of state or local government shall not be released to any other party unless authorized by such agency; and

5. Report annually on or before December 1 of each year on its activities and findings regarding the Freedom of Information Act, including recommendations for changes in the law, to the Governor and the General Assembly.

The Council may only perform those functions specifically delegated to it. As you can see from this list, the Council does not have the statutory authority to investigate an alleged FOIA violation.

In your email of March 21, 2001, you indicate that your local government is not releasing information that you believe is available under FOIA. You brought to our attention a FOIA lawsuit settled in another county. According to a newspaper article that you forwarded, the requestor involved in the lawsuit asked for "all correspondence, contracts, agendas, notes, minutes, resolutions, maps, plans, drawings, proposals and other records relating to" a sewage plant study. Under the settlement agreement, the requestor was allowed access to these documents. You assert that you have made a similar type of request in your own county but have been denied access to some of the relevant documents.

While I am not authorized to investigate your allegation of a FOIA violation, I suggest that you renew your request for the documents, bringing this recent FOIA lawsuit to the attention of the records custodian. If this approach does not produce the desired documents, and you still feel that your rights and privileges under FOIA have been violated, § 2.1-346 sets forth the remedy available to you under the law. To enforce your rights, you may file a petition of mandamus or injunction, supported by an affidavit showing good cause, addressed to the general district court of the court of record of the county or city from which the public body has been elected or appointed to serve and in which such rights and privileges were so denied.

In addition to your request for an investigation, in an e-mail dated April 11, 2001 you asked about the application of the attorney-client privilege exemption found at subdivision A. 7 of § 2.1-342.01. You had previously asked a question about the application of this exemption to a particular document, and I responded in an Advisory Opinion.[fn2] You argue that because one member of the Board released the document to an outside party, without the consent of the full Board, the privilege has been breached and the exemption no longer applies. I previously opined in response to your question that the document was subject to the attorney-client privilege, and as such the public body, or members thereof, have the discretion to decide how much or how little of the privileged information will be made available to the public. This opinion is not affected by the new information you now provide that indicates that one member of the Board decided to release the document to an outside party without the consent of the Board as a whole.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. Virginia Freedom of Information Advisory Opinion 8 (2001).

2. Id.