AO-08-26
June 29, 2026
Bradley Parkzes
Via Electronic Mail
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 email of September 20, 2025, and its attachment.
Dear Mr. Parkzes:
You have asked several questions regarding a records request you made under the Virginia Freedom of Information Act (FOIA) to the Virginia Department of Transportation (VDOT) and VDOT’s response. As background, you shared that you are a VDOT employee and that certain allegations were made against you, that Ms. Leslie Martin interviewed you concerning these allegations in June 2024, and that you subsequently requested certain records from VDOT. You summarized your request as asking for three types of records:
1. The complete investigative report prepared by Ms. Leslie Martin regarding a false sexual harassment allegation raised against [you].
2. Any written statements provided by Lauren Mollerup, Steve Shannon, Afsaneh Mirpour, and Todd Robson during that investigation.
3. Any communications or report back and forth from Ms. Martin to Central Office HR or Civil Rights leadership regarding her findings.
You stated that VDOT’s response to item 1 was to state that there is no such investigative report, but VDOT “produced a written summary authorized by Ms. Leslie Martin titled ‘Rumor regarding Mr. Parkzes sexually harrasing [sic] another employee’ in response to Item #3.” You indicated that this written summary appears in substance to be an investigative report, and therefore, you believe the response saying no such report exists is inconsistent with the existence of this summary. In response to item 2, you stated VDOT withheld a written statement authored by Ms. Mollerup pursuant to an exemption for certain records concerning individual employment discrimination complaints in subdivision 3 of § 2.2-3705.3 of the Code of Virginia. You indicated that VDOT did not provide, deny, or state whether there were any written statements authored by the other three named individuals in item 2. You stated that the written summary by Ms. Martin was produced in redacted form in response to item 3, again citing the exemption in subdivision 3 of § 2.2-3705.3 of the Code of Virginia. Additionally, you stated that you “requested the nativa electronic version (e.g., Word files) of Ms. Martin’s summary with metadata intact (creation date, last modified, author)” [bold emphasis in original] but in response “VDOT has not addressed that request.” You also provided an attachment that included a series of emails between you and VDOT showing your request, VDOT’s response, and the various communications that followed dating from August 22, 2025, through September 18, 2025. Additional background facts will be set forth below as needed. Against this background, you have asked for an advisory opinion on four questions, each of which will be addressed in turn below.
Question 1: Whether VDOT may properly treat item 1 as a nonexistent record while producing a substantive summary response to item 3?
As stated above, your first requested item was “[t]he complete investigative report prepared by Ms. Leslie Martin regarding a false sexual harassment allegation raised against [you].” Your third requested item was for “[a]ny communications or report back and forth from Ms. Martin to Central Office HR or Civil Rights leadership regarding her findings.” You stated that VDOT’s response to the first requested item said that there was no such completed investigative report, but the response to the third requested item was to provide a redacted version of a written summary of the matter authored by Ms. Martin. You stated your concern that these responses appear to be inconsistent because the written summary appears in substance to be a completed investigative report. The email from VDOT dated September 18, 2025, states that “there is no investigative report as specifically requested in item #1” but that “VDOT did produce a summary report which was responsive to item #3.” An earlier email from VDOT dated September 11, 2025, states “that VDOT does not have any documents responsive to item 1 because there is no investigation report that was prepared and therefore, we do not have any record to release.” The same email also states that “VDOT is providing records responsive to item 3” and that those records were redacted pursuant to the employment discrimination complaint exemption in subdivision 3 of § 2.2-3705.3 of the Code of Virginia. That exemption reads in full as follows:
§ 2.2-3705.3. Exclusions to application of chapter; records relating to administrative investigations.
The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with § 2.2-3704.01.***
3. Investigator notes, and other correspondence and information, furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management, to such personnel of any local public body, including local school boards, as are responsible for conducting such investigations in confidence, or to any public institution of higher education. However, nothing in this subdivision shall prevent the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons supplying the information, or other individuals involved in the investigation.
Reading your request and VDOT’s responses together, it appears that VDOT draws a distinction between what constitutes a “complete investigative report” and what constitutes a “summary report.” The language used in the exemption itself refers instead to “inactive reports,” without defining the term. In the absence of a statutory definition, the well-established rule of statutory construction directs us to use the ordinary meaning of a term in the context of the legislation.1 The Merriam-Webster online dictionary provides a relevant definition for the term “report” as “a usually detailed account or statement.”2 Dictionary.com provides 10 different definitions of “report,” the first of which is “an account or statement describing in detail an event, situation, or the like, usually as the result of observation, inquiry, etc.”3 The same sources define “summary” as “an abstract, abridgment, or compendium especially of a preceding discourse”4 and “a comprehensive and usually brief abstract, recapitulation, or compendium of previously stated facts or statements.”5 Reading these definitions together, it does appear that there would be a difference between a “report” and a “summary report” in that a “report” would be more detailed than a “summary report.” Therefore, there appears to be some colorable basis for VDOT’s assertion that there is no “report” in response to your first requested item, while at the same time providing a “summary report” in response to your third requested item. However, in the context of your requests and VDOT’s responses viewed as a whole, it appears to be a moot issue because, in the end, you were provided with a redacted version of the summary report and VDOT stated that it was the only record that existed in response to requested items 1 and 3. Whether the summary report is responsive solely to item 1, solely to item 3, or to both items, does not change the outcome.
Question 2: Whether VDOT may withhold in full written statements about the subject of an allegation, or whether narrower redaction or segregation is required?
Generally, FOIA only allows public records to be withheld in full if the entire record is exempt or prohibited from release. This concept was codified in § 2.2-3704.01 of the Code of Virginia in 2016:
No provision of this chapter is intended, nor shall it be construed or applied, to authorize a public body to withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure by this chapter or by any other provision of law. A public record may be withheld from disclosure in its entirety only to the extent that an exclusion from disclosure under this chapter or other provision of law applies to the entire content of the public record. Otherwise, only those portions of the public record containing information subject to an exclusion under this chapter or other provision of law may be withheld, and all portions of the public record that are not so excluded shall be disclosed.6
In the context of your request, it appears in your email dated August 25, 2025, that you requested from VDOT “[a]ny written statement(s) provided by Lauren Mollerup as part of Leslie Martin’s investigation.” [bold emphasis in original] In its reply email dated September 11, 2025, VDOT responded to this aspect of your request by stating that VDOT was withholding one document in its entirety pursuant to the employment discrimination exemption in subdivision 3 of § 2.2-3705.3 of the Code of Virginia. In your reply email dated September 12, 2025, you wrote as follows regarding this request and response: “It is clear from the record that written statements were provided by Ms. Lauren Mollerup, Mr. Steve Shannon, Ms. Afsaneh Mirpour, and Mr. Todd Robson between June 6 and June 10, 2024. Withholding these statements in full under [§] 2.2-3705.3 [subdivision] (3) is inappropriate.” The email reply from VDOT dated September 18, 2025, stated in response that:
you asked VDOT to reconsider the exemption for records responsive to item #2 of your request, which specified written statements from Lauren Mollerup. As previously advised, this document contains information relating to investigator notes and other correspondence exempt pursuant to section 2.2-3705.3 [subdivision] (3) of the Code of Virginia. This document is not being released.
In your email to this office, you expressed that VDOT had withheld one document but VDOT had not confirmed whether written statements from the other three individuals exist or had been withheld. This exchange between you and VDOT demonstrates the importance of clear communications in making and responding to FOIA requests. Your email dated August 25, 2025, requested any written statement(s) from one named individual, but it did not name the other three individuals you later identified in your email dated September 12, 2025. In that email, you stated that “access to these statements is necessary to understand what was said about me in a matter that directly impacted my reputation and career.” While you identified the importance of those statements, and therefore implied that you wanted copies of them, your email did not explicitly request a copy of those statements. The subsequent response from VDOT dated September 18, 2025, only responded to the original request for any written statement(s) from one named person. It did not address any other written statements, presumably because VDOT did not recognize your September 12, 2025, email as a request for those statements. Among other things, the policy of FOIA expressed in subsection B of § 2.2-3700 of the Code of Virginia provides that “[a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.” Unfortunately, in this instance, it appears that there was simply a misunderstanding as to the scope of your request, despite the series of communications between you and VDOT. For that reason, we cannot say that VDOT is in violation of FOIA for not providing records that you did not explicitly request, although we would have hoped that further communications would have clarified the scope of your intended request.
Regarding the record that was entirely withheld, unfortunately, this office cannot offer any opinion on whether that withholding was in compliance with FOIA and the terms of the cited exemption since we cannot view the original in unredacted form. Only a court would have the authority to order VDOT to produce the original record for in camera review in order to determine whether it was entirely exempt and therefore properly withheld in its entirety.
Question 3: Whether VDOT’s redaction of item 3 complies with FOIA’s segregation and disclosure requirements?
You expressed your concerns that the redactions to the written statement that VDOT provided were overly broad in withholding “portions that appear to identify who in Central Office was advised and what was communicated.” As stated above, FOIA does require that records be redacted and only the exempt portions be withheld unless the entire record is exempt or prohibited from release. In your attachments, you did provide the redacted record that VDOT provided to you in response to your requested item 3. In context, it appears that the redactions most likely consist of names and, possibly, job titles, which appears to comport with the last sentence of the cited exemption in subdivision 3 of § 2.2-3705.3 of the Code of Virginia: “However, nothing in this subdivision shall prevent the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons supplying the information, or other individuals involved in the investigation.” However, as also stated above, because this office cannot see the original document in unredacted form, we cannot state with certainty whether the redactions comport with the terms of the exemption or not.
As an additional related matter, note that the policy of FOIA expressed in subsection B of § 2.2-3700 of the Code of Virginia provides that “[a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.” In this instance, the exemption in question, subdivision 3 of § 2.2-3705.3 of the Code of Virginia, provides a discretionary exemption for the following:
Investigator notes, and other correspondence and information, furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management, to such personnel of any local public body, including local school boards, as are responsible for conducting such investigations in confidence, or to any public institution of higher education.
When an exemption is written with multiple elements as this one is written, all of the necessary elements must be met in order for the exemption to apply. For example, in analyzing the use of this exemption, a circuit court found that it did not apply when the public body relying upon it failed to demonstrate that the records withheld were “furnished in confidence.”7 While the facts provided are somewhat incomplete by necessity due to the redactions involved, it appears that you were looking for records communicated with VDOT’s Central Office and human resources staff. What is not clear is whether there was ever an individual employment discrimination complaint “made to the Department of Human Resource Management” as required by the exemption. Note that for local public bodies and school boards, the exemption accounts for employment discrimination complaints made to persons who “are responsible for conducting such investigations in confidence,” but there is no such equivalent for state public bodies such as VDOT. At the state level, this exemption only applies to certain records of “an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management … or to any public institution of higher education.” Because of the narrow construction rule, this exemption cannot be used by other state agencies unless an appropriate complaint has been made to the Department of Human Resource Management. It is unclear whether that was the case in this instance, so it is unclear whether this exemption would apply.
Furthermore, research did not reveal any controlling precedent on this exemption from the Supreme Court of Virginia or the Court of Appeals of Virginia. As previously stated, the one circuit court case directly on point held that the exemption did not apply because not all of the required elements were met. After considering that the personnel information exemption in subdivision 1 of § 2.2-3705.1 of the Code of Virginia provides that access to personnel information “shall not be denied to the person who is the subject thereof,” the circuit court also concluded in dicta that “[e]ven had such an element been proven, however … [the petitioner who was the subject of the employment discrimination allegation] would be entitled to all information in the final … report but not the investigatory materials giving rise to it.”8 While this may be persuasive rather than controlling precedent, we cannot ignore that it would support an argument that, as the subject, you might be entitled to an unredacted copy of the written summary if that written summary is also considered “personnel information.”
However, two points counteract this argument: (i) VDOT explicitly stated in its communications that it was not relying on the personnel information exemption, implying that VDOT does not consider the records in question personnel records, and (ii) subsequent statutory changes as interpreted by the Supreme Court of Virginia regarding what constitutes “personnel information” and whether it should be private. In its 2005 decision, the circuit court in question determined that “all information gathered about an employee’s employment in a permanent form constitutes a personnel record” and applied that definition to conclude that a report regarding employment discrimination should be provided to the subject thereof as a personnel record. However, in comprehensive legislation amending FOIA in 2016, the exemption was recodified as the “personnel information” exemption.9 In the case Hawkins v. Town of South Hill (2022), the Supreme Court of Virginia weighed in to establish a definition and privacy test for what constitutes “personnel information.”10 The Supreme Court defined “personnel information” to mean “data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.”11 The Supreme Court held “that data, facts, and statements are private if their disclosure would constitute an ‘unwarranted invasion of personal privacy’ to a reasonable person under the circumstances.”12 The Supreme Court further expounded that “the ‘precise contours’ of what content qualifies as private are ‘neither rigid nor precise’ and require determination in the context of each case.”13 Following this holding, whether any particular record contains exempt personnel information must be determined on a case-by-case basis by applying the definition and test set out in Hawkins. As this is controlling precedent under current law, it would argue against the 2005 circuit court precedent that used a different definition under prior law. Ultimately, only a court could render a binding decision on whether the summary report at issue was properly redacted pursuant to the employment discrimination complaint exemption or should have been provided in unredacted form on the basis that the redactions constituted “personnel information” to which you are entitled as the subject.
Question 4: Whether VDOT must produce electronic records in their native format with metadata intact if that is the format in which records are maintained?
Presuming the records were in electronic form, subsection G of § 2.2-3704 of the Code of Virginia provides in relevant part as follows:
Public bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester, including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body shall be required to produce records from an electronic database in a format not regularly used by the public body. However, the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs. The excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation, or compilation of a new public record.
Therefore, yes, you would be entitled to any public records that are not exempt or prohibited from disclosure in their native format or in any other format regularly used by the public body. If that format includes metadata, then presumably it would be included as well, unless for some reason it was exempt.
Other Issues
You also requested that this office advise VDOT to provide a Vaughn-style index (or equivalent) that identifies each withheld or redacted document, the specific statutory basis for each withholding, and whether any non-exempt material can be reasonably segregated and disclosed. While a public body may at times be well-served by producing a Vaughn-style index, and a court may order a public body to produce such an index in litigation,14 it is not a required element when withholding records under FOIA. When withholding records in whole or in part, subdivisions B 1 and 2 of § 2.2-3704 of the Code of Virginia require the public body to respond in writing as follows:
1. The requested records are being entirely withheld. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
2. The requested records are being provided in part and are being withheld in part. Such response shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
By their own terms, these provisions do not require the production of a Vaughn-style index. Note also that both subdivisions require that the public body “cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.” Following that language, a public body may cite exemptions categorically rather than identify a specific exemption for every individual withholding or redaction. While identification of specific exemptions corresponding to specific redactions may be helpful and a public body may choose voluntarily to make such identification, it is not required by statute. On your third point, as stated previously, § 2.2-3704.01 of the Code of Virginia imposes a duty to redact, and so you are correct that VDOT must produce non-exempt records or portions thereof and may only withhold records or portions thereof when they are exempt or prohibited from release.
Thank you for contacting this office. I hope I have been of assistance.
Sincerely,
Alan Gernhardt, Esq.
Executive Director
1See, e.g., Freedom of Information Advisory Opinions 07 (2024), 09 (2019), 04 (2014), 12 (2004) (all citing various cases from the Supreme Court of Virginia).
2https://www.merriam-webster.com/dictionary/report
3https://www.dictionary.com/browse/report
4https://www.merriam-webster.com/dictionary/summary
5https://www.dictionary.com/browse/summary
62016 Acts of Assembly, cc. 620 and 716.
7See McChrystal v. Fairfax Co. Bd. of Supervisors, 67 Va. Cir. 171 (Circuit Court of Fairfax County, 2005).
8Id., 67 Va. Cir. at 183.
92016 Acts of Assembly, cc. 620 and 716.
10301 Va. 416, 878 S.E.2d 408.
11Id., 301 Va. at 432, 878 S.E.2d at 416.
12Id. (internal quotations and citations omitted)
13Id.
14See Citizens for Fauquier County v. Town of Warrenton, 81 Va. App. 363, 904 S.E.2d 213 (Va. Ct. App. 2024).