Attorney General's Opinion 1983-84 #447

VIRGINIA FREEDOM OF INFORMATION ACT. RECORDS IN HANDS OF GOVERNOR'S ADVISORY BOARDS EXEMPT FROM MANDATORY DISCLOSURE REQUIREMENTS OF ACT.

August 24, 1983

The Honorable Wayne F. Anderson
Secretary of Administration and Finance

83-84 447

This is in reply to your recent letter requesting an opinion regarding the application of the Virginia Freedom of Information Act, § 2.1-340 through § 2.1-346.1 of the Code of Virginia (the "Act"). You have asked the following:

"First, in developing the Governor's general fund revenue estimates, does the sharing of the Department of Taxation's staff estimates with the Governor's official review boards constitute a public disclosure under the Freedom of Information Act? And second, does the law require that the meetings of these advisory boards be open to the public?"

You have advised that after the Department of Taxation (the "Department") has prepared alternative general fund revenue estimates, the Department mails written materials containing alternative revenue estimates and supporting data to members of the Governor's Advisory Board of Economists and the Governor's Advisory Board on Revenue Estimates two weeks prior to their respective meetings. The Governor chairs these meetings.

Section 2.1-342(a) provides in pertinent part:

"Except as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records."

The alternative revenue estimates and supporting data would be deemed to be "official records" for the purposes of the Act.1 Because the Act requires that all official records shall be open to public inspection except as otherwise specifically provided by law, a determination must be made whether there are any specific exemptions either under the Act or elsewhere in the Code which apply to the records in question. Section 2.1-342(b)(4) provides:

"(b) The following records are excluded from the provisions of this Chapter:

* * *

4) Memoranda, working papers and correspondence held or requested by . . . the office of the Governor. . . ."

I am of the opinion that the documents requested, if in the possession of the Department of Taxation or the Office of the Secretary of Administration and Finance, can be categorized as memoranda, working papers and correspondence held or requested by the Office of the Governor, and as such, are excluded from the provisions of the Act.2 This exemption, however, does not apply to similar records held by others outside of the Office of the Governor.3 A determination must be made, therefore, whether the Governor's Advisory Board of Economists and the Governor's Advisory Board on Revenue Estimates are within the Office of the Governor.

The Governor's Advisory Board of Economists was created by Executive Order No. 16 (82). You have advised that the Governor's Advisory Board on Revenue Estimates has been in existence since the 1960's but is reconstituted annually by an invitation from the Governor. Both boards exist for the purpose of reviewing and evaluating the revenue estimates used by the Governor in preparing the Governor's Budget Bill. Accordingly, I am of the opinion that both advisory boards are deemed to be within the Office of the Governor and, therefore, the annual revenue estimates and supporting data distributed to board members two weeks prior to their respective meetings would not lose the exemption accorded by § 2.1-342(b)(4).

Your second question deals with whether the Act requires that meetings of these advisory boards be open to the public.

Section 2.1-341(a) and (e) define `public body ' to include, inter alia, "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth . . . and other organizations, corporations or agencies . . . supported wholly or principally by public funds." It is my opinion that the advisory boards would fall within such definition and, thus, be subject to the open meeting requirement of the Act. Section 2.1-343 provides that all meetings be public meetings unless a specific statutory exemption applies. I am unaware of any provision contained in the Act or elsewhere in the Code which would exempt the Governor's Advisory Board of Economists or the Governor's Advisory Board on Revenue Estimates from this provision or permit the boards to go into executive session to discuss revenue estimates or other matters which pertain to the general business outlook in Virginia. Accordingly, I am of the opinion that the meetings of these advisory boards must be public meetings pursuant to the Act.4

FOOTNOTES

1. See definition of "official records" contained in § 2.1-341(b).

2. See 1982-1983 Va. AG 724.

3. See 1982-1983 Va. AG, supra ; 1976-1977 Va. AG 315 and 317.

4. If the revenue estimates and supporting documents are discussed in open session and the essence of the documents is disclosed by the boards in open session, the documents lose the protection provided in the exemption of § 2.1-342(b)(4). See 1982-1983 Va. AG 729.