FOI Advisory Council Opinion AO-03-20
AO-03-20
September 11, 2020
Barbara Petersen
Via Email
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 electronic mail messages from April 2020 through June 2020.
Dear Ms. Petersen:
You have asked whether the denial of your request to the Virginia Racing Commission (the Commission) for certain license applications and supporting documentation violated the Virginia Freedom of Information Act (FOIA). As background, you stated that you requested a number of license applications and supporting documentation submitted to the Commission by the Colonial Downs Group (the Group) in December 2019, the applications for renewal submitted in 2020, and a copy of a revenue sharing agreement between the Group and two other organizations. You indicated that in reply the Commission attached a copy of the requested revenue sharing agreement but denied your request for the applications and supporting documents, citing the exemption for information relating to investigations of applicants and permits submitted to the Commission, subdivision 1 of § 2.2-3705.3 of the Code of Virginia. That exemption excludes from mandatory disclosure "[i]nformation relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to ... the Virginia Racing Commission [and certain other public bodies]." You stated that it appears to you that the exemption specifically applies to records related to the investigation of an applicant, but not the application or the supporting documents submitted with the application, because an application triggers an investigation and therefore the application is not part of the investigative record—i.e., the investigation does not begin until after the application is received.
You initially asked for an informal opinion that posed two questions: first, whether subdivision 1 of § 2.2-3705.3 includes "the application and supporting documentation, thus precluding disclosure of those documents," and second, whether "the investigative record, including the application and supporting documentation, [is] subject to disclosure under Virginia law once the investigation is complete." You followed that inquiry with a request for a formal opinion regarding the use of this exemption and how the Council and state courts have interpreted it, particularly the phrase "related to." In asking for the formal opinion, you stated that, if these records "are exempt during the investigation and remain exempt after the investigation is complete and the license awarded," it amounts to "a total blanket of secrecy, precluding any opportunity for public oversight and government accountability." You also expressed your opinion that "[g]iven the controversial nature of gambling and the recent expansion of legal gambling in Virginia, [you] think it critically important to have a full grasp of the secrecy afforded to gambling license applicants." While noting your concerns, this office can only interpret the law as enacted by the General Assembly; it is up to the legislature to decide such matters of public policy.
In researching the issues presented, it appears that interpretation of subdivision 1 of § 2.2-3705.3 is a novel question as there do not appear to be any prior court decisions or advisory opinions from this office or the Office of the Attorney General concerning that exemption. Therefore, we turn to the policy of FOIA and rules of statutory construction to guide this analysis. The policy of FOIA expressed in subsection B of § 2.2-3700 is to ensure
the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees ... Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
The provisions of [FOIA] shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records ... shall be narrowly construed and no record shall be withheld ... unless specifically made exempt pursuant to this chapter or other specific provision of law.
Consistent with this policy, subsection A of § 2.2-3704 provides that "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth [and certain media representatives]." As recently stated by the Supreme Court of Virginia, "[i]n construing statutory language, we are bound by the plain meaning of clear and unambiguous language."1 In expressing the same concept, the Court has previously stated:
While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.2
Additionally, the Court has stated that "when ... a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the ... language used. When the legislature leaves a term undefined, courts must give [the term] its ordinary meaning, [taking into account] the context in which it is used."3
As a threshold matter, note that it is clear that the Commission is a public body subject to FOIA and that the application for licensure and supporting documentation you seek are public records that, following the policy and procedure provisions of FOIA, must be disclosed unless a specific exemption allows them to be withheld. The definition of "public body" in § 2.2-3701 includes, among other entities, "any ... commission ... of the Commonwealth." The Commission is a commission of the Commonwealth created pursuant to § 59.1-366 and therefore is a public body subject to FOIA. The definition of "public records" in § 2.2-3701 includes all types of records "prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." The Commission has statutory authority over horse racing licenses and permits under Articles 2 and 3 of Chapter 29 of Title 59.1 of the Code of Virginia, so the records you sought clearly fall within the transaction of the public business of the Commission. Therefore, the records you seek are public records of the Commission subject to FOIA.
Reexamining your original inquiries, you asked whether subdivision 1 of § 2.2-3705.3 includes the application and supporting documentation and, if those records are exempt during the investigation, whether they remain exempt once the investigation is complete and the license has been issued. Turning to the statutory language, "[i]nformation relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to [the Commission]" is exempt from mandatory disclosure. The term "information" as used in the exemptions of §§ 2.2-3705.1 through 2.2-3705.7 is defined in § 2.2-3701 to mean "the content within a public record that references a specifically identified subject matter, and shall not be interpreted to require the production of information that is not embodied in a public record." Therefore, we must consider whether the application and supporting documents reference the identified subject matter of the exemption or, in other words, whether they are "relating to investigations of applicants for licenses and permits, and of all licensees and permittees." The phrase "relating to" is not defined by statute, and therefore, following the rules of statutory construction, we use its ordinary meaning. Dictionary.com provides the following relevant definitions of the term relate:
to bring into or establish association, connection, or relation:
to relate events to probable causes.
to have reference (often followed by to).
to have some relation (often followed by to).4
Some similar relevant definitions from Merriam-Webster include the following:
: to show or establish logical or causal connection between
seeks to relate crime to poverty
: to have relationship or connection
the readings relate to his lectures
: to have or establish a relationship : interact
the way a child relates to a teacher5
In your original inquiry to this office, you stated that "an application triggers an investigation and therefore the application is not part of the investigative record. An investigation occurs after an application is submitted." [Emphasis in original.] It is my general understanding that you would be correct that receipt of an application for a license or permit is an event that triggers an investigation so that the Commission can determine whether it will issue a license or permit. As a consequence, the fact that the application triggers the investigation establishes that there is a relation, association, or causal connection between the application and the investigation. In other words, accepting your statement as true establishes that the application and supporting materials submitted by the applicant are information "relating to investigations of applicants for licenses and permits, and of all licensees and permittees." Additionally, consider that the exemption contemplates "information ... made by or submitted to [the Commission]," which would appear on its face to include information submitted to the Commission by the applicant or others, as well as information created by the Commission in the course of an investigation. Therefore, following the rules of statutory interpretation quoted above, the application and supporting documents submitted to the Commission are exempt pursuant to the plain language of subdivision 1 of § 2.2-3705.3.
Next, please note that the exemption does not depend on the order of events, so the fact that an investigation is not initiated until after an application is received is not determinative of whether the exemption applies to the application and supporting materials. As stated above, the proper question is framed by the terms of the exemption itself, i.e. whether the application and supporting materials are "relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to [the Commission]." To read this language to exclude the application itself based on the order of events would be to read into the statute words that simply are not there. Similarly, in turning to whether the exemption ceases to apply once an investigation is complete or after a license or permit is issued, there is nothing in the statutory language that states that the exemption may no longer be used after such an event. Note that subdivisions 2, 3, 4, 9, 11, and 13 of the same section refer to "active" investigations, but subdivision 1 does not. Similarly, subdivisions 3 and 5 of the same section refer to "inactive reports," subdivision 12 refers to "an investigation that has been inactive for more than six months," and subdivisions 7 and 11 refer to "completed investigations," but subdivision 1 does not use any similar language. These examples demonstrate that if the General Assembly wishes to limit the application of an investigative exemption to active investigations, or trigger release of records when a report is inactive or complete, it can and will do so. As subdivision 1 of § 2.2-3705.3 does not use any such language, we cannot interpret it to be so limited. Therefore, a public body may continue to use subdivision 1 of § 2.2-3705.3 even after an investigation is complete and even if a license or permit has been issued. However, noting that, like most FOIA exemptions, subdivision 1 of § 2.2-3705.3 exempts certain records from mandatory disclosure but still allows them to be disclosed in the discretion of the custodian, the fact that an investigation has been completed is something that a custodian may wish to take into consideration in deciding whether to release records even though they may remain exempt.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
1. Cole v. Smyth Co. Bd. of Supervisors, (Va. Record No. 171205, decided May 28, 2020, available at 2020 Va. LEXIS 56) (citation omitted).
2. Transparent GMU v. George Mason University, 298 Va. 222, 240-241, 835 S.E.2d 544, 553 (Va. 2019) (citation omitted).
3. American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 341, 756 S.E.2d 435, 441 (Va. 2014).
4. https://www.dictionary.com/browse/relate
5. https://www.merriam-webster.com/dictionary/relate
