Advisory Council

As a general principle for FOIA, an entity that receives at least two-thirds, or 66.6 percent, of its operating budget from government sources would be supported wholly or principally by public funds. However, the question of whether an entity is supported principally by public funds is a question of fact that must be decided on a case-by-case basis. Money received through competitive grants and from procurement transactions are more akin to public contracts negotiated between independent parties at arms' length than an appropriation of funds and are not to be considered public funds for purposes of determining whether an entity is a public body. A private entity does not become a public body solely because the private entity provides goods or services to a public body through a procurement transaction. Conversely, money provided through government donations to support a private organization, corporation, or agency without the provision of goods or services in return is considered differently under FOIA. Noncompetitive grants are more akin to appropriations or an exercise of governmental largesse which may be considered public funds for FOIA purposes. The FOIA Council is not a fact-finding body or trier of fact.
 

FOIA policy provides that all public records are presumed open for inspection or copying, unless an exemption is properly invoked. There is a fundamental duty in FOIA for a public body to collaborate with a requester in the production of the records requested. FOIA does not prohibit or restrict access rights under the attorney-client or principal-agent relationships. Virginia law recognizes the legitimacy of legal representation and the principal-agent relationship and such associations do not conflict or contradict with the provisions of FOIA.
 

Any response by a public body to a FOIA request for public records shall comply with the provisions of subsection B of § 2.2-3704 of the Code of Virginia. The working papers exemption in subdivision 2 of § 2.2-3705.7 of the Code of Virginia was designed to provide a zone of privacy for the deliberative process of the designated officials. Any record labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party. If a record has already been disclosed publicly, then the working papers exemption does not apply and the records must be released, if requested. The exclusion for correspondence in subdivision 2 of § 2.2-3705.7 of the Code of Virginia applies to all written communications such as letters, emails and text messages sent or received by the designated officials. Pursuant to Lawrence v. Jenkins (Va. 1999), a technical violation of FOIA procedure does not change the fact that the records are exempt if a valid exemption applies. FOIA access rights are generally equal for all citizens with no individual having greater access rights to public records than another individual unless otherwise provided by law. FOIA provides that there is a fundamental duty for a public body to collaborate with a requester in production of the records requested. Any search for records made under FOIA must be carried out in a good faith effort by a public body's officers and employees.
 

FOIA affirmatively requires that "records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body" be made available to the public. However, while the Virginia personnel information exemption requires the release of "official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body," it does not explicitly require the release of bonus or overtime pay. Nevertheless, this office generally recommends releasing all information on overtime pay, bonuses, or other compensation. Additionally, persuasive authority from other jurisdictions makes it appear likely that such information might not meet the Hawkins test as information that would constitute an unwarranted invasion of personal privacy were it to be released. For those reasons, this office encourages such disclosures as a matter of best practice even though these disclosures are not explicitly required by statute.

FOIA does not require a public body to charge a requester at all, but if charges are assessed, FOIA provides that a public body may only do so within the stated limitations. A public body may assess charges for the production of requested records which includes the hourly rate of pay for the staff that researched and responded to the request and cost of copies. Charges must be limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records. FOIA requires that a public body make all reasonable efforts to supply the requested records at the lowest possible cost. Fees for fringe benefits are a general cost associated with transacting the general business of the public body. Any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body is not allowed under FOIA. There is the expectation of a "good faith" effort by public officials, employees, and staff members to conduct a search for records in responding to FOIA requests. FOIA does not require any public body's officials, employees, or staff members to recuse themselves from a records request. It is the responsibility of these officials, employees, and staff members trained in the requirements and provisions of FOIA to understand how to respond to requests in accordance with the law on behalf of the public bodies they serve.
 

The exemption for a closed meeting relating to discussion of actual or probable litigation does not require that legal counsel be present at the discussion. Briefings pertaining to actual or probable litigation may be performed by staff members or consultants. Conversely, the exemption for a closed meeting pertaining to consultation with legal counsel employed or retained by a public body regarding specific legal matters does require that legal counsel be present accordingly. Public notice of a special, emergency, or continued meeting must be reasonable under the circumstances and shall be given contemporaneously with the notice being provided to the members of the public body conducting the meeting.

Discusses the circumstances under which a pro se petitioner becomes eligible to obtain reimbursement of attorney fees after hiring an attorney to represent the petitioner in a FOIA matter or during the appeal process. A court would have to determine that a petitioner's rights and privileges were denied in violation of law, that the petitioner had substantially prevailed on the merits of his case, and that there were no special circumstances that would make the awarding of attorney fees and costs unjust. The court would have to determine the amount of attorney fees and costs that were incurred by a petitioner in the litigation proceedings and award a reimbursement amount
 

Upon a receipt of a request, a public body must respond in accordance with the established provisions and timeframes in subsection B of § 2.2-3704. If part of the requested records are being withheld from release, a public body 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. Considering the policy of FOIA and the legal duties it imposes, there is a presumption of good faith that a custodian of records will obey the law in carrying out their duties by searching for and providing all records as requested unless the records are exempt or prohibited from release. FOIA is intended to be a non-adversarial process for obtaining information.

A Governor-elect's transition teams generally would not be public bodies subject to FOIA unless they are supported wholly or principally by public funds. Transition team records might be public records subject to FOIA (i) if the transition team is a public body because it is supported by public funds or (ii) if transition team records are possessed by another public body in the transaction of public business. Applying FOIA's narrow construction rule for exemptions, the working papers and correspondence exemption, subdivision 2 of § 2.2-3705.7, may only be used by those listed in the exemption itself. While the "Office of the Governor" is listed in the exemption, "Governor-elect" is not and therefore, a Governor-elect may not use the working papers and correspondence exemption.