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<!DOCTYPE html>
<html lang="en-us">
<head>
<meta charset="utf-8" />
<title>Open Records</title>
<meta name="viewport" content="width=device-width; initial-scale=1.0; maximum-scale=1.0;" />
<link type="text/css" rel="stylesheet" href="style.css" />
</head>
<body>
<div class="content">
<header role="banner"><h1>Open Government Guide <b class="">Virginia</b></h1></header>
<div class="main" role="main">
<article role="article">
<section role="region">
<h1></h1>
<h2>Prepared by:</h2>
<ul>
<li>Craig T. Merritt, Esquire</li>
<li>David B. Lacy, Esquire</li>
<li>Christian & Barton, L.L.P.</li>
<li>909 East Main Street</li>
<li>Suite 1200</li>
<li>Richmond, Virginia 23219-3095</li>
</ul>
<h2 id="foreword">Foreword</h2>
<p>The Virginia general assembly enacted the Freedom of information act (“the act”) in 1968. Through this act, the legislature sought to secure to the Commonwealth’s citizens access to public records and meetings not specifically exempted by law.</p>
<p>The act has undergone numerous revisions. Some amendments have strengthened the act by authorizing the award of civil penalties and attorneys’ fees for non-compliance, or by shifting the burden to prove the applicability of exclusions onto the public body. Other amendments, particularly the act’s steadily growing list of discretionary exclusions have narrowed its effectiveness. Finally, some amendents, particularly those relating to electronic meetings and records, have responded to technological changes in the way that information is recorded, processed and delivered.</p>
<p>The general assembly has mandated that the act 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.” Moreover, the act’s exemptions are to “be narrowly construed in order that no thing which should be public may be hidden from any person.”</p>
<p>These rules of construction are consistently acknowledged by the courts, but not always applied with full vigor. Virginia courts often appear reluctant to provide a remedy under the act unless there is a substantial and willful violation of its provisions. However, where such evidence exists, the courts have shown their willingness to penalize those who attempt to deny to the public that which they have a right to know.</p>
<p>Opinions of the attorney general of Virginia do not bind the Virginia courts, but are persuasive authority. They are occasionally, but not comprehensively, cited in this outline because they are frequently relied upon by public bodies subject to the act. in addition, a growing body of opinions has been issued by the Virginia Freedom of information advisory Council, created by the general assembly in 2000, to act as a source of both formal and informal advice for citizens, including public officials and press representatives. To date, the opinions of the Council, which are not binding on the courts, have shown a tendency toward the “middle of the road” rather than an aggressive proaccess bias. They are available online, and are not cited in this outline. However, anyone researching an issue under the act is well-served to search both attorney general and advisory Council opinions for relevant discussion of these statutes.</p>
<h2 id="open-records">Open records</h2>
<ol>
<li>i. STATUTE -- BASIC APPLICATION
<ol class="sub-ol">
<li>A. Who can request records?
<ol class="sub-sub-ol">
<li>1. Status of requestor.
<ol class="sub-sub-sub-ol">
<li>a. Citizens of the Commonwealth: any citizen of the Commonwealth may inspect records during the regular business hours of the custodian of records. A citizen is defined elsewhere in the Code of Virginia as one born in the Commonwealth who has not in good faith become a citizen of another state or one born in another state of this Union or an alien naturalized under the laws of the United States who may be or become a resident of the Commonwealth. Previously found in Va. Code ann. § § 1-18 and 1-20 (repealed). nothing in the Freedom of information act (“the act”) prohibits a citizen from making a request on behalf of a non-citizen, as the requester is not required to explain or otherwise justify the request. The custodian may require the requester to provide his name and legal address. Va. Code ann. § 2.2-3704(a).</li>
<li>b. Media: The act specifically grants rights to representatives of newspapers and magazines with circulation in the Commonwealth and to representatives of television and radio stations broadcasting in or into the Commonwealth. Va. Code ann. § 2.2-3704(a).</li>
</ol>
</li>
<li>2. Purpose of request.
<ol class="sub-sub-sub-ol">
<li>a. Purpose and Motivation: The purpose or motivation behind a request is irrelevant to a citizen’s entitlement to requested information. See Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E.2d 625 (1988).</li>
<li>b. Reasonable Specificity Required: The act provides that the request shall designate the requested documents with reasonable specificity. Va. Code ann. § 2.2-3704(B).</li>
</ol>
</li>
<li>3. Use of records.
<ol class="sub-sub-sub-ol">
<li>a. No Restriction on Use: The act does not restrict the use of the information obtained.</li>
<li>b. Commercial Purposes: a request under the act is not automatically invalid because it was made for a purpose other than to monitor government operations. it is permissible for a citizen to secure information under the act for commercial purposes. See Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E.2d 625 (1988).</li>
</ol>
</li>
</ol>
</li>
<li>B. Whose records are and are not subject to the act?
<p>The act applies to public bodies, defined to include all government entities such as elected bodies, agencies, authorities, boards, bureaus, commissions, councils, districts or other public bodies at any level of state, regional, county or municipal government. Constitutional officers are considered public bodies and, generally, have the same obligations to disclose public records as other custodians of public records. Va. Code ann. § 2.2-3701. Corporations organized by the Virginia Retirement System are “public bodies” for the purposes of this chapter. Va. Code ann. § 2.2-3701.</p>
<ol class="sub-sub-ol">
<li>1. Executive Branch.
<ol class="sub-sub-sub-ol">
<li>a. records of the executives themselves. Working papers and correspondence prepared by or for the following are exempted from disclosure: Office of the governor, Lieutenant governor and attorney general; the mayor or other chief executive office of any political subdivision of the Commonwealth; and the president or chief executive officer of any public institution of higher education. See Va. Code ann. § 2.2-3705.7(2); see also Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991)(holding that an itemized list of long distance calls placed by the governor’s office falls within the working papers exemption). no record that is otherwise open to inspection shall be deemed exempt by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Va. Code ann. § 2.2-3705.7(2).</li>
<li>b. records of certain but not all functions. “Working papers” are defined functionally as records prepared by or for a public official for his personal or deliberative use. Va. Code ann. § 2.2-3705.7(2).</li>
</ol>
</li>
<li>2. Legislative Bodies.
<p>Working papers and correspondence prepared by or for members of the general assembly or the Division of Legislative Services are exempted from disclosure. Va. Code ann. § 2.2-3705.7(2).</p></li>
<li>3. Courts.
<p>Petit juries and grand juries are specifically excluded from coverage under the act. Va. Code ann. § 2.2-3703(a)(2). access to judicial records and proceedings is governed by other Virginia statutes and by case law. See, e.g., Va. Code ann. § 17.1-208.</p>
<p>Reports and court documents concerning involuntary admissions that are required to be kept confidential pursuant to Va. Code ann. § 37.2-818 are excluded. Va. Code ann.§ 2.2-3705.5(6).</p></li>
<li>4. Nongovernmental Bodies.
<ol class="sub-sub-sub-ol">
<li>a. Bodies receiving public funds or benefits.
<p>The act defines “public body” to include “organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.” Va. Code ann. § 2.2-3701. Whether an entity is supported “principally” by public funds is a question of fact. Wigand v. Wilkes, 65 Va. Cir. 437, 438 (Norfolk Cir. Ct. 2004). Nongovernmental organizations, corporations and agencies that are not supported principally by public funds are not “public bodies” under the act, and, thus are not subject to its disclosure requirements. 1995 Va. Op. Atty gen. 4 (January 9, 1995)(The general assembly did not intend for the act to apply to a private corporation receiving public funds to pay for property, goods, or services it provides, when that corporation is not supported wholly or principally by public funds.).</p></li>
<li>b. Bodies whose members include governmental officials.
<p>The presence of a government official on the governing body of an entity does not make the entity a public body. The body must meet the statutory definition, or be performing a delegated function of a public body as discussed below.</p></li>
</ol>
</li>
<li>5. Multi-state or regional bodies.
<p>Such bodies are not statutorily exempt from the act. a circuit court has held that the act applies to a county industrial Development authority. Lee Jackson Motel Inc., et al v. Industrial Development Authority, 4 Va. Cir. 125 (Frederick Cir. Ct. 1983).</p></li>
<li>6. Advisory boards and commissions, quasigovernmental entities.
<p>The act applies to any committee or subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. Va. Code Ann. § 2.2-3701. The presence of private sector or citizen members on such a body does not excuse the body from application of the act.</p></li>
<li>7. Others.
<p>Among other groups excluded from disclosure under the act are (i) Parole Boards (Va. Code ann. § 2.2-3703(a)(1)), (ii) The Virginia State Crime Commission (Va. Code ann. § 2.2-3703(a)(4), and (iii) family assessment and planning teams established pursuant to § 2.2-5207 (§ 2.2-3703(a)(3)).</p></li>
</ol>
</li>
<li>C. What records are and are not subject to the act?
<p>Consultant reports. nonexempt portions of a report of a consultant hired by or at the request of a local public body or the mayor or chief executive or administrative officer of such public body are subject to the act if (i) the contents of such report have been distributed or disclosed to members of the local public body or (ii) the local public body has scheduled any action on a matter that is the subject of the consultant’s report. Va. Code ann. § 2.2-3705.8(B).</p>
<p>Settlements by the Commonwealth. no settlement of a civil action against the Commonwealth involving money damages may be made subject to a confidentiality agreement prohibiting the disclosure of the settlement amount except where required by law or imposed by a court. Va. Code ann. § 2.2-514.</p>
<p>Judicial Inquiry. any evidence of alleged misconduct concerning a judge who is up for election or reelection that is transmitted to the House and Senate Committees for Courts of Justice or to any member of the general assembly loses its confidential character. Va. Code ann. § 17.1-918(B).</p>
<ol class="sub-sub-ol">
<li>1. What kind of records are covered?
<ol class="sub-sub-sub-ol">
<li>a. General Definition of Records: “Public records” subject to the act are defined as “all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.” Va. Code ann. § 2.2-3701.</li>
<li>b. Existing Records: The act applies only to records in existence and in custody of the public body at the time the request for official records is received. 1991 Va. atty. gen. 13 (June 21, 1991). The act does not require that a public body create or prepare a particular record if it does not already exist. See Va. Code ann. § 2.2-3704(D); see also Hale v. Washington, 241 Va. 76, 400 S.E.2d 175 (1991); National Rural Utilities Cooperative Finance Corporation v. Greenlief, 27 Va. Cir. 140 (1992). However, the public body may summarize or abstract the information under terms agreed upon by the requester and the public body. Va. Code ann. § 2.2-3704(D).</li>
<li>c. Types of Records: Public records maintained by a public body on a computer or other electronic data processing system shall be made available to the public at a reasonable cost. Va. Code ann. § 2.2-3704(g). Videotapes, magnetic tapes, photographs, sound recordings are records subject to disclosure. Va. Code ann. § 2.2-3701. Booking photographs and mug shots are official records subject to disclosure under the act. 1990 Va. Op. atty. gen. 9 (august 30, 1990). But see Archer v. Mayes, 213 Va. 633, 194 S.E.2d 707 (1973)(Jury list is not an “official record” within the meaning of the act); cf. 1998 Va. Op. Atty. gen. 5 (September 23, 1998)(audio tapes, lyric sheets and other materials submitted to State Song Committee competition constitute “official records” within the meaning of this act).</li>
</ol>
</li>
<li>2. What physical form of records are covered?
<p>all physical forms of records are covered.</p></li>
<li>3. are certain records available for inspection but not copying?
<p>There is no distinction with respect to what may be copied and what may be inspected. The act provides that “all public records shall be open to inspection and copying.” Va. Code ann. § 2.2-3704(a).</p></li>
</ol>
</li>
<li>D. Fee provisions or practices.
<ol class="sub-sub-ol">
<li>1. Levels or limitations on fees.
<p>Fees Limited to Cost: Charges for time expended in accessing, duplicating, supplying or searching records may not exceed actual cost to the public body in supplying the records. Va. Code ann. § 2.2-3704(F). This limit also applies to records maintained on a computer or other data processing system. Va. Code ann. § 2.2-3704(g); see also 1989 Va. Op. atty gen. 12 (February 21, 1989)(Town may not charge newspaper reporter for the salary of town employee whose sole function for the time charged was to watch the reporter as he inspected the minutes of the town council.). note the exception in the act for the costs of creating certain topographical maps. Va. Code ann. § 2.2-3704(F).</p>
<p>Estimates: an advance cost estimate must be provided if requested by the citizen. Va. Code ann. § 2.2-3704(F).</p>
</li>
<li>2. Particular fee specifications or provisions.
<p>not specified.</p></li>
<li>3. Provisions for fee waivers.
<p>There are no provisions to waive fees, but in practice fees frequently are not imposed for small requests.</p></li>
<li>4. requirements or prohibitions regarding advance payment.
<p>If the public body determines in advance that search and copying charges are likely to exceed $200.00, the public body may require the citizen to pay, before processing the request, an amount not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the records. Va. Code ann.§ 2.2-3704(H). Before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing. Va. Code ann. § 2.2-3704(i).</p></li>
<li>5. Have agencies imposed prohibitive fees to discourage requesters?
<p>This behavior is encountered on occasion, generally at the local government level.</p></li>
</ol>
</li>
<li>E. Who enforces the act?
<p>Any person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction. Va. Code ann. § 2.2-3713(a).</p>
<ol class="sub-sub-ol">
<li>1. attorney general’s role.
<p>The attorney general has no role in enforcement.</p></li>
<li>2. availability of an ombudsman.
<p>The Virginia Freedom of information advisory Council has a staff that answers inquiries on a formal and informal basis, but does not perform any ombudsman function with regard to any public body.</p></li>
<li>3. Commission or agency enforcement.
<p>none.</p></li>
</ol>
</li>
<li>F. are there sanctions for noncompliance?
<p>In a proceeding commenced against members of public bodies under § 2.2-3713 for a violation of § § 2.2-3704, 2.2-3705.1 through 2.2-3705.8, 2.2-3706, 2.2-3707, 2.2-3708, 2.2-3708.1, 2.2-3710, 2.2-3711 or § 2.2-3712, the court, if it finds that a violation was willfully and knowingly made, shall impose upon such member in his individual capacity, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $250 nor more than $1,000, which amount shall be paid into the State Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $1,000 nor more than $2,500. Va. Code ann. § 2.2-3714.</p>
</li>
</ol>
</li>
<li>ii. EXEMPTIONS AND OTHER LEGAL LIMITATIONS
<ol class="sub-ol">
<li>A. Exemptions in the open records statute.
<ol class="sub-sub-ol">
<li>1. Character of exemptions.
<ol class="sub-sub-sub-ol">
<li>a. general or specific?
Specific. There are one hundred (100) specific exemptions provided for in the act. Va. Code ann. § § 2.2-3705.1 to -3705.7. all exemptions are to “be narrowly construed” so as to not “discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.” Va. Code ann. § 2.2-3700.</li>
<li>b. Mandatory or discretionary?The excluded records may be disclosed by the custodian, in his discretion, except where such disclosure is otherwise prohibited by law. Va. Code ann. § § 2.2-3705.1 to -3705.7.</li>
<li>c. Patterned after federal Freedom of information act?although there are occasional similarities, the philosophy underlying the Virginia act is to provide for very narrow exemptions.</li>
</ol>
</li>
<li>2. Discussion of each exemption.
<ol class="sub-sub-sub-ol">
<li>a. Criminal Investigations: Criminal investigative files, including memoranda, correspondence, evidence, case files or reports, witness statements, and complaints related to criminal investigations (§ 2.2-3706(F)(1)); adult arrestee photographs when necessary to avoid jeopardizing ongoing felony investigation (§ 2.2-3706(F)(2)); reports submitted in confidence to state, local and campus police departments and other authorized investigators (§ 2.2-3706(F)(3)), and all records of persons imprisoned in penal institutions, provided that such records relate to the imprisonment (§ 2.2-3706(F)(6)). Criminal incident information relating to felony offenses is not excluded from the act unless disclosure is likely to jeopardize an ongoing criminal investigation, compromise the safety of an individual, cause a suspect to flee, or result in destruction of evidence. Va. Code ann. § 2.2-3706(B). all records of adult persons under (i) investigation or supervision by a local pretrial services agency in accordance with article 5 (§ 19.2-152.2 et seq.) of Chapter 9 of Title 19.2; (ii) investigation, probation supervision or monitoring by a local community-based probation program in accordance with article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1; or (iii) investigation or supervision by state probation and parole services in accordance with article 2 (§ 53.1-141 et seq.) of Chapter 4 of Title 53.1. Va. Code ann. § 2.2-3706(F)(8).</li>
<li>b. Alcohol and Gaming: Confidential records of all investigations of applications for licenses and all licensees made or submitted to the alcohol Beverage Control Board, the State Lottery Department, the Virginia racing Commission, the Department of agriculture and Consumer Services, or Private Security Services Unit of the Department of Criminal Justice Services. Va. Code ann. § 2.2-3705.3(1). records of studies and investigations by the State Lottery Department of (i) lottery agents, (ii) lottery vendors, (iii) lottery crimes under § § 58.1-4014 through 58.1-4018, (iv) defects in the law or regulations that cause abuses in the administration and operation of the lottery and any evasions of such provisions, or (v) the use of the lottery as a subterfuge for organized crime and illegal gambling where such official records have not been publicly released, published or copyrighted. all studies and investigations referred to under clauses (iii), (iv) and (v) shall be open to inspection and copying upon completion of the study or investigation. Va. Code ann. § 2.2-3705.3(6).</li>
<li>c. Personally Identifying Information: State income, business, and estate tax returns and personal property tax returns, scholastic and confidential records protected by the tax statutes are excluded. Va. Code ann. § 2.2-3705.7(1). Scholastic records concerning identifiable individuals are also excluded. access to scholastic records shall not be denied to the subject person or, if underage, to his or her guardian. Va. Code ann. § 2.2-3705.4(1). Personnel records containing information concerning identifiable individuals are excluded, except that access shall not be denied to the subject. Va. Code ann. § 2.2-3705.1(1). Health records, except that those records may be personally reviewed by the individual who is the subject of the records. Va. Code ann. § 2.2-3705.5(1).</li>
<li>d. Executive and Legislative Working Papers: Working papers, and correspondence prepared by or for members of the general assembly or the Division of Legislative Services or the Office of the governor or the Lieutenant governor, the attorney general, the mayor or other chief executive officer of any political subdivision of the Commonwealth, or the president or other chief executive officer of any public institution of higher education. Va. Code ann. § 2.2-3075.7(2). See e.g. Richmond Newspapers Inc. v. Casteen, 42 Va. Cir. 505 (1997) (determining correspondence between the president of a university and an independent auditing entity is exempt from disclosure under the act). This executive privilege does not extend to state government officials. Griffin v. Virginia Department of Transportation, 46 Va. Cir. 399 (1998).</li>
<li>e. Written Opinions: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of those bodies and any other records protected by the attorney-client privilege. Va. Code ann. § 2.2-3705.1(2).</li>
<li>f. Litigation Records: Legal memoranda and other work product compiled specifically for litigation or as a part of an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. Va. Code ann. § 2.2-3705.1(3).</li>
<li>g. Educational Agency and Institutional Records: Confidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting (i) admission to an educational agency or institution, (ii) an application for employment, or (iii) receipt of an honor or honorary recognition. Va. Code ann. § 2.2-2705.4(2).</li>
<li>h. Library Records: Library records which may be used to identify both (i) any library patron who has borrowed material from a library and (ii) the material such patron borrowed. Va. Code ann. § 2.2-3705.7(3). See 1989 Va. Op. atty. gen. 19 (January 4, 1989)(Books borrowed from library and bibliographies or reference questions asked by university faculty are exempt from disclosure).</li>
<li>i. Employment and Examination Records: any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student’s performance (ii) any employee or employment seeker’s qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by any public body. The subject of such employment tests, however, shall be entitled to review and inspect all records relative to his performance on such employment tests. The test shall be made available when, in the reasonable opinion of such public body, it no longer has any potential for future use and will not jeopardize future tests or exams. Va. Code ann. § 2.2-3705.1(4).</li>
<li>j. Department of Health Professions Examination and Licensure Records: applications for admission to examinations or for licensure and scoring records maintained by the Department of Health Professions or any board in that department on individual licensees or applicants. Such documents will be made available to the subject thereof for copying during normal working hours. Va. Code ann. § 2.2-3705.5(2).</li>
<li>k. Department of Health Investigation Records: records of active investigations being conducted by the Department of Health Professions or by any health regulatory board in the Commonwealth. Va. Code ann. § 2.2-3705.3(2).</li>
<li>l. Records of Executive or Closed Meetings: records recorded in or compiled exclusively for executive or closed meetings lawfully held pursuant to§ 2.2-3711. Va. Code ann.§ 2.2-3705.1(5). </li>
<li>m. Records of the State Office on Aging and the Office of Social Services: reports, documentary evidence and other information as specified in § § 2.2-3706 and 63.1-55.4. Va. Code ann. § 2.2-3705.5(3). The first code reference concerns records of uncompleted investigations and certain identifying information held by the ombudsman of the State Office of aging. The latter section refers to protective service complaints made to the Office of Social Services or Public Welfare.</li>
<li>n. Virginia Port Authority: Proprietary information gathered by or for the Virginia Port authority as provided in § 62.1-132.4 or § 62.1-134.1. Va. Code ann. § 2.2-3705.6(1).</li>
<li>o. Virginia Department of Transportation: Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department’s Bid analysis and Monitoring Program. Va. Code ann. § 2.2-3705.7(4).</li>
<li>p. Vendor Computer Programs: Vendor proprietary information software which may be in the official records of a public body. Va. Code ann. § 2.2-3705.1(6).</li>
<li>q. Industrial Development Financial Statements: Financial statements not publicly available filed with applications for industrial development financings in accordance with Chapter 49 (§ 15.2-4900 et seq.) of Title 15.2. Va. Code ann. § 2.2-3705.6(2).</li>
<li>r. Educational Research Records: Data, records or information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher learning, other than the institutions’ financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where such data, records or information has not been publicly released, published, copyrighted or patented. Va. Code ann. § 2.2-3705.4(4).</li>
<li>s. Lists of Bondholders: Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether maintained by the political subdivision itself or by a single fiduciary designative by the political subdivision. Va. Code ann. § 2.2-3705.7(5).</li>
<li>t. Private Business Proprietary Records: Proprietary records voluntarily provided by private businesses pursuant to a promise of confidentiality from a public body, and used by a public body for business, trade or tourism development or retention. records related to businesses that are considering locating or expanding in Virginia, prepared by public bodies, where competition or bargaining is involved and disclosure would adversely affect the financial interests of the governmental unit. Va. Code ann. § 2.2-3705.6(3).</li>
<li>u. Toxic Substances Information Act: information which was filed as confidential under the Toxic Substances information act (§ § 32.1-239 et seq.), as such act existed prior to July 1, 1992. Va. Code ann. § 2.2-3705.6(4).</li>
<li>v. Rape or Battered Spouses Records: Confidential records, including victim identity, provided to or obtained by staff in a rape crisis center or a program for battered spouses. Va. Code ann. § 2.2-3705.2(1).</li>
<li>w. Computer Software Developed by Public Bodies: Computer software developed by or for a state agency, state-supported institution of higher education or political subdivision of the Commonwealth. Va. Code ann. § 2.2-3705.1(7).</li>
<li>x. Department of Personnel and Training: investigator notes, correspondence and information furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human resources Management or to such personnel of any local public body, including local school boards, responsible for conducting such investigations in confidence. However, information from inactive reports may be disclosed as long as the identity of charging parties, persons supplying the information or other individuals involved are not revealed. Va. Code ann. § 2.2-3705.3(3).</li>
<li>y. Fisheries Data: Fisheries data which would permit identification of any person or vessel, except when required by court order. Va. Code ann. § 2.2-3705.6(5).</li>
<li>z. Department of Medical Assistance Services: records of active investigations being conducted by the Department of Medical assistance Services. Va. Code ann. § 2.2-3705.3(4).</li>
<li>aa. Disclosure and Standard of Conduct Records of Members of the General Assembly: records and writings furnished by a member of the general assembly to a meeting of a standing committee, special committee, or subcommittee of his house established solely for the purpose of reviewing members’ annual disclosure statements and supporting materials or of formulating advisory opinions to members on standards of conduct, or both. Va. Code ann. § 2.2-3705.7(6).</li>
<li>bb. Customer Account Information: Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer’s name and service address, but excluding the amount of utility service provided and the amount of money paid for such utility service. Va. Code ann. § 2.2-3705.7(7).</li>
<li>cc. Investigative Records Relating to the Virginia Human Rights Act: investigative notes and other correspondence and information furnished in confidence with respect to an active investigation or conciliation process involving an alleged violation of the Virginia Human rights act, or any local ordinance adopted in accordance with the law. However, information from inactive reports may be distributed in a form that does not reveal the identities of the parties involved or persons supplying information. Va. Code ann. § 2.2-3705.3(5). </li>
<li>dd. Records of the Department of Social Services: Correspondence and other information furnished in confidence to the Department of Social Services in connection with an active investigation of an applicant or licensee. However, records of completed investigations may be disclosed as long as the indentities of the complaintants, persons supplying information, or other individuals involved are not revealed. Va. Code ann. § 2.2-3705.5(4).</li>
<li>ee. Records of the Virginia Housing Development Authority: Personal information, as defined in § 2.2-8301, filed with the Virginia Housing Development authority or any local redevelopment or housing authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development authority, or concerning persons participating in or on the waiting list for the programs. However, access to one’s own information shall not be denied. Va. Code ann. § 2.2-3705.7(8).</li>
<li>ff. Hazardous Waste Site Records: records regarding the location of hazardous waste facilities, except as provided in § 10.1-1441, if disclosure of them would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions and provisions of the sitting agreement. Va. Code ann. § 2.2-3705.7(9).</li>
<li>gg. Appraisals and Cost Estimates of Real Property: appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease. Va. Code ann. § 2.2-3705.1(8).</li>
<li>hh. Endangered Species and Protected Lands: records containing information on the site specific location of rare, threatened, endangered or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body which has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. The exemption, however, does not apply to requests from the owner of the land. Va. Code ann. § 2.2-3705.7(10).</li>
<li>ii. Proprietary State Lottery Records: Official records, memoranda, working papers, graphics, video or audio tapes, production models, data and information of a proprietary nature produced by or for or collected by or for the State Lottery Department relating to specific lottery game design and other aspects, where such records have not been publicly released, copyrighted or patented. if released, published or copyrighted, all game-related information shall be subject to public disclosure upon the first day of sales for the specific lottery game to which it pertains. Va. Code ann. § 2.2-3705.7(11).</li>
<li>jj. State Lottery Investigative Records: records of studies and investigations by the State Lottery Department of (i) lottery agents, (ii) lottery vendors, (iii) lottery crimes under § § 58.1-4014 through 58.1-4018, (iv) defects in the law or regulations which cause abuses in the administration and operation of the lottery and any evasions of such provisions, or (v) use of the lottery as a subterfuge for organized crime and illegal gambling where such official records have not been publicly released, published or copyrighted. all studies and investigations referred to under clauses (iii), (iv) and (v) shall be open to inspection upon completion. Va. Code ann. § 2.2-3705.3(6).</li>
<li>kk. Building Plans: Those portions of engineering and construction drawings and plans submitted for the sole purpose of complying with the Building Code in obtaining a building permit which would identify specific trade secrets or other information which, if disclosed, would be harmful to the competitive position of the owner or lessee. This exemption does not apply once the building is complete or to information relating to safety or environmental soundness. Exclusions also extend to those portions of engineering and construction drawings and plans that reveal critical structural components, security equipment and systems, ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, and other utility equipment and systems submitted for the purpose of complying with the Uniform Statewide Building Code (§ 36-97 et seq.) or the Statewide Fire Prevention Code (§ 27-94 et seq.), the disclosure of which would jeopardize the safety or security of any public or private commercial office, multifamily residential or retail building or its occupants in the event of terrorism or other threat to public safety, to the extent that the owner or lessee of such property, equipment or system in writing (i) invokes the protections of this paragraph; (ii) identifies the drawings, plans, or other materials to be protected; and (iii) states the reasons why protection is necessary. nothing in this subdivision shall prevent the disclosure of information relating to any building in connection with an inquiry into the performance of that building after it has been subjected to fire, explosion, natural disaster or other catastrophic event. Va. Code ann. § 2.2-3705.2(2).</li>
<li>ll. Department of the Treasury: records concerning reserves established in specific claims administered by the Department of the Treasury through its Division of risk Management as provided in article 5 (§ 2.2-1832 et seq.) of Chapter 18 of this title, or by any county, city, or town; and investigative notes, correspondence and information furnished in confidence with respect to an investigation of a claim or a potential claim against a public body’s insurance policy or self-insurance plan. However, nothing in this subdivision prohibits the disclosure of information taken from inactive reports upon expiration of the period of limitations for the filing of a civil suit. Va. Code ann. § 2.3705.1(9).</li>
<li>mm. Statewide Emergency Medical Care System Records: information and records collected for the designation and verification of trauma centers and other specialty care centers within the Statewide Emergency Medical Care System pursuant to article 2.1 (§ 32.1-111.1 et seq.). Va. Code ann. § 2.2-3705.5(5).</li>
<li>nn. Records Relating to Involuntary Admission and Treatment: reports and court documents required to be kept confidential pursuant to § 37.1-818. Va. Code ann. § 2.2-3705.5(6).</li>
<li>oo. Auditor of Public Accounts and the Joint Legislative Audit and Review Commission: investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by this chapter or any Virginia statute, provided to or produced by or for (i) the auditor of Public accounts; (ii) the Joint Legislative audit and review Commission; (iii) an appropriate authority as definied in §2.2-3010 with respect to an allegation of wrongdoing or under the Fraud and abuse Whistle Blower Protection act (§ 2.2-3009 et. seq.); (iv) the Department of the State internal auditor with respect to an investigation initiated through the State Employee Fraud, Waste and abuse Hotline; or (iv) the committee or auditor with respect to an investigation or audit conducted pursuant to § 15.2-825; or (v) auditors, appointed by the local governing body of any county, city or town or a school board, who by charter, ordinance, or statute have responsibility for conducting an investigation of any officer, department or program of such body. Limited categories of information concerning closed investigations must be released in a form that does not reveal the identity of the complainants or persons supplying information to the investigators. Va. Code ann. § 2.2-3705.3(7).</li>
<li>pp. Documents Submitted to the Commissioner of Health: Data formerly required to be submitted to the Commissioner of Health relating to the establishment of new or expansion of existing clinical health services, acquisition of major medical equipment, or certain projects requiring capital expenditures pursuant to former § 32.1-102.3:4. Va. Code ann. § 2.2-3705.5(7)</li>
<li>qq. Records Regarding Access to Data Processing and Telecommunications Systems: Documentation or other information which describes the design, function, operation or access control features of any security system, whether manual or automated, which is used to control access to or use of any automated data processing or telecommunications system. Va. Code ann. § 2.2-3705.2(3).</li>
<li>rr. Department of Rail and Public Transportation: Confidential financial statements, balance sheets, trade secrets, and revenue and cost projections provided to the Department of rail and Public Transportation, provided such information is exempt under the federal Freedom of information act or the federal interstate Commerce act or other laws administered by the Surface Transportation Board or the Federal railroad administration with respect to data provided in confidence to the Surface Transportation Board and the Federal railroad administration. Va. Code ann. § 2.2-3705.6(6).</li>
<li>ss. Proprietary Records of the Virginia Retirement, local retirement systems,the Virginia Colllege Savings Plan, or the Rector and Visitors of the University of Virginia: records relating to the acquisition, holding, or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, to the extent that: (i) such records contain confidential analyses prepared for the rector and Visitors of the University of Virginia, prepared by the retirement system or the Virginia College Savings Plan, or provided to the retirement system or the Virginia College Savings Plan under a promise of confidentiality, of the future value of such ownership interest or the future financial performance of the entity; and (ii) disclosure of such confidential analyses would have an adverse effect on the value of the investment to be acquired, held or disposed of by the retirement system or the rector and Visitors of the University of Virginia or the Virginia College Savings Plan. nothing in this subdivision shall be construed to prevent the disclosure of records relating to the identity of any investment held, the amount invested, or the present value of such investment. Va. Code ann. § 2.2-3705.7(12).</li>
<li>tt. Proprietary Records of Private Energy Suppliers: Confidential proprietary records related to inventory and sales, voluntarily provided by private energy suppliers to the Department of Mines, Minerals and Energy, used by that Department for energy contingency planning purposes or for developing consolidated statistical information on energy supplies. Va. Code ann. § 2.2-3705.6(7).</li>
<li>uu. Proprietary Records Provided to the Board of Medical Assistance Services: Confidential proprietary information furnished to the Board of Medical assistance Services or the Medicaid Prior authorization advisory Committee pursuant to article 4 (§ 32.1-331.12 et seq.) of Chapter 10 of Title 32.1. Va. Code ann. § 2.2-3705.6(8).</li>
<li>vv. Proprietary and Commercial Records Provided by Private Transportation Businesses: Proprietary, commercial or financial information, balance sheets, trade secrets, and revenue and cost projections provided by a private transportation business to the Virginia Department of Transportation and the Department of rail and Public Transportation for the purpose of conducting transportation studies needed to obtain grants or other financial assistance under the Transportation Equity act for the 21st Century, provided such information is exempt under the federal FOia, the federal interstate Commerce act or other laws administered by the Federal railroad administration or the Surface Transportation Board. This section does not apply to any wholly owned subsidiary of a public body. Va. Code ann. § 2.2-3705.6(9).</li>
<li>ww. Records Relating to Subscribers of the Virginia Wildlife Magazine: names and addresses of subscribers to Virginia Wildlife magazine, published by the Department of game and inland Fisheries, provided the individual subscriber has requested in writing that the Department not release such information. Va. Code ann. § 2.2-3705.7(13).</li>
<li>xx. Health Care Professionals License Information: information to be provided pursuant to § 54.1-2506.1. Va. Code ann. § 2.2-3705.5(8). This Code reference authorizes the Department of Health Professions to require individuals applying for licensure in health-related fields to provide additional information beyond that which is required to determine the individual’s qualifications to be licensed.</li>
<li>yy. Bids on Public Construction Projects: Confidential information designated as provided in § 2.2-4342(F) as trade secrets or proprietary information by any person submitting to a public body a prequalification to bid on public construction projects in accordance with § 2.2-4317(B). Va. Code ann. § 2.2-3705.6(10). </li>
<li>zz. Fatality Records: information and records acquired (i) during a review of any child death by the State Child Fatality review Team established pursuant to § 32.1-283.1, or by a local or regional child fatality review team to the extent made confidential by § 32.1-283.2; (ii) during a review of any death by a family violence fatality review team to the extent made confidential by § 32.1-283.3; or (iii) during a review of any adult death conducted by the adult Fatality review Team to the extent made confidential by § 32.1-283.5. Va. Code ann. § 2.2-3705.5(9).</li>
<li>aaa. Loan Records Submitted or Maintained by the Assistive Technology Loan Fund Authority: Financial, medical, rehabilitative and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the assistive Technology Loan Fund authority. Va. Code ann. § 2-3705.7(14).</li>
<li>bbb. Proprietary Records submitted pursuant to the Public-Private Transportation Act: Confidential proprietary records which are voluntarily provided, pursuant to a promise of confidentiality, by a private entity pursuant to a proposal filed with a public entity or an affected local jurisdiction under the Public-Private Transportation act of 1995, and memoranda or other records which would adversely affect the financial interest of the entity or the process of competition or bargaining if released. The private entity must invoke the exclusion, identify the materials for which protection is sought, and state the reason for protection. However, nothing in this subdivision prohibits the release of procurement records as required by § 56-573.1 or 56-575.16. Va. Code ann. § 2.2-3705.6(11).</li>
<li>ccc. Records Relating to Safety and Security of Law Enforcement: records of law-enforcement agencies, to the extent that such records contain specific tactical plans, the disclosure of which would jeopardize the safety and security of law enforcement personnel or the general public. records of emergency service agencies to the extent that such records contain specific tactical plans relating to antiterrorist activity. Va. Code ann. § 2.2-3705.2(4).</li>
<li>ddd. Proprietary and Confidential Records of the University of Virginia and the University of Virginia Medical Center: all records of the University of Virginia or the University of Virginia Medical Center or Eastern Virginia Medical School, which contain proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, if disclosure would harm the competitive position of the Medical Center or Eastern Virginia Medical School. Va. Code ann. § 2.2-3705.4(5).</li>
<li>eee. Patient Records Collected by the Board of Health: Patient level data collected by the Board of Health and not yet processed, verified, and released to the Board by the non-profit organization with which the Commissioner of Health has contracted. Va. Code ann. § 2.2-3705.5(10).</li>
<li>fff. Virginia Commonwealth University Health System Authority records: Certain records pertaining to medical or teaching staffs, proprietary information, customer accounts, contract cost estimates, financial statements, consulting reports, study or research documents, or marketing or operational strategies. Va. Code ann. § 2.2-3705.7(15).</li>
<li>ggg. Confidential Proprietary information or trade secrets of the Virginia Resources Authority: Confidential proprietary information or trade secrets provided by a private person or entity in connection with financial assistance rendered or to be rendered by the Virginia resources authority where, if such information were made public, the financial interest of the private person or entity would be adversely affected and where such information was provided pursuant to a promise of confidentiality. Va. Code ann. § 2-3705.6(12).</li>
<li>hhh. Franchisee records relating to new services: Confidential proprietary information provided by a franchisee to its franchising authority, pursuant to a promise of confidentiality pertaining to the potential provision of new services, technologies or improvements where, if made public, the competitive advantage or financial interests of the franchisee would be adversely affected. The franchisee must invoke the exclusion, identify the date for which protection is sought, and state the reason for protection. Va. Code ann. § 2.2-3705.6(13).</li>
<li>iii. Records of the Health Practitioners’ Monitoring Program Committee within the Department of Health Professions: Such records to the extent that they may identify any practitioner who may be, or who is actually, impaired to the extent disclosure is prohibited by § 54.1-2517. Va. Code ann. § 2.2-3705.5(11).</li>
<li>jjj. Grant Applications to the Commonwealth Neurotrauma Initiative Advisory Board: To the extent that such records contain (i) medical or mental records, or other identifying individual patents, or (ii) proprietary business or research-related information from research on medical, rehabilitative, scientific, technical or scholarly issues, when such information has not been publicly released, published, copyrighted or patented and disclosure would be harmful to the competitive position of the applicant. Va. Code ann. § 2.2-3705.5(12).</li>
<li>kkk. Railway safety information: information disclosing the security aspects of a system safety program plan adopted by the rail Fixed guideway Systems Safety Oversight agency; and information in the possession of such agency, when the release of such information would jeopardize an ongoing investigation or other incident threatening rail-way safety. Va. Code ann. § 2.2-3705.2(5).</li>
<li>lll. Documents provided to the Department of Agriculture and Consumer Services regarding Chartiable Gaming: information of a proprietary nature furnished by a supplier of charitable gaming supplies pursuant to § 18.2-340.34(E). Va. Code ann. § 2.2-3705.6(14).</li>
<li>mmm. Personal information provided to the Board of the Virginia College Savings Plan: Personally identifying information of individuals who applied for, requested information about, or entered into prepaid tuition contracts or savings trust account agreements. information may be released in statistical or other form if it does not disclose personally identifying information. individuals shall have access to their own information. Va. Code ann. § 2.2-3705.4(6).</li>
<li>nnn. Records reviewed by the Commissioner of Health: records, including books, files, accounts and computer recordings, reviewed by the Commissioner of Health while examining, reviewing or investigating a managed care health insurance plan licensee. Va. Code. ann. § 2.2-3705.5(13).</li>
<li>ooo. Records necessary to security and employee safety: Drawings, manuals and minutes or other records revealing surveillance techniques, personnel deployments, alarm technologies or operational protocols, the disclosure of which would jeopardize the security of any governmental building, facility, or structure or the employee safety at any governmental building, facility, or structure. Va. Code ann. § 2.2-3705.2(6).</li>
<li>ppp. Virginia apple producer sales records: records and reports related to sales provided to the Virginia State apple Board pursuant to § § 3.2-1215. Va. Code ann. § 2.2-3705.6(15).</li>
<li>qqq. Records relating to federal environmental enforcement: records of the Department of Environmental Quality, the State Water Control Board, the State air Pollution Control Board or the Virginia Waste Management Board that relate to active federal environmental enforcement or enforcement strategies. This exception does not apply to disclosure of records related to inspection reports, notices of violation, and documents detailing the nature of any environmental contamination that may have occurred or similar documents. Va. Code ann. § 2.2-3705.7(16).</li>
<li>rrr. Identifying information related to the operation of toll facilities: records related to the operation of toll facilities that identify an individual, vehicle or travel itinerary. Va. Code ann. § 2.2-3705.7(17).</li>
<li>sss. Records of the Virginia Office for Protection and Advocacy: Documentary evidence maintained by the Office in connection with specific complaints or investigations. Upon the conclusion of the investigation of a complaint, this exclusion no longer applies, but the Office shall not at any time release information about a person with mental illness, mental retardation, developmental disabilities or other disability unless required by court order or consented to by the person or his legal counsel. Va. Code ann. § 2.2-3705.3(8).</li>
<li>ttt. Information furnished in confidence to the Department of Employment Dispute Resolution: information relating to an investigation, consultation or mediation under Chapter 10 (§ 2.2-1000 et seq.) of this title, and records resulting from an investigation, consultation, or mediation, except that information may be distributed about inactive reports in a form that does not reveal the identity of the parties involved or of those supplying information. Va. Code ann. § 2.2-3705.3(9).</li>
<li>uuu. Trade Secrets: Several trade secrets related rules are collected at Va. Code ann. § 2.2-3705.6. See, e.g., Va. Code ann. § 2.2-3705.6(16)(material submitted by CMrS providers to the Wireless Carrier E-911 Cost recovery Subcommittee relating to the provision of wireless E-911 service).</li>
<li>vvv. State Lottery Department Records: records pertaining to (i) the Social Security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the non-lottery operations of specific retail locations, and (ii) individual lottery winners, except that winner’s name, hometown, and amount won shall be disclosed. Va. Code ann. § 2.2-3705.7(18).</li>
<li>www. Confidential Records: records, information and statistical registries required to be kept confidential pursuant to § 63.2-102 and 63.2-104. Va. Code ann. § 2.2-3705.5(14).</li>
<li>xxx. Personal information: as defined in § 2.2-3801, including electronic mail addresses, furnished to a public body for the purpose of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the public body not disclose such information. However, access shall not be denied to the subject of the record. Va. Code ann. § 2.2-3705.1(10).</li>
<li>yyy. Virginia Administrative Dispute Resolution Act: Communications and materials required to be kept confidential pursuant to § 2.2-4119 of the Virginia administrative Dispute resolution act (§ 2.2-4115 et seq.). Va. Code ann. § 2.2-3705.1(11).</li>
<li>zzz. Negotiation and award of a specific contract: records relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body. Such records shall not be withheld after the public body has made a decision to award or not to award the contract. in the case of procurement transactions conducted pursuant to the Virginia Public Procurement act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of records relating to such transactions shall be governed by the Virginia Public Procurement act. Va. Code ann. § 2.2-3705.1(12).</li>
<li>aaaa. School Safety Audits: Security plans and specific assessment components of school safety audits, as provided in § 22.1-279.8. nothing in this subdivision prohibits the disclosure of records relating to the effectiveness of security plans after (i) any school building or property has been subjected to fire, explosion, natural disaster or other catastrophic event, or (ii) any person on school property has suffered or been threatened with any personal injury. Va. Code ann. § 2.2-3705.2(7).</li>
<li>bbbb. Mental Health of Sexually Violent Predator: records of the Commitment review Committee concerning the mental health assessment of an individual subject to commitment as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of Title 37.2; except that in no case shall records identifying the victims of a sexually violent predator be disclosed. Va. Code ann. § 2.2-3705.2(9).</li>
<li>cccc. Subscriber data, which for the purposes of this subdivision, means the name, address, telephone number, and any other information identifying a subscriber of a telecommunications carrier, provided directly or indirectly by a telecommunications carrier to a public body that operates a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system, if the data is in a form not made available by the telecommunications carrier to the public generally. nothing in this subdivision prevents the release of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester is seeking to obtain public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code ann. § 2.2-3705.2(10).</li>
<li>dddd. Subscriber data, which for the purposes of this subdivision, means the name, address, telephone number, and any other information identifying a subscriber of a telecommunications carrier, collected by a local governing body in accordance with the Enhanced Public Safety Telephone Services act (§ 56-484.12 et seq.), and other identifying information of a personal, medical, or financial nature provided to a local governing body in connection with a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system, if such records are not otherwise publicly available. nothing in this subdivision prevents the release of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester is seeking to obtain public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code ann. § 2.2-3705.2(11).</li>
<li>eeee. Zoning Enforcement Complaints: The names, addresses and telephone numbers of complainants furnished in confidence with respect to an investigation of individual zoning enforcement complaints made to a local governing body. Va. Code ann. § 2.2-3705.3(10).</li>
<li>ffff. Department of Criminal Justice Services: records of active investigations being conducted by the Department of Criminal Justice Services pursuant to article 4 (§ 9.1-138 et seq.), article 4.1 (§ 9.1-150.1 et seq.), article 11 (§ 9.1-185 et seq.) and article 12 (§ 9.1-186 et seq.) of Chapter 1 of Title 9.1. Va. Code ann. § 2.2-3705.3(11).</li>
<li>gggg. Prescription Monitoring Program: all data, records, and reports relating to the prescribing and dispensing of covered substances to recipients and any abstracts from such data, records, and reports that are in the possession of the Prescription Monitoring Program pursuant to Chapter 25.2 (§ 54.1-2519 et seq.) of Title 54.1 and any material relating to the operation or security of the Program. Va. Code ann. § 2.2-3705.5(15).</li>
<li>hhhh. Virginia Birth-Related Neurological Injury Compensation Program: records required to be kept confidential pursuant to § 38.2-5002.2. Va. Code ann. § 2.2-3705.5(16).</li>
<li>iiii. Quarantine Records of the State Health Commissioner: relating to the health of any person or persons subject to an order of quarantine or an order of isolation pursuant to article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1; this provision shall not, however, be construed to prohibit the disclosure of statistical summaries, abstracts or other information in aggregate form. Va. Code ann. § 2.2-3705.5(17).</li>
<li>jjjj. Persons receiving transportation services: records containing the names and addresses or other contact information of persons receiving transportation services from a state or local public body or its designee under Title ii of the americans with Disabilities act, (42 U.S.C. § 12131 et seq.) or funded by Temporary assistance for needy Families (TanF) created under § 63.2-600. Va. Code ann. § 2.2-3705.5(18).</li> <li>kkkk. innovation and Entrepreneurship investment authority and Commonwealth Health Research Board Applications: records submitted as a grant or loan application, or accompanying a grant or loan application, to the innovation and Entrepreneurship investment authority or to the Commonwealth Health research Board, to the extent such records contain proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological or scholarly issues, when such information has not been publicly released, published, copyrighted or patented, if the disclosure of such information would be harmful to the competitive position of the applicant. Va. Code ann. § 2.2-3705.6(17).</li>
<li>llll. Confidential proprietary records and trade secrets developed and held by a local public body: including (i) providing telecommunication services pursuant to § 56-265.4:4 and (ii) providing cable television services pursuant to article 1.1 (§ 15.2-2108.2 et seq.) of Chapter 21 of Title 15.2, to the extent that disclosure of such records would be harmful to the competitive position of the locality. in order for confidential proprietary information or trade secrets to be excluded from the provisions of this chapter, the locality in writing shall (i) invoke the protections of this subdivision, (ii) identify with specificity the records or portions thereof for which protection is sought, and (iii) state the reasons why protection is necessary. Va. Code ann. § 2.2-3705.6(18).</li>
<li>mmmm. Virginia Wireless Service Authorities Act: Confidential proprietary records and trade secrets developed by or for a local authority created in accordance with the Virginia Wireless Service authorities act (§ 15.2-5431.1 et seq.) to provide qualifying communications services as authorized by article 5.1 (§ 56-484.7:1 et seq.) of Chapter 15 of Title 56, where disclosure of such information would be harmful to the competitive position of the authority, except that records required to be maintained in accordance with § 15.2-2160 shall be released. Va. Code ann. § 2.2-3705.6(19).</li>
<li>nnnn. Board for Branch Pilots: records relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result. Va. Code ann. § 2.2-3705.7(19).</li>
<li>oooo. Uniform Disposition of Unclaimed Property Act: records, investigative notes, correspondence, and information pertaining to the planning, scheduling and performance of examinations of holder records pursuant to the Uniform Disposition of Unclaimed Property act (§ 55-210.1 et seq.) prepared by or for the State Treasurer, his agents, employees or persons employed to perform an audit or examination of holder records. Va. Code ann. § 2.2-3705.7(20).</li>
<li>pppp. Virginia Department of Emergency Management or a local governing body: records relating to citizen emergency response teams established pursuant to an ordinance of a local governing body, to the extent that such records reveal the name, address, including e-mail address, telephone or pager numbers, or operating schedule of an individual participant in the program. Va. Code ann. § 2.2-3705.7(21).</li>
<li>qqqq. Records of state or local park and recreation departments: To the extent such records contain information identifying a person under the age of 18 years, where the parent or legal guardian of such person has requested in writing that such information not be disclosed. However, the disclosure of information defined as directory information under regulations implementing the Family Educational rights and Privacy act, 20 U.S.C. § 1232g is not prohibited, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent’s parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For records of such persons who are emancipated, the right of access may be asserted by the subject thereof. Va. Code ann. § 2.2-3705.7(22).</li>
<li>rrrr. Statewide Alert Network: records submitted for inclusion in the Statewide alert network administered by the Department of Emergency Management, to the extent that they reveal names, physical ad-dresses, e-mail addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide alert network or individuals participating in the Statewide alert network. Va. Code ann. § 2.2-3705.7(23).</li>
<li>ssss. Records of the Judicial Inquiry and Review Commission: records made confidential by § 17.1-913. Va. Code ann. § 2.2-3705.7(24).</li>
<li>tttt. Financial account information: Portions of records that contain account numbers or routing information for any credit card, debt card, or financial account of any person or public body. access will not be denied to the subject of the record. Va. Code ann. § 2.2-3705.1(13).</li>
<li>uuuu. Records of the state and local Military advisory councils: records of the Virginia Military advisory Council, the Virgnia national Defense industrial authority, or a local/regional military affairs organization appointed by a public body if those records (i) contain information relating to strategic decisions under consideration to prevent closure or realignment of federal assets or seek to limit the adverse economic effect of such realignment or closure, or (ii) disclose trade secrets. If invoking the trade secret exemption, the body must state with specificity the information protection sought and state why. Va. Code ann. § 2.2-3705.2(12).</li>
<li>vvvv. Internal Financial Controls: information as determined by the State Comptroller that describes the design, function, operation, or implementation of internal controls over the Commonwealth’s financial processes and system, and the assessment of risks and vulnerabilities of those controls, the disclosure of which would harm the state’s financial assets. This does not prohibit the auditor of Public accounts or the Joint Legislative audit and review Commission from reporting internal control deficiencies. Va. Code ann. § 2.2-3705.2(13). wwww. Statewide Agencies Radio System information (STARS): information on STarS or any similar public safety communications system that describes the design, function or operation of the system or relates to the frequencies assigned to the extent disclosure would jeopardize the security of a facility or a person. Va. Code ann. § 2.2-3705.2(14).</li>
<li>xxxx. Investigations Materials for Improper Testing: records provided or prepared by the Board of Education in connection with a review or investigation of any alleged breach in security, unauthorized alteration, or improper administration of tests by local school employees. This does not bar local school boards from taking personnel action or from requesters seeing the documents after a closed investigation as long as the records do not have the identity of the person supplying information in it. Va. Code ann. § 2.2-3705.3(12).</li>
<li>yyyy. Investigation Materials for Teacher Licensure: information furnished in confidence with respect to an active investigation related to the denial, suspension, or revocation of teacher licenses. This section does not prohibit disclosure to local school boards in taking personnel action. Closed investigation information can be released as long as it does not reference person who provided information. if an investigation fails to support a complaint, the identity of the subject of the investigation will only be provided to that person. Va. Code ann. § 2.2-3705.3(13).</li>
<li>zzzz. Certain Records for Attorney General Investigation: records, notes and information provided in confidence and related to an investigation by the attorney general under article 1 (§ 3.2-4200 et seq.) or article 3 (§ 3.2-4204 et seq.) of Chapter 42 of Title 3.2, article 10 (§ 18.2-246.6 et seq.) of Chapter 6 or Chapter 13 (§ 18.2-512 et seq.) of Title 18.2, or article 1 (§ 58.1-1000) of Chapter 10 of Title 58.1. However, records related to an investigation that has been inactive for more than six months shall, upon request, be disclosed provided such disclosure is not otherwise prohibited by law and does not reveal the identity of charging parties, complainants, persons supplying information, witnesses or other individuals involved in the investigation. Va. Code ann. § 2.2-3705.3(14).</li>
<li>aaaaa. Fundraising Records: records related to fundraising actitivites by or for public institutions of higher education to the extent the records reveal strategies, wealth assessments, tax-planning or other personal information of donors or expected donors. This does not bar the release of the identity of donors unless anonymity is requested. Va. Code ann. § 2.2-3705.4(7).</li>
<li>bbbbb. Threat assessment records: records of a threat assessment team established by a public institution of higher education relating to assessment or intervention with a specific individual. records shall be released if person is prosecuted for a criminal act. Va. Code ann. § 2.2-3705.4(8).</li>
<li>ccccc. Records of Retirement System or Virginia College Savings Plan: records with regarding to internal delibrations on investment strate-gies, investment management choices or trade secrets. Va. Code ann. § 2.2-3705.7(25).</li>
<li>ddddd. Confidential Department of Corrections Records: records made confidential by § 53.1-233. Va. Code ann. § 2.2-3705.7(26).</li>
<li>eeeee. Certain Treasury Records: records maintained by the Department of the Treasury or participants in the Local government investment Pool (§ 2.2-4600 et seq.), to the extent such records relate to information required to be provided by such participants to the Department to establish accounts in accordance with § 2.2-4602. Va. Code ann. § 2.2-3705.7(27).</li>
<li>fffff. Veterans Care Records: Personal information contained in Veteran Care Center resident Trust Funds concerning residents or patients of the Department of Veterans Service Care Centers, except access will not be denied to the subject of the records. Va. Code ann. § 2.2-3705.7(27).</li>
<li>ggggg. Veterans Services Foundation Donor Data: records kept in connection with fundraising activities by the Veterans Services Foundation to the extent such records reveal personal identifying information on the donor. This does not exempt the release of the identity of donors. Va. Code ann. § 2.2-3705.7(28).</li>
</ol>
</li>
</ol>
</li>
<li>B. Other statutory exclusions.
<ol class="sub-sub-ol">
<li>State Board Of Elections.
Records are not subject to disclosure under the act to the extent the records describe protocols for maintaining the security of ballots or voting and counting equipment, or reveal the results of risk assessments of specific local electoral procedures. Va. Code ann. § 24.2-625.1(a).</li>
<li>Conditional Release from Department of Corrections.
If a person is placed on conditional release none of the information provided to the Department of Mental Health, Mental retardation and Substance abuse Services, or a parole or probation officer including all relevant criminal history information, medical and mental health records, presentence and postsentence reports and victim impact statements, and the mental health evaluations is subject to the act. Va. Code ann. § 37.2-912(B).</li>
<li>Reports by Physicians and Laboratory Directors.
Laboratory reports filed with the Department of Health regarding its inventory of dangerous microbes and pathogens is confidential and not a public record pursuant to the act. Va. Code ann. § 32.1-36(F).</li>
<li>Municipal Cable Television Service.
The auditor of Public accounts, in connection with the audit of a locality’s cabletelevision services, shall not disclose the portions of a comprehensive business plan that reveal marketing strategies of a municipal cable television service. Va. Code ann. § 15.2-2108.11(i).</li>
<li>Adult Protective Services.
Criminal investigative reports received from law-enforcement agencies by agencies reviewing suspected cases of adult abuse, neglect or exploitation shall not be further disseminated and are not subject to public disclosure. Va. Code ann. § 63.2-1606(B).</li>
<li>Court records.
<ol class="sub-sub-sub-ol">
<li>a. Jury lists are not required to be disclosed. See Archer v. Mayes, 213 Va. 633, 194 S.E.2d 707 (1973).</li>
<li>b. Except as prohibited by law, records and papers filed in civil suits are public records upon filing. Va. Code ann. § 17.1-208. However, access to military discharge certificates is limited. Va. Code ann. § 17.1-265.</li>
<li>c. Court records, including applications to carry a concealed weapon, are public records unless otherwise excluded by law or court order. 1982-1983 Va. Op. atty. gen. 723 (Feb. 25, 1983). For records to be sealed, the party must make specific factual findings to support a decision to seal, mere conclusions are not sufficient. Perreault v. The Free Lance-Star, 276 Va. 375, 389-390, 666 S.E.2d 352, 360 (Va. 2008).</li>
</ol>
</li>
</ol>
</li>
<li>C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure.
In Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991) the Supreme Court of Virginia invoked a rule of executive privilege to protect the governor from having to release records of his telephone calls.</li>
<li>D. are segregable portions of records containing exempt material available?
The act requires that any reasonably segregable portion of an official record be provided. additionally, a written explanation must be given to the citizen as to why portions of the record are not available, making specific reference to the code section that exempts the withheld documents. Va. Code ann. § 2.2-3704(B)(2).</li>
<li>E. Homeland Security Measures.
Virginia Code § 2.2-3705.2 generally addresses excluded records relating to public safety, with several subsections that relate to homeland security.
The governor or agencies acting on his behalf may receive information, voluntarily submitted from both public and nonpublic entities, related to the protection of the nation’s critical infrastructure sectors and components that are located in Virginia or affect the health, safety, and welfare of the citizens of Virginia. information submitted by any public or nonpublic entity in accordance with the procedures set forth in § 2.2-3705.2 shall not be disclosed unless: (1) it is requested by law enforcement authorities in furtherance of an official investigation or the prosecution of a criminal act; (2) the agency holding the record is served with a proper judicial order; or (3) the agency holding the record has obtained the written consent to release the information from the entity voluntarily submitting it. Va. Code ann. § 44-146.22(B).
Virginia Code § 44-146.18 limits disclosure of assessments and preparedness plans to prevent, respond to, and recover from all disasters including acts of terrorism.
</li>
</ol>
</li>
<li>iii. STATE LAW ON ELECTRONIC RECORDS
<ol class="sub-ol">
<li>A. Can the requester choose a format for receiving records?
Public bodies “shall make reasonable efforts” to reach an agreement with the requester as to the format in which to provide the records. if the nonexempt records are maintained in an electronic database, the public body shall produce them in any tangible medium identified by the requester, including posting the records on a Web site or delivering them through e-mail, if that medium is used by the public body in the regular course of business. Va. Code ann. § 2.2-3704(g).
<li>B. Can the requester obtain a customized search of computer databases to fit particular needs?
Public bodies must produce nonexempt computer records, but are not required to use a format not regularly utilized by the producing body. They must make reasonable efforts to produce information as agreed to with the requester at a reasonable cost. Excision of exempt data fields does not constitute the creation of a new record. Va. Code ann. § 2.2-3704.g.</li>
<li>C. Does the existence of information in electronic format affect its openness?
no. Official records maintained by a public body on a computer or other electronic data processing system shall be made available to the public at reasonable costs. Va. Code ann. § 2.2-3704(g).</li>
<li>D. How is e-mail treated?
<ol class="sub-sub-ol">
<li>1. Does e-mail constitute a record?
Electronic mail falls within the definition of “public records” and is subject to disclosure. Va. Code ann. § 2.2-3701.</li>
<li>2. Public matter on government e-mail or government hardware
The subject matter determines whether the email qualifies as a public record, regardless of whether it is on public or private hardware. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>3. Private matter on government e-mail or government hardware
The subject matter determines whether the email qualifies as a public record, regardless of whether it is on public or private hardware. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>4. Public matter on private e-mail
The subject matter determines whether the email qualifies as a public record, regardless of whether it is on a public or private email account. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>5. Private matter on private e-mail
The subject matter determines whether the email qualifies as a public record, regardless of whether it is on public or private hardware. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
</ol>
</li>
<li>E. How are text messages and instant messages treated?
<ol class="sub-sub-ol">
<li>1. Do text messages and/or instant messages constitute a record?
Text messages and instant messages fall within the definition of “public record” and are subject to disclosure. Va. Code ann. § 2.2-3701.</li>
<li>2. Public matter message on government hardware.
In the analogous situations of emails, it is the subject matter of the message that determines whether it is a public record. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>3. Private matter message on government hardware.
In the analogous situations of emails, it is the subject matter of the message that determines whether it is a public record. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>4. Public matter message on private hardware.
In the analogous situations of emails, it is the subject matter of the message that determines whether it is a public record. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>5. Private matter message on private hardware.
In the analogous situations of emails, it is the subject matter of the message that determines whether it is a public record. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
</ol>
</li>
<li>F. How are social media postings and messages treated?
Electronic messages fall within the definition of “public records” and is subject to disclosure. Va. Code ann. § 2.2-3701. in the analogous situations of emails, it is the subject matter of the message that determines whether it is a public record. Burton v. Mann, 74 Va. Cir. 471, 474 (2008).</li>
<li>G. How are online discussion board posts treated?
no special treatment. general principles of access under the act should apply based on purpose and content of discussion.</li>
<li>H. Computer software
<ol class="sub-sub-ol">
<li>1. is software public?
Vendor proprietary information software which may be in the official records of a public body can be exempt from disclosure. Va. Code ann. § 2.2-3705.1(6). additionally, computer software developed by or for a state agency, state-supported institution of higher education or political subdivision is exempt. Va. Code ann. § 2.2-3705.1(7).</li>
<li>2. is software and/or file metadata public?
Metadata has no special treatment by statute. Presumably metadata related to excluded proprietary software is also excluded. Metadata related to other data files should be subject to general rules of access based on subject matter.
<li>I. How are fees for electronic records assessed? Official records maintained by a public body on a computer or other electronic data processing system shall be made available to the public at reasonable costs. Va. Code ann. § 2.2-3704(g).</li>
<li>J. Money-making schemes.
<ol class="sub-sub-ol">
<li>1. revenues.
A public body may make reasonable charges that do not exceed the actual cost of producing the records. The law specificly forbids a public body from imposing extraneous, intermediary or surplus fees or expenses to recoup the general costs associated with creating and keeping the records. Va. Code. ann. § 2.2-3704(F).</li>
<li>2. geographic information Systems.
requests for geographic information system records can be provided at a reasonable cost. The owner of the land is exempt from this reasonable cost provision. The reasonable cost means not to exceed the actual cost of production with the exception that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, which encompass a contiguous area greater than 50 acres. all costs related with this section must be estimated to advance to the requestor. Va. Code. ann. § 2.2-3704(F).</li>
</ol>
</li>
<li>K. On-line dissemination.
if the nonexempt records are maintained in an electronic database, the public body shall produce them in any tangible medium identified by the requester, including posting the records on a Web site or delivering them through e-mail, if that medium is used by the public body in the regular course of business. Va. Code ann. § 2.2-3704(g).</li>
</ol>
</li>
<li>IV. RECORD CATEGORIES -- OPEN OR CLOSED
<li>A. autopsy reports.
Va. Code ann. § 32.1-285 requires filing of all autopsy reports with the Chief Medical Examiner, with copies to the judge or Commonwealth’s attorney requesting the report. The Chief Medical Examiner may release such reports to the appropriate Commonwealths’ attorney or law enforcement agency investigating the death. Confidential records and information obtained from private and public entities and provided to the Office of the Chief Medical Examiner during the course of a death investigation shall remain confidential and shall not be subject to the provisions of the act. Va. Code ann. § 32.1-283.4(a).</li>
<li>B. administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)
<ol class="sub-sub-ol">
<li>1. rules for active investigations.
Exceptions to disclosure for active investigations can be found in Va. Code ann. § 2.2-3705.3. generally, records of active investigations are exempt</li>
<li>2. rules for closed investigations. Exceptions to disclosure for investigations can be found in Va. Code ann. § 2.2-3705.3. generally, records for closed investigations are not exempt from disclosure as long as the identifying information for claiminants and others providing information is removed.</li>
</ol>
</li>
<li>C. Bank records.
Examination reports and information furnished to the State Corporation Commission or its divisions concerning any bank, savings institution or credit union, disclosure of which could endanger the safety or security of the entity — other than those required by law to be made public — are open only to specifically identified officials. Va. Code ann. § 6.2-101. Banks, however, must report their financial condition periodically to the State Corporation Commission. This report is public. Va. Code ann. § 6.2-907.</li>
<li>D. Budgets.
Budgets fall within the definition of “public records” and are subject to disclosure. Va. Code ann. § 2.2-3701. But there may be a specific exemption for certain administrative records. See Va. Code ann. § 2.2-3705.7.
<li>E. Business records, financial data, trade secrets.
The following are exempt from disclosure: tax returns (Va. Code ann. § 2.2-3705.7(1)); proprietary information of the Virginia Port authority (Va. Code ann. § 2.2-3705.6(1)); vendor proprietary software (Va. Code ann. § 2.2-3705.1(6)); colleges and universities — educational research records (Va. Code ann. § 2.2-3705.4(4)); industrial development financial statements (Va. Code ann. § 2.2-3705.6(2)); bond owners (Va. Code ann. § 2.2-3705.7(5)); information provided to a public body for the purpose of business, trade and tourism development or retention (Va. Code ann. § 2.2.-3705.6(3)); toxic substances (Va. Code ann. § 2.2-3705.6(4)); computer software (Va. Code ann. § 2.2-3705.1(7)) and fisheries data (Va. Code ann. § 2.2-3705.6(5)); customer account information held by a public utility. Va. Code ann. § 2.2-3705.7(7).
although distress warrant information related to taxes may be disclosed, warrant information pertaining to transactions, property, income or business of a delinquent taxpayer is confidential and not subject to disclosure, unless the information is entered on public assessment books or published in the line of duty. 1999 Va. Op. atty. gen. 85 (november 22, 1999).
Financial records filed with a municipal purchasing department are open to inspection. 1978-1979 Va. Op. atty. gen. 315 (January 23, 1979). What constitutes a “financial statement” is undefined, so common usage determines its meaning. 1984-1985 Va. Op. atty. gen. 425 (July 24, 1984).
Trade secrets. The following may be exempt as trade secrets: building plans (Va. Code ann. § 2.2-3705.2(2)); certain records of the Department of rail and Public Transportation (Va. Code ann. § 2.2-3705.6(9)); proprietary and commercial records provided by private transportation and construction businesses (Va. Code ann. § 2.2-3705.6(11)); private bids for government contracts (Va. Code ann. § 2.2-3705.6(10 & 13); and CMrS information submitted to the Wireless Carrier E-911 Cost recovery Subcommittee (Va. Code ann. § 2.2-3705.6(16)); certain records of the Virginia Military advisory Council, the Virginia national Defense industrial authority, or a local or regional military affairs organization appointed by a local governing body (Va. Code. ann. § 2.2-2705.2(12); certain records provided to the Virginia resources authority (Va. Code. ann. § 2.2-2705.6(12)); certain records of the Department of Minority Business Enterprise (Va. Code. ann. § 2.2-2705.6(20)); certain records of the Virginia Department of Transporation (Va. Code. ann. § 2.2-2705.6(22)); certain records of the Virginia Tobacco indemnification and Community revitalization Commission (Va. Code. ann. § 2.2-2705.6(23)); certain information provided to the Virginia College Savings Plan (Va. Code. ann. §2.2-3705.7(25).</li>
<li>F. Contracts, proposals and bids.
Disclosure of records relating to procurement transactions by state agencies is comprehensively addressed in the Virginia Public Procurement act. Va. Code ann. § 2.2-4342. Contracts are generally open for inspection after they are awarded. The act has a broad exclusion for records relating to public-private partnerships under the Public-Private Transportation act of 1995 and the Public-Private Education Facilities and infrastructure act of 2002. Va. Code ann. 2.2-3705.6(11). Contracts between public officers and a public body may not be withheld. However, contracts settling public employee employment disputes are held confidential as personnel records. Va. Code ann. § 2.2-3705.8(a)(i).
Cost estimates prepared for a public body engaged in procurement may be withheld. Va. Code ann. § 2.2-4342(B); see also Va. Code ann. § 2.2-3705.7(4)(cost estimates of Department of Transportation).</li>
<li>G. Collective bargaining records.There is no specific law, but to the extent records are prepared exclusively for a properly held executive session, they are exempt from required disclosure.</li>
<li>H. Coroners reports.
See discussion of Chief Medical Examiner above.</li>
<li>I. Economic development records.
Records, voluntarily provided by a private business pursuant to a promise of confidentiality from a public body or prepared by the public body where competition or bargaining is involved, used for the purpose of business, trade and tourism development or rentention are exempt. Va. Code. ann. § 2.2-3705.6(3).</li>
<li>J. Election records.
<ol class="sub-sub-ol">
<li>1. Voter registration records.
registration records shall be opened to inspection by any registered voter. Va. Code ann. § 24.2-444. However, no voter registration record containing an individual’s Social Security number or birthdate shall be made available for inspection or copying by anyone. Id. Once the Social Security number has been redacted, the registration list is open for public inspection. Rivera v. Long, no. 070274 (Va. Feb. 8, 2008). no voter registration record containing an individual’s residence address shall be made available for inspection or copying. Id. registration records are open for inspection, but the Code does not guarantee the right to copy those records. Rivera v. Long, no. 070274 (Va. Feb. 8, 2008).</li>
<li>2. Voting results.
The provisions of the act will not apply until the results have been finally determined. Va. Code ann. § 24.2-677. High school election votes need not be disclosed. Wall v. Fairfax County Sch. Bd., 252 Va. 156, 475 S.E.2d 803 (1996).</li>
</ol>
</li>
<li>K. gun permits.
The Department of State Police possesses the discretionary authority to release the names of concealed carry handgun permittees under the act. But identifying information of crime victims and witnesses on the list should not be disclosed. Per § 18.2-308(K) information from the concealed carry permit database should be limited to law-enforcement personnel for investigative purposes. 2007 Va. ag LEXiS 12 (april 6, 2007).</li>
<li>L. Hospital reports.
Publicly funded hospitals may report disciplinary actions against health professionals and certain disorders (e.g., drug addiction) affecting health professionals. 1980-1981 Va. Op. atty. gen. 189 (April 15, 1981). However, records of an active investigation are exempt from disclosure. Hospital authorities must report their activities annually to the mayor of the city they serve. These reports are public. Va. Code ann. § 15.2-5318.
Patient records. These are exempt from required disclosure under § 2.2-3705.5(1) and the government Data Collection and Dissemination Practices act. Va. Code ann. § 2.2-3800 et seq.</li>
<li>M. Personnel records.
Personnel records concerning identifiable individuals are generally excluded. Va. Code ann. § 2.2-3705.1(1). Contracts between public officers and a public body may not be withheld. Va. Code ann. § 2.2-3705.8(a)(i). Personnel records of a terminated employee must be produced under the act where that employee waives all claims of confidentiality. Concerned Citizens for Educational Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 212 (1997).
<ol class="sub-sub-ol">
<li>1. Salary.
Official salary or rates of pay of all employees receiving in excess of $10,000 annually are open to the public. Va. Code ann. § 2.2-3705.8.a.</li>
<li>2. Disciplinary records.
See above for personnel records generally. in addition, contracts settling personnel diputes are excluded form public access. Va. Code ann. § 2.2-3705.8.a.</li>
<li>3. applications.
applications for admission to examinations or for licensure of professions regulated by the Department of Health Professions are excluded. Va. Code ann. § 2.2-3705.5.2.</li>
<li>4. Personally identifying information.
information protected by Virginia privacy statutes, including SSn, are excluded, as are email addresses. Va. Code ann. § 2.2-3705.1.10.</li>
<li>5. Expense reports.
records of all allowances or reimbursements paid to any officer, official or employee of a public body are open. Va. Code ann. § 2.2-3705.8.</li>
</ol>
</li>
<li>N. Police records.
<ol class="sub-sub-ol">
<li>1. accident reports.
no special rule for accident reports. general principles of access under Va. Code ann. § 2.2-3706 apply.</li>
<li>2. Police blotter.
“Criminal incident information” for felony offenses, including a description of the criminal activity reported, the date and general location of the alleged crime, the identity of the investigating officer, and general description of the injuries, must be released upon request unless the release is likely to jeopardize an ongoing investigation or prosecution, or the safety of an individual, or result in the destruction of evidence, or could cause a suspect to flee. Va. Code. ann. § 2.2-3706(B).</li>
<li>3. 911 tapes.
911 records are presumed open under Va. Code ann. § 2.2-3706.g., but personal, medical or financial information is those records may be withheld if the safety or privacy of any person is jeopardized</li>
<li>4. investigatory records.
<ol class="sub-sub-sub-ol">
<li>a. rules for active investigations.
“Criminal investigative files,” including any documents and information including complaints, court orders, memoranda, notes, and other records and evidence relating to a criminal investigation or prosecution are exempt from the act. Va. Code. ann. § 2.2-3706(F)(1).</li>
<li>b. rules for closed investigations.
The act makes no distinction between active and closed investigations. Va. Code. ann. § 2.2-3706(a).</li>
</ol>
</li>
<li>5. arrest records.
arrest records are subject to disclosure except that noncriminal incident or other investigative reports or materials that contain identifying information of a personal, medical or financial nature may be withheld where the release of such information would jeopardize the safety or privacy of any person. Va. Code ann. § 2.2-3706(g).</li>
<li>6. Compilations of criminal histories.
no special rule.</li>
<li>7. Victims.
The identity of any victim need not but may be disclosed unless disclosure is prohibited under § 19.2-11.2. Va. Code. ann. §2.2-3706(D).</li>
<li>8. Confessions.
no special rule.</li>
<li>9. Confidential informants.
The identity of any witness need not but may be disclosed unless disclosure is prohibited under § 19.2-11.2. Va. Code. ann. §2.2-3706(D). But the identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed. Va. Code. ann. § 2.2-3706(E).</li>
<li>10. Police techniques.
The identity of any investigative techiques or procedures need not but may be disclosed. Va. Code. ann. § 2.2-3706(D).</li>
<li>11. Mug shots.
Adult arrestee photographs are not subject if at the time it is necessary to avoid jeopardizing an investigation of a felony crime. Once the necessary no longer exists, the exemption does not apply. Va. Code. ann. § 2.2-3706(F)(2).</li>
<li>12. Sex offender records.
Sex Offender registery records are excluded from the act, but the Code does require information to be posted to the internet pursuant to §9.1-913. Va. Code. ann. § 2.2-3706(H).</li>
<li>13. Emergency medical services records.
Information and records collected for the designation and verification of trauma centers and other speciality care centers within the Statewide Emergency Services Systeem and Services are exempt.</li>
</ol>
</li>
<li>O. Prison, parole and probation reports.
All records of persons imprisoned in penal institutions in Virginia are exempt, provided the records relate to imprisonment. Va. Code. ann. §2.2-3706(F)(6). additionally, all records of adults under probation or parole supervision are exempt. Va. Code. ann. §2.2-3706(F)(8).</li>
<li>P. Public utility records.
Customer account information is not available. Va. Code ann. § 2.2-3705.7(7).</li>
<li>Q. real estate appraisals, negotiations.
<ol class="sub-sub-ol">
<li>1. appraisals.
Appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease. Va. Code ann. § 2.2-3701.1(8).</li>
<li>2. negotiations.
Records compiled exclusively for use in a closed meeting are excluded. Va. Code ann. § 2.2-3705.1.5. Under Va. Code ann. § 2.2-3711.a.3, a closed meeting may be held to discuss acquisition of real property for a public purpose, or disposition of real property, where open discussin would adversely affect the bargaining positon or negotiating strategy of the public body.</li>
<li>3. Transactions.
Records of completed transactions are presumed open.</li>
<li>4. Deeds, liens, foreclosures, title history.
Such records are presumed open when in the possession of a public bocy subject to the act. access to such records when located in the Office of a Clerk of a Virginia Circuit court are open pursuant to Va. Code ann. § 17.1-208.</li>
<li>5. Zoning records.
The act makes no specific exemption for zoning records, except that names and identifying information of complainants of zoning enforcement complaints are exempt. Va. Code ann. § 2.2-3705.3(10).</li>
</ol>
</li>
<li>R. School and university records.
“Scholastic records” means those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution. Va. Code ann. § 2.2-3701. Scholastic records containing indentifiable information are exempt from the act, but the subjects of the records or the subject’s guardian will have access to the records. Va. Code ann. § 2.2-3705.4.
<ol class="sub-sub-ol">
<li>1. athletic records.
See above. no special rule.</li>
<li>2. Trustee records.
See above. no special rule.
<li>3. Student records.
See above.</li>
<li>4. Other.
See Va. Code ann. § 2.2-3705.4. generally for several exclusions relating to fundraising, letters of recommendation and certain rules specific to named universities, state medical schools and the Virginia College Savings Plan.</li>
</ol>
</li>
<li>S. Vital statistics.
Vital statistics information including birth certificates, death certificates and marriage/divorce records shall be protected and not subject to public disclosure. Exceptions to this rule include valid and substantial research purposes and when a grandparent has demonstrated a need to access a grandchild’s records. These records convert to public records either when 100 years of elapsed since the date of birth or 50 years since the date of death, marriage or divorce. Va. Code ann. § 32.1-271.
<ol class="sub-sub-ol">
<li>4. infectious disease and health epidemics.
(why is this labeled number 04?)
Patient level data that is collected for health purposes will be exempt from the act and publicly released data must be a format so to ensure patients cannot be identified. Va. Code ann. § 32.1-276.9.</li>
</ol>
</li>
</ol>
</li>
<li>V. PROCEDURE FOR OBTAINING RECORDS
<ol class="sub-ol">
<li>A. How to start.
All state public bodies created in the executive branch of state government and subject to the provisions of the VFOia must provide to the public upon request: (1) an explanation of the rights of a requester, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with the VFOia; (2) contact information for the person designated by the public body to assist a requester in making a request or to respond to requests; and (3) a general description of the types of records maintained by that public body; (4) a general description of any exemptions in the law that permit or require records to be withheld from release; and (5) any policy the public body has concerning the type of public records it routinely withholds from release as permitted by the VFOia. in addition, that information must also be posted on the internet. Virginia Code § 2.2-3704.1(a).
<ol class="sub-sub-ol">
<li>1. Who receives a request?
The request should be directed to the agency that is the custodian of the records that are being sought. The governor is not the custodian of records for each and every public body in the Commonwealth. Davis v. Allen, 44 Va. Cir. 237 (1997).</li>
<li>2. Does the law cover oral requests?
Yes, the act does not mandate that the request be written. it is advisable, however, that the request be written if the requester anticipates a need to enforce his or her rights under the act.
<ol class="sub-sub-sub-ol">
<li>a. arrangements to inspect & copy.
requests for records must identify the requested records with reasonable specificity. The requester need not make reference to the act. The public body shall reply within five (5) working days. Va. Code ann. § 2.2-3704(B). all public records shall be open to inspection and copying during regular business hours of the custodian of such records. Va. Code ann. § 2.2-3704(a). The public body may make reasonable charges for the actual cost of duplicating the records. Va. Code ann. § 2.2-3704(F).</li>
<li>b. if an oral request is denied:
The act does not distinguish oral from written requests. The requester may pursue the remedies outlined in the act upon denial. See Va. Code ann. § 2.2-3714. if litigation is contemplated, it is wise to resubmit the request in writing. in the interest of establishing an unambiguous record, written follow up to a denied oral request is recommended.</li>
</ol>
</li>
<li>3. Contents of a written request.
<ol class="sub-sub-sub-ol">
<li>a. Description of the records.
The act requires that the request shall identify the requested records with reasonable specificity. Va. Code ann. § 2.2-3704(B). Fishing expeditions will not be allowed.</li>
<li>b. need to address fee issues.
The act does not require that fees be mentioned in the request. However, if requesting an estimate for search and copying charges, it is best to put it in writing. if the requester asks for an estimate, one must be provided. Va. Code ann. § 2.2-3704(F).
If a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. Va. Code ann. § 2.2-3704(H).</li>
<li>c. Plea for quick response.
not addressed.</li>
<li>d. Can the request be for future records?
not addressed, but it is likely that a court would find it implicit that the act does not contemplate requests for records that are generated at a future date.</li>
<li>e. Other.
The right to inspect and copy records, including future access to records, can be waived. Putnam v. City of Winchester, 47 Va. Cir. 249 (1998). an employee may waive her right to keep her personnel records confidential. Concerned Citizens for Educational Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209 (1997).</li>
</ol>
</li>
</ol>
</li>
<li>B. How long to wait.
Five Day Initial Response: The custodian must provide an initial response within five working days of receipt of the request, informing the requester of one of the following: The requested records will be provided. Va. Code ann. § 2.2-3704(B).
all of the requested records are exempt from disclosure. a written explanation must be provided explaining why the records are unavailable, making specific reference to the relevant code provision. Va. Code ann. § 2.2-3704(B)(1).
The requested records that are not exempt will be provided. a written explanation must be provided explaining why some records are being withheld and must name the specific code section authorizing the exemption. Va. Code ann. § 2.2-3704(B)(2).
The requested records could not be found or do not exist. Va. Code ann. § 2.2-3704(B)(3).
it is practically impossible to provide the requested documents or to determine whether they are available within the five working days prescribed and, therefore, the custodian shall have an additional seven (7) working days to provide one of the three aforementioned responses.
Va. Code ann. § 2.2-3704(B)(4).
Responding with an answer not found in the act does not constitute a response for the act’s purposes. Fenter v. Norfolk Airport Authority, 274 Va. 524 (2007)(informing the requester that the request has been send to a federal authority is insufficient).
Additional Time to Respond: The custodian may obtain an additional seven (7) days pursuant to § 2.2-3704(B)(4) as long as he provides an initial response within five days. The custodian also may petition the appropriate court for additional time if there is an extraordinary volume of records requested and a response within the time limit will prevent the public body from meeting its operational responsibilities. Va. Code ann. § 2.2-3704(C).
<ol class="sub-sub-ol">
<li>1. Statutory, regulatory or court-set time limits for agency response.
not addressed.</li>
<li>2. informal telephone inquiry as to status.
not addressed, but not prohibited.</li>
<li>3. is delay recognized as a denial for appeal purposes?
a failure to respond to a request shall be deemed a denial and constitute a violation of the act. Va. Code ann. § 2.2-3704(E).</li>
<li>4. any other recourse to encourage a response.
not addressed.</li>
</ol>
</li>
<li>C. Administrative Appeal.
The act has no provision for an administrative appeal. informal appeals to a public body’s chief executive officer or attorney are encouraged.
<ol class="sub-sub-ol">
<li>AGAIN OUT OF SEQUENCE...???</li>
<li>2. To whom is an appeal directed?</li>
<li>4. Contents of appeal letter.</li>
</ol>
</li>
<li>D. Court Action.
<ol class="sub-sub-ol">
<li>1. Who may sue?
Any citizen of the Commonwealth, including the Commonwealth’s attorney, who has been denied the rights and privileges under the act. Va. Code ann. § 2.2-3713(a)</li>
<li>2. Priority.
Suits to enforce the provisions of the act must be heard within seven days of filing. However, if the court is not in its regular term, the hearing must be given precedence over all other cases which are not otherwise given precedence. Va. Code ann. § 2.2-3713(C).</li>
<li>3. Pro se.
The act does not require that a requester to be represented by an attorney. it has been held that a person who appears pro se cannot receive attorney fees for a suit to enforce the act; however, he may recover court costs. Fiscella v. ARHA, 50 Va. Cir. 102 (1999). The act overrides Virginia’s general ethical prohibition on the appearance of a corporate party without counsel. Va. Code ann. § 2.2-3713(B).</li>
<li>4. issues the court will address:
In accordance with a greater weight of the evidence standard, the Court will generally determine whether the public body has violated the act by either failing to timely respond to the request or improperly withholding records which are not exempted by the act. See RF&P Corp. v. Little, 247 Va. 309, 440 S.E.2d 908(1994)(standard of proof). The public body bears the burden to prove its entitlement to an exception by a preponderance of the evidence. Va. Code ann. § 2.2-3713(E). “a citizen alleging violation of the rights and privileges afforded by the FOia and seeking relief by mandamus pursuant to Code § 2.2-3713(a) is not required to prove a lack of an adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available.” Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 613 S.E.2d 449 (2005). Request For Injunctive Relief: The Court will determine whether the violation was willful, knowing, and substantial. injunction will not be granted where the procedural violation of the act is minor and unintended. Shenandoah Publishing House Inc. v. Winchester City Council, 37 Va. Cir. 149 (1994). Entitlement to Fees: Where the petitioner has substantially prevailed on the merits of the case, attorneys’ fees and reasonable costs shall be awarded, unless special circumstances make such an award unjust. Va. Code ann. § 2.2-3713(D). See Redinger v. Casteen, 36 Va. Cir. 479 (1995). Imposition of Penalties: The Court will determine whether there has been a willful and knowing violation of the act. if so, a civil penalty will be imposed, as well as possibly a writ of mandamus or injunctive relief. Va. Code ann. § 2.2-3714. RF&P Corporation v. Little, 247 Va. 309, 440 S.E.2d 908 (1994). Penalties will not be assessed where there is a technical violation of the act. Mannix v. Washington County Board of Supervisors, 27 Va. Cir. 397 (1992).</li>
<li>5. Pleading format.
No special pleading format is required that would not be used in a petition for mandamus or for injunctive relief.</li>
<li>6. Time limit for filing suit.
Suit should be filed without unreasonable delay.</li>
<li>7. What court.
Suits brought to enforce the provisions of this act shall be filed in the general district court or the circuit court of the county or city from which the public body has been elected or appointed and in which the denial of rights occurred. Va. Code ann. § 2.2-3713(a). Suits against the state may be brought at the place of the aggrieved party’s residence or in the City of richmond. Id.</li>
<li>8. Judicial remedies available.
The primary remedies are a writ of mandamus or an injunction. The former compels compliance with the act and the latter prohibits noncompliance. Va. Code ann. § 2.2-3713(a). if court finds that the violations were willfully and knowingly made the court will access a civil penalty. Va. Code ann. § 2.2-3714.</li>
<li>9. Litigation expenses.
<ol class="sub-sub-sub-ol">
<li>a. attorney fees.
attorneys’s fees can be awarded where the petitioner substantially prevails and where there are no special circumstances making the award unjust. Va. Code ann. § 2.2-3713(D).</li>
<li>b. Court and litigation costs.
Costs and fees can be awarded where the petitioner substantially prevails and where there are no special circumstances making the award unjust. Va. Code ann. § 2.2-3713(D).</li>
</ol>
</li>
<li>10. Fines.
If the Court finds that the violation was willfully and knowingly made, it will impose upon the member of the public body, in his individual capacity, a civil penalty not less than $250.00 and not more that $1,000.00. The penalty for the second violation shall not be less than $1,000.00 nor more than $2,500.00. Va. Code ann. § 2.2-3714.
<li>11. Other Penalties.
In light of a requester’s repeated filings in the courts over the same matters that repeatedly had been rejected (over five times), the court granted sanctions in the amount of $1500, and costs and fees, but refused to prohibit future filings because the next petition might not be frivolous. Davis v. Allen, 44 Va. Cir. 237, 243 (1997).
<li>12. Settlement, pros and cons.
Settlement of disputes under the act, like settlement of other disputes, is encouraged. Settlement should be without prejudice to future assertions of rights under the act.</li>
</ol>
</li>
<li>E. appealing initial court decisions.
<ol class="sub-sub-ol">
<li>1. appeal routes.
a suit brought in general District Court may be appealed to Circuit Court for a de novo hearing. appeals from Circuit Court are to the Virginia Supreme Court.</li>
<li>2. Time limits for filing appeals.
appeals from general District Court to Circuit Court must be taken within ten days of judgment. Va. Code ann. § 16.1-106. notice of appeal to the Supreme Court from Circuit Court must be filed within 30 days of final judgment. Va. Supreme Court rule 5:17.</li>
<li>3. Contact of interested amici.
The Virginia Press association, P.O. Box C-32015, richmond, Virginia 23261-2015. attn: ginger Stanley, Executive Manager. (804) 798-2053. Virginia First amendment Hotline, c/o Christian & Barton, L.L.P., 909 East Main Street, Suite 1200, richmond, Virginia 23219-3095.
attn: Craig T. Merritt. (804) 697-4100.
The reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.</li>
</ol>
</li>
<li>F. addressing government suits against disclosure.
This issue has not arisen in Virginia. The organizations above are contact points should such a situation arise.
</li>
</ol>
</li>
</ol>
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