16103919D
HOUSE BILL NO. 985
Offered January 13, 2016
Prefiled January 12, 2016
A BILL to amend and reenact §§2.2-3704, 2.2-3705.1 through
2.2-3705.7, 2.2-3711, and 2.2-3713 of the Code of Virginia and to amend the Code
of Virginia by adding a section numbered 2.2-3704.01, relating to the Virginia
Freedom of Information Act; record exclusions; rule of redaction; no weight
accorded to public body's determination.
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Patron-- Yancey
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Committee Referral Pending
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Be it enacted by the General Assembly of Virginia:
1. That §§2.2-3704, 2.2-3705.1 through 2.2-3705.7, 2.2-3711,
and 2.2-3713 of the Code of Virginia are amended and reenacted and that the
Code of Virginia is amended by adding a section numbered 2.2-3704.01 as
follows:
§2.2-3704. Public records to be open to inspection; procedure
for requesting records and responding to request; charges; transfer of records
for storage, etc.
A. Except as otherwise specifically provided by law, all
public records shall be open to inspection and copying by any citizens of the
Commonwealth during the regular office hours of the custodian of such records.
Access to such records shall not be denied to citizens of the Commonwealth,
representatives of newspapers and magazines with circulation in the
Commonwealth, and representatives of radio and television stations broadcasting
in or into the Commonwealth. The custodian may require the requester to provide
his name and legal address. The custodian of such records shall take all
necessary precautions for their preservation and safekeeping.
B. A request for public records shall identify the requested
records with reasonable specificity. The request need not make reference to
this chapter in order to invoke the provisions of this chapter or to impose the
time limits for response by a public body. Any public body that is subject to
this chapter and that is the custodian of the requested records shall promptly,
but in all cases within five working days of receiving a request, provide the
requested records to the requester or make one of the following responses in
writing:
1. The requested records are being entirely withheld because their release is prohibited by law or the
custodian has exercised his discretion to withhold the records in accordance
with this chapter. Such response shall identify with
reasonable particularity the volume and subject matter of withheld records, and
cite, as to each category of withheld records, the specific Code section that
authorizes the withholding of the records.
2. The requested records are being provided in part and are
being withheld in part because the release of part
of the records is prohibited by law or the custodian has exercised his
discretion to withhold a portion of the records in accordance with this chapter.
Such response shall identify with reasonable particularity the subject matter
of withheld portions, and cite, as to each category of withheld records, the
specific Code section that authorizes the withholding of the records. When a portion of a requested record is withheld,
the public body may delete or excise only that portion of the record to which
an exemption applies and shall release the remainder of the record.
3. The requested records could not be found or do not exist.
However, if the public body that received the request knows that another public
body has the requested records, the response shall include contact information
for the other public body.
4. It is not practically possible to provide the requested
records or to determine whether they are available within the five-work-day
period. Such response shall specify the conditions that make a response
impossible. If the response is made within five working days, the public body
shall have an additional seven work days in which to provide one of the four
preceding responses.
C. Any public body may petition the appropriate court for
additional time to respond to a request for records when the request is for an
extraordinary volume of records or requires an extraordinarily lengthy search,
and a response by the public body within the time required by this chapter will
prevent the public body from meeting its operational responsibilities. Before
proceeding with the petition, however, the public body shall make reasonable
efforts to reach an agreement with the requester concerning the production of
the records requested.
D. Subject to the provisions of subsection G, no public body
shall be required to create a new record if the record does not already exist.
However, a public body may abstract or summarize information under such terms
and conditions as agreed between the requester and the public body.
E. Failure to respond to a request for records shall be deemed
a denial of the request and shall constitute a violation of this chapter.
F. A public body may make reasonable charges not to exceed its
actual cost incurred in accessing, duplicating, supplying, or searching for the
requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses
to recoup the general costs associated with creating or maintaining records or
transacting the general business of the public body. Any duplicating fee
charged by a public body shall not exceed the actual cost of duplication. The
public body may also make a reasonable charge for the cost incurred in
supplying records produced from a geographic information system at the request
of anyone other than the owner of the land that is the subject of the request.
However, such charges shall not exceed the actual cost to the public body in
supplying such records, except 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, for such maps or portions thereof, which encompass a contiguous
area greater than 50 acres. All charges for the supplying of requested records
shall be estimated in advance at the request of the citizen.
G. Public records maintained by a public body in an electronic
data processing system, computer database, or any other structured collection
of data shall be made available to a requester at a reasonable cost, not to
exceed the actual cost in accordance with subsection F. When electronic or
other databases are combined or contain exempt and nonexempt records, the
public body may provide access to the exempt records if not otherwise prohibited
by law, but shall provide access to the nonexempt records as provided by this
chapter.
Public bodies shall produce nonexempt records maintained in an
electronic database in any tangible medium identified by the requester,
including, where the public body has the capability, the option of posting the
records on a website or delivering the records through an electronic mail
address provided by the requester, if that medium is used by the public body in
the regular course of business. No public body shall be required to produce
records from an electronic database in a format not regularly used by the
public body. However, the public body shall make reasonable efforts to provide
records in any format under such terms and conditions as agreed between the requester
and public body, including the payment of reasonable costs. The excision of
exempt fields of information from a database or the conversion of data from one
available format to another shall not be deemed the creation, preparation, or compilation of a new
public record.
H. In any case where 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. The deposit shall be credited toward the final cost of
supplying the requested records. The period within which the public body shall
respond under this section shall be tolled for the amount of time that elapses
between notice of the advance determination and the response of the requester.
I. 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.
J. In the event a public body has transferred possession of
public records to any entity, including but not limited to any other public
body, for storage, maintenance, or archiving, the public body initiating the
transfer of such records shall remain the custodian of such records for
purposes of responding to requests for public records made pursuant to this
chapter and shall be responsible for retrieving and supplying such public
records to the requester. In the event a public body has transferred public
records for storage, maintenance, or archiving and such transferring public
body is no longer in existence, any public body that is a successor to the
transferring public body shall be deemed the custodian of such records. In the
event no successor entity exists, the entity in possession of the public
records shall be deemed the custodian of the records for purposes of compliance
with this chapter, and shall retrieve and supply such records to the requester.
Nothing in this subsection shall be construed to apply to records transferred
to the Library of Virginia for permanent archiving pursuant to the duties
imposed by the Virginia Public Records Act (§42.1-76 et seq.). In accordance
with §42.1-79, the Library of Virginia shall be the custodian of such
permanently archived records and shall be responsible for responding to
requests for such records made pursuant to this chapter.
§2.2-3704.01. Records
containing both excluded and nonexcluded information;
duty to redact.
No provision of this chapter is
intended, nor shall it be construed or applied, to authorize a public
body to withhold a public record in its entirety on the grounds that some
portion of the public record is excluded from disclosure by this chapter or by any
other provision of law. A public record may
be withheld from disclosure in its entirety only to the extent that an
exclusion from disclosure under this
chapter or other provision of law applies to the entire content of the public record.
Otherwise, only those portions of the public record containing
information subject to an exclusion under this
chapter or other provision of law may be withheld, and all portions
of the public record that are not so
excluded shall be disclosed.
§2.2-3705.1. Exclusions to application of chapter; exclusions
of general application to public bodies.
The following records are information contained in a public record is
excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian in his discretion, except
where such disclosure is prohibited by law:. Redaction of information
excluded under this section from a public record shall be conducted in
accordance with §2.2-3704.01.
1. Personnel records containing
information concerning identifiable individuals, except that access shall not
be denied to the person who is the subject thereof. Any person who is the
subject of any personnel record such information and who is 18
years of age or older may waive, in writing, the protections afforded by this
subdivision. If the protections are so waived, the
public body shall open such records for inspection and copying such information shall be disclosed.
2. Written advice of legal counsel to state, regional or local
public bodies or the officers or employees of such public bodies, and any other records
information protected by the attorney-client privilege.
3. Legal memoranda and other work product compiled specifically
for use in litigation or for use in an active administrative investigation
concerning a matter that is properly the subject of a closed meeting under §
2.2-3711.
4. 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 a public body.
As used in this subdivision, "test or examination"
shall include (a) any scoring key for any such test or examination and (b) any
other document that would jeopardize the security of the test or examination.
Nothing contained in this subdivision shall prohibit the release of test scores
or results as provided by law, or limit access to individual records as
provided by law. However, the subject of such employment tests shall be
entitled to review and inspect all records relative to his performance on such
employment tests.
When, in the reasonable opinion of such public body, any such
test or examination no longer has any potential for future use, and the
security of future tests or examinations will not be jeopardized, the test or
examination shall be made available to the public. However, minimum competency
tests administered to public school children shall be made available to the
public contemporaneously with statewide release of the scores of those taking
such tests, but in no event shall such tests be made available to the public
later than six months after the administration of such tests.
5. Records recorded in or compiled exclusively for use in
closed meetings lawfully held pursuant to §2.2-3711. However, no record that
is otherwise open to inspection under this chapter shall be deemed exempt by
virtue of the fact that it has been reviewed or discussed in a closed meeting.
6. Vendor proprietary information software that may be in the official public
records of a public body. For the purpose of this subdivision, "vendor
proprietary information software"
means computer programs acquired from a vendor for purposes of processing data
for agencies or political subdivisions of the Commonwealth.
7. Computer software developed by or for a state agency,
state-supported institution of higher education or political subdivision of the
Commonwealth.
8. 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.
9. Records Information 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 shall prohibit
the disclosure authorize the withholding
of information taken from inactive reports upon expiration of the period of
limitations for the filing of a civil suit.
10. 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 person who is the
subject of the record.
11. 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.).
12. Records Information relating to the
negotiation and award of a specific contract where competition or bargaining is
involved and where the release of such records information would adversely
affect the bargaining position or negotiating strategy of the public body. Such records information
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
information relating to such transactions shall be governed
by the Virginia Public Procurement Act.
13. Those portions
of records that contain account Account numbers or routing information
for any credit card, debit card, or other account with a financial institution
of any person or public body. However, access shall not be denied to the person
who is the subject of the record information. For the purposes
of this subdivision, "financial institution" means any organization
authorized to do business under state or federal laws relating to financial
institutions, including, without limitation, banks and trust companies, savings
banks, savings and loan companies or associations, and credit unions.
§2.2-3705.2. Exclusions to application of chapter; records
relating to public safety.
The following records are information contained in a public record is
excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian in his discretion, except
where such disclosure is prohibited by law:. Redaction of information excluded under
this section from a public record shall be conducted in
accordance with §2.2-3704.01.
1. Confidential records information, including victim
identity, provided to or obtained by staff in a rape crisis center or a program
for battered spouses.
2. Those portions
of Information contained in
engineering and construction drawings and plans submitted for the sole purpose
of complying with the Building Code in obtaining a building permit that if
disclosure of such information would identify
specific trade secrets or other information, the
disclosure of which would that
would be harmful to the competitive position of the owner
or lessee. However, such information shall be exempt only until the building is
completed. Information relating to the safety or environmental soundness of any
building shall not be exempt from disclosure.
Those portions
of Information contained in 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 if disclosure of which such information
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. In order for the information to be
excluded from mandatory disclosure, the
owner or lessee of such property, equipment,
or system in writing shall
(i) invokes invoke
the protections of this paragraph; (ii) identifies identify the drawings, plans,
or other materials to be protected; and (iii) states state the reasons why
protection is necessary.
Nothing in this subdivision shall prevent
the disclosure authorize the withholding
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.
3. Documentation or other
information Information that 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.
4. Plans and
information to prevent or respond Information concerning the prevention or response
to terrorist activity or cyber attacks, the disclosure of which
would jeopardize the safety of any person, including (i)
critical infrastructure sector or structural components; (ii) vulnerability
assessments, operational, procedural, transportation, and tactical planning or
training manuals, and staff meeting minutes or other records;
(iii) engineering or architectural records plans or drawings, or records containing information
derived from such records, to the
extent plans or drawings; and (iv)
information not lawfully available to the public regarding specific
cybersecurity threats or vulnerabilities or security plans and measures of an
entity, facility, building,
structure, information technology system, or software program if
disclosure of such records information would (a)
reveal the location or operation of security equipment and systems, elevators,
ventilation, fire protection, emergency, electrical, telecommunications or
utility equipment and systems of any public building, structure or information storage
facility, or telecommunications or utility equipment or systems; and (iv) information not lawfully available to
the public regarding specific cybersecurity threats or vulnerabilities or
security plans and measures of an entity, facility, building structure,
information technology system, or software program or (b) jeopardize
the safety of any person.
The same categories of records of information concerning any
person or entity submitted to a public body for the purpose of antiterrorism
response planning or cybersecurity planning or protection may be withheld from
disclosure if such person or entity in writing (a) (1) invokes the protections of
this subdivision, (b) (2) identifies with
specificity the records or portions thereof information for which
protection is sought, and (c) (3) states with reasonable
particularity why the protection of such records information from public
disclosure is necessary to meet the objective of antiterrorism or cybersecurity
planning or protection. Such statement shall be a public record and shall be
disclosed upon request.
Nothing in this subdivision shall be construed to prohibit the disclosure authorize the withholding of records
information relating to the structural or environmental
soundness of any building, nor shall it prevent the disclosure authorize the withholding 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.
5. Information that would disclose the security aspects of a
system safety program plan adopted pursuant to 49 C.F.R. Part 659 by the
Commonwealth's designated Rail Fixed Guideway Systems Safety Oversight agency;
and information in the possession of such agency, the release of which would
jeopardize the success of an ongoing investigation of a rail accident or other
incident threatening railway safety.
6. Engineering Information contained in
engineering and architectural drawings, operational, procedural,
tactical planning or training manuals, or staff meeting minutes or other records, the disclosure of which if
disclosure of such information would (i) reveal surveillance
techniques, personnel deployments, alarm or security systems or technologies,
or operational and transportation plans or protocols, to the
extent such disclosure would or (ii)
jeopardize the security of any governmental facility, building, or structure or the safety of
persons using such facility, building, or
structure.
7. Security Information concerning security
plans and specific assessment components of school safety audits, as provided
in §22.1-279.8.
Nothing in this subdivision shall be construed to prohibit the disclosure authorize the withholding of records
information 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.
8. [Expired.]
9. Records of
the Commitment Review Committee Information 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 held by the Commitment Review Committee;
except that in no case shall records information identifying the
victims of a sexually violent predator be disclosed.
10. 9. 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 shall prevent
the release authorize the withholding
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.
For the purposes of this subdivision,
"subscriber data" means the
name, address, telephone number, and any other information identifying a
subscriber of a telecommunications carrier.
11. 10. 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 shall prevent
the release authorize the withholding
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.
For the purposes of this
subdivision, "subscriber data" means the
name, address, telephone number, and any other information
identifying a subscriber of a telecommunications carrier.
12. Records of
11. Information held by the
Virginia Military Advisory Council or any commission created by executive order
for the purpose of studying and making recommendations regarding preventing
closure or realignment of federal military and national security installations
and facilities located in Virginia and relocation of such facilities to
Virginia, or a local or regional military affairs organization appointed by a
local governing body, to the
extent such records (i) contain
information relating to that
would (i) reveal strategies under consideration or development by the
Council or such commission or organizations to prevent the closure or
realignment of federal military installations located in Virginia or the
relocation of national security facilities located in Virginia, to limit the
adverse economic effect of such realignment, closure, or relocation, or to seek
additional tenant activity growth from the Department of Defense or federal
government or (ii) disclose trade secrets, as defined in the Uniform Trade
Secrets Act (§59.1-336 et seq.), provided to the Council or such commission or
organizations in connection with their work.
In order to invoke the trade secret protection provided by
clause (ii), the submitting entity shall, in writing and at the time of
submission (a) invoke this exclusion, (b) identify with specificity the
information for which such protection is sought, and (c) state the reason why
such protection is necessary. Nothing in this subdivision shall be construed to
authorize the withholding of all or part of any record, other than a trade
secret that has been specifically identified as required by this subdivision,
after the Department of Defense or federal agency has issued a final,
unappealable decision, or in the event of litigation, a court of competent
jurisdiction has entered a final, unappealable order concerning the closure,
realignment, or expansion of the military installation or tenant activities, or
the relocation of the national security facility, for which records are sought.
13.
Documentation or other information 12. 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 systems,
and the assessment of risks and vulnerabilities of those controls, including
the annual assessment of internal controls mandated by the State Comptroller, the if
disclosure of which such information would
jeopardize the security of the Commonwealth's financial assets. However,
records relating to the investigation of and findings concerning the soundness
of any fiscal process shall be disclosed in a form that does not compromise
internal controls. Nothing in this subdivision shall be construed to prohibit
the Auditor of Public Accounts or the Joint Legislative Audit and Review
Commission from reporting internal control deficiencies discovered during the
course of an audit.
14.
Documentation or other information 13. Information relating
to the Statewide Agencies Radio System (STARS) or any other similar local or
regional public safety communications system that (i) describes the design,
function, programming, operation, or access control features of the overall
system, components, structures, individual networks, and subsystems of the
STARS or any other similar local or regional communications system or (ii)
relates to radio frequencies assigned to or utilized by STARS or any other
similar local or regional communications system, code plugs, circuit routing,
addressing schemes, talk groups, fleet maps, encryption, programming maintained
by or utilized by STARS or any other similar local or regional public safety
communications system; those portions of
engineering and construction drawings and plans that reveal critical structural
components, interconnectivity, security equipment and systems, network
monitoring, network operation center, master sites, ventilation systems, fire
protection equipment, mandatory building emergency equipment, electrical
systems, and other utility equipment and systems related to STARS or any other
similar local or regional public safety communications system; and special event
plans, operational plans, storm plans, or other pre-arranged programming, the if
disclosure of which such information would
(a) reveal surveillance
techniques, personnel deployments, alarm or security systems or technologies,
or operational and transportation plans or protocols, to the
extent such disclosure would or (b)
jeopardize the security of any governmental facility, building, or structure or
the safety of any person.
15. Records of
a 14. Information
concerning a salaried or volunteer Fire/EMS
company or Fire/EMS department, to the
extent that the records disclose if disclosure of such information would
reveal the telephone numbers for cellular telephones,
pagers, or comparable portable communication devices provided to its personnel
for use in the performance of their official duties.
16. Records of
hospitals and nursing homes regulated by the Board of Health pursuant to
Chapter 5 (§32.1-123 et seq.) of Title 32.1 provided to the Department of
Health, to the extent such records reveal 15. Information
concerning the disaster recovery plans or the evacuation
plans for such facilities
in the event of fire, explosion, natural disaster, or other catastrophic event for hospitals
and nursing homes regulated by the Board of Health pursuant to Chapter 5 (§
32.1-123 et seq.) of Title 32.1 provided to the Department of Health.
Nothing in this subdivision shall be construed to prohibit
the disclosure authorize the withholding
of records
information relating to the effectiveness of executed
evacuation plans after the occurrence of fire, explosion, natural disaster, or
other catastrophic event.
§2.2-3705.3. Exclusions to application of chapter; records
relating to administrative investigations.
The following records are information contained in a public record is
excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian in his discretion, except
where such disclosure is prohibited by law:. Redaction of information excluded
under this section from a public record shall be conducted in accordance with §
2.2-3704.01.
1. (Effective until July 1, 2018)
Confidential records of all
Information relating to investigations of applications applicants for licenses and
permits, and of all licensees and permittees, made by or submitted to the
Alcoholic Beverage Control Board, the Virginia Lottery, the Virginia Racing
Commission, the Department of Agriculture and Consumer Services relating to
investigations and applications pursuant to Article 1.1:1 (§18.2-340.15 et
seq.) of Chapter 8 of Title 18.2, or the Private Security Services Unit of the
Department of Criminal Justice Services.
1. (Effective July 1, 2018)
Confidential records of all
Information relating to investigations of applications applicants for licenses and
permits, and of all licensees and permittees, made by or submitted to the
Virginia Alcoholic Beverage Control Authority, the Virginia Lottery, the
Virginia Racing Commission, the Department of Agriculture and Consumer Services
relating to investigations and applications pursuant to Article 1.1:1 (§
18.2-340.15 et seq.) of Chapter 8 of Title 18.2, or the Private Security
Services Unit of the Department of Criminal Justice Services.
2. Records of active investigations being conducted by the
Department of Health Professions or by any health regulatory board in the
Commonwealth pursuant to §
54.1-108.
3. Investigator notes, and other correspondence and
information, furnished in confidence with respect to an active investigation of
individual employment discrimination complaints made to the Department of Human
Resource Management, to such personnel of any local public body, including
local school boards, as are responsible for conducting such investigations in
confidence, or to any public institution of higher education. However, nothing in this section shall prohibit
the disclosure of information taken from Information contained in
inactive reports shall be disclosed
in a form that does not reveal the identity of charging parties, persons
supplying the information, or other individuals involved in the investigation.
4. Records of active investigations being conducted by the
Department of Medical Assistance Services pursuant to Chapter 10 (§32.1-323 et
seq.) of Title 32.1.
5. Investigative notes and other correspondence and
information furnished in confidence with respect to an investigation or
conciliation process involving an alleged unlawful discriminatory practice under
the Virginia Human Rights Act (§2.2-3900 et seq.) or under any local ordinance
adopted in accordance with the authority specified in §2.2-524, or adopted
pursuant to §15.2-965, or adopted prior to July 1, 1987, in accordance with
applicable law, relating to local human rights or human relations commissions. However, nothing in this section
shall prohibit the distribution of information
taken from Information
contained in inactive reports shall be
disclosed in a form that does not reveal the identity of
the parties involved or other persons supplying information.
6. Records of Information relating to
studies and investigations by the Virginia Lottery 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 information has 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.
7. 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 defined in §2.2-3010 with respect to an allegation of
wrongdoing or abuse under the Fraud and Abuse Whistle Blower Protection Act (§
2.2-3009 et seq.); (iv) the Office of the State Inspector General with respect
to an investigation initiated through the Fraud, Waste and Abuse Hotline or an
investigation initiated pursuant to Chapter 3.2 (§2.2-307 et seq.); (v)
internal auditors appointed by the head of a state agency or by any public
institution of higher education; (vi) the committee or the auditor with respect
to an investigation or audit conducted pursuant to §15.2-825; or (vii) the
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. Records of
Information contained in completed investigations shall be
disclosed in a form that does not reveal the identity of the complainants or
persons supplying information to investigators. Unless disclosure is prohibited excluded
by this section subdivision,
the records
information disclosed shall include, but not
be limited to, the agency involved, the identity of the
person who is the subject of the complaint, the nature of the complaint, and
the actions taken to resolve the complaint. If an investigation does not lead
to corrective action, the identity of the person who is the subject of the
complaint may be released only with the consent of the subject person. Local
governing bodies shall adopt guidelines to govern the disclosure required by
this subdivision.
8. Information furnished in confidence to the Department of
Human Resource Management with respect to an investigation, consultation, or
mediation under §2.2-1202.1, and memoranda, correspondence and other records
resulting from any such investigation, consultation or mediation. However, nothing in
this section shall prohibit the distribution of information
taken from Information
contained in inactive reports shall be
disclosed in a form that does not reveal the identity of
the parties involved or other persons supplying information.
9. The names, addresses and telephone numbers of complainants
furnished in confidence with respect to an investigation of individual zoning
enforcement complaints or complaints relating to the Uniform Statewide Building
Code (§36-97 et seq.) or the Statewide Fire Prevention Code (§27-94 et seq.)
made to a local governing body.
10. 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.
11. Records Information furnished to or
prepared by the Board of Education pursuant to subsection D of §22.1-253.13:3
in connection with the review or investigation of any alleged breach in
security, unauthorized alteration, or improper administration of tests by local
school board employees responsible for the distribution or administration of
the tests. However, this section shall not prohibit the disclosure of records such
information to (i) a local school board or division
superintendent for the purpose of permitting such board or superintendent to
consider or to take personnel action with regard to an employee or (ii) any
requester, after the conclusion of a review or investigation, in a form that
(a) does not reveal the identity of any person making a complaint or supplying
information to the Board on a confidential basis and (b) does not compromise
the security of any test mandated by the Board.
12. Investigator notes, and other correspondence and
information, furnished in confidence with respect to an active investigation
conducted by or for the Board of Education related to the denial, suspension,
or revocation of teacher licenses. However, this subdivision shall not prohibit
the disclosure of records such information to a local
school board or division superintendent for the purpose of permitting such
board or superintendent to consider or to take personnel action with regard to
an employee. Records of Information
contained in completed investigations shall be disclosed in
a form that does not reveal the identity of any complainant or person supplying
information to investigators. The records information disclosed shall
include information regarding the
school or facility involved, the identity of the person who was the subject of
the complaint, the nature of the complaint, and the actions taken to resolve
the complaint. If an investigation fails to support a complaint or does not
lead to corrective action, the identity of the person who was the subject of
the complaint may be released only with the consent of the subject person. No
personally identifiable information in the records
regarding a current or former student shall be released except as permitted by
state or federal law.
13. Records, notes and
information 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 information 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.
§2.2-3705.4. Exclusions to application of chapter;
educational records and certain records of educational institutions.
The following records are information contained in a public record is
excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian in his discretion, except
where such disclosure is prohibited by law:. Redaction of information
excluded under this section from a public record shall be conducted in
accordance with §2.2-3704.01.
1. Scholastic records containing information concerning
identifiable individuals, except that such access shall not be denied to the
person who is the subject thereof, or the parent or legal guardian of the
student. However, no student shall have access to (i) financial records of a
parent or guardian or (ii) records of instructional, supervisory, and
administrative personnel and educational personnel ancillary thereto, that are
in the sole possession of the maker thereof and that are not accessible or
revealed to any other person except a substitute.
The parent or legal guardian of a student may prohibit, by written
request, the release of any individual information regarding that student until
the student reaches the age of 18 years. For scholastic records of students
under the age of 18 years, the right of access may be asserted only by his
legal guardian or parent, including a noncustodial parent, unless such parent's
parental rights have been terminated or a court of competent jurisdiction has
restricted or denied such access. For scholastic records of students who are
emancipated or attending a state-supported institution of higher education, the
right of access may be asserted by the student.
Any person who is the subject of any scholastic record and who
is 18 years of age or older may waive, in writing, the protections afforded by
this subdivision. If the protections are so waived, the
public body such records
shall open such records for inspection and copying be disclosed.
2. Confidential letters and statements of recommendation
placed in the records of educational agencies or institutions respecting (i) admission
to any educational agency or institution, (ii) an application for employment or
promotion, or (iii) receipt of an honor or honorary recognition.
3. Records of Information held by the Brown
v. Board of Education Scholarship Awards Committee relating to that would reveal
personally identifiable information, including scholarship applications,
personal financial information, and confidential correspondence and letters of
recommendation.
4. Data, records or
information Information
of a proprietary nature produced or collected by or for faculty or staff of
public institutions of higher education, 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 a private concern, where such data, records or information
has not been publicly released, published, copyrighted or patented.
5. All records of Information held by the
University of Virginia or the University of Virginia Medical Center or Eastern
Virginia Medical School, as the case may be, that contain proprietary,
business-related information pertaining to the operations of the University of
Virginia Medical Center or Eastern Virginia Medical School, as the case may be,
including business development or marketing strategies and activities with
existing or future joint venturers, partners, or other parties with whom the
University of Virginia Medical Center or Eastern Virginia Medical School, as
the case may be, has formed, or forms, any arrangement for the delivery of
health care, if disclosure of such information would be harmful to the
competitive position of the Medical Center or Eastern Virginia Medical School,
as the case may be.
6. Personal information, as defined in §2.2-3801, provided to
the Board of the Virginia College Savings Plan or its employees by or on behalf
of individuals who have requested information about, applied for, or entered
into prepaid tuition contracts or savings trust account agreements pursuant to
Chapter 4.9 (§23-38.75 et seq.) of Title 23. Nothing in
this subdivision shall be construed to prohibit disclosure
or publication of However, information in a
statistical or other form that does not identify individuals or provide
personal information shall be disclosed and may
be published by the Board. Individuals shall be provided
access to their own personal information.
7. Records Information maintained in
connection with fundraising activities by or for a public institution of higher
education to the extent that such records would reveal (i) personal
fundraising strategies relating to identifiable donors or prospective donors or
(ii) wealth assessments; estate, financial, or tax planning information;
health-related information; employment, familial, or marital status
information; electronic mail addresses, facsimile or telephone numbers; birth
dates or social security numbers of identifiable donors or prospective donors.
Nothing in this subdivision, however, shall be construed to authorize the
withholding of records
information relating to the amount, date, purpose, and
terms of the pledge or donation, or the identity of the donor unless the donor
has requested anonymity in connection with or as a condition of making a pledge
or donation. The exclusion provided by this subdivision shall not apply to
protect from disclosure (i) the identities of sponsors providing grants to or
contracting with the institution for the performance of research services or
other work or (ii) the terms and conditions of such grants or contracts.
8. Records of Information held by a threat
assessment team established by a public institution of higher education
pursuant to §23-9.2:10 relating to the assessment or intervention with a
specific individual. However, in the event an individual who has been under
assessment commits an act, or is prosecuted for the commission of an act that
has caused the death of, or caused serious bodily injury, including any felony
sexual assault, to another person, the records such information of such the
threat assessment team concerning the individual under assessment shall be made
available as provided by this chapter, with the exception of any criminal
history records obtained pursuant to §19.2-389 or 19.2-389.1, health records
obtained pursuant to §32.1-127.1:03, or scholastic records as defined in §
22.1-289. The public body providing such records information shall remove information personally identifying information of any person who
provided information to the threat assessment team under a promise of
confidentiality.
§2.2-3705.5. Exclusions to application of chapter; health and
social services records.
The following records are information contained in a public record is
excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian in his discretion, except
where such disclosure is prohibited by law:. Redaction of information
excluded under this section from a public record shall be conducted in
accordance with §2.2-3704.01.
1. Health records, except that such records may be personally
reviewed by the individual who is the subject of such records, as provided in
subsection F of §32.1-127.1:03.
Where the person who is the subject of health records is
confined in a state or local correctional facility, the administrator or chief
medical officer of such facility may assert such confined person's right of
access to the health records if the administrator or chief medical officer has
reasonable cause to believe that such confined person has an infectious disease
or other medical condition from which other persons so confined need to be
protected. Health records shall only be reviewed and shall not be copied by
such administrator or chief medical officer. The information in the health
records of a person so confined shall continue to be confidential and shall not
be disclosed by the administrator or chief medical officer of the facility to
any person except the subject or except as provided by law.
Where the person who is the subject of health records is under
the age of 18, his right of access may be asserted only by his guardian or his
parent, including a noncustodial parent, unless such parent's parental rights
have been terminated, a court of competent jurisdiction has restricted or
denied such access, or a parent has been denied access to the health record in
accordance with §20-124.6. In instances where the person who is the subject
thereof is an emancipated minor, a student in a public institution of higher
education, or is a minor who has consented to his own treatment as authorized
by §16.1-338 or 54.1-2969, the right of access may be asserted by the subject
person.
For the purposes of this chapter, statistical summaries of
incidents and statistical data concerning abuse of individuals receiving
services compiled by the Commissioner of Behavioral Health and Developmental
Services shall be open to inspection and
copying as provided in §2.2-3704 disclosed.
No such summaries or data shall include any information that identifies
specific individuals receiving services.
2. 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. However, such
material may be made available during normal working hours for copying, at the
requester's expense, by the individual who is the subject thereof, in the
offices of the Department of Health Professions or in the offices of any health
regulatory board, whichever may possess the material.
3. Reports, documentary evidence and other information as
specified in §§51.5-122, 51.5-141, and 63.2-104.
4. Investigative notes; proprietary information not published,
copyrighted or patented; information obtained from employee personnel records;
personally identifiable information regarding residents, clients or other
recipients of services; other correspondence and information furnished in
confidence to the Department of Social Services in connection with an active
investigation of an applicant or licensee pursuant to Chapters 17 (§63.2-1700
et seq.) and 18 (§63.2-1800 et seq.) of Title 63.2; and records
and information furnished to the Office of the Attorney
General in connection with an investigation or litigation pursuant to Article
19.1 (§8.01-216.1 et seq.) of Chapter 3 of Title 8.01 and Chapter 9 (§
32.1-310 et seq.) of Title 32.1. However, nothing in
this section shall prohibit disclosure of information Information from the records
of completed investigations shall be disclosed in
a form that does not reveal the identity of complainants, persons supplying
information, or other individuals involved in the investigation.
5. Information and records
collected for the designation and verification of trauma centers and other
specialty care centers within the Statewide Emergency Medical Services System
and Services pursuant to Article 2.1 (§32.1-111.1 et seq.) of Chapter 4 of
Title 32.1.
6. Reports and court documents relating to involuntary
admission required to be kept confidential pursuant to §37.2-818.
7. Data formerly required to be submitted to the Commissioner
of Health relating to the establishment of new or the 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.
8. Information required to be provided to the Department of
Health Professions by certain licensees pursuant to §54.1-2506.1.
9. Information and records
acquired (i) during a review of any child death conducted 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 that such information
is made confidential by §
32.1-283.2; (ii) during a review of any death conducted by a family violence
fatality review team to the extent that such information
is 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 or by a
local or regional adult fatality review team to the extent that such
information is made
confidential by §32.1-283.6.
10. Patient level data collected by the Board of Health and
not yet processed, verified, and released, pursuant to §32.1-276.9, to the
Board by the nonprofit organization with which the Commissioner of Health has
contracted pursuant to §32.1-276.4.
11. Records of Information held by the Health
Practitioners' Monitoring Program Committee within the Department of Health
Professions, to the
extent such records that may identify any
practitioner who may be, or who is actually, impaired to the
extent and
disclosure of such information is
prohibited by §54.1-2517.
12. Records submitted
as Information relating to
a grant application, or accompanying a grant application, submitted to
the Commonwealth Neurotrauma Initiative Advisory Board pursuant to Article 12
(§51.5-178 et seq.) of Chapter 14 of Title 51.5, to the
extent such records contain that would
(i) reveal (a) medical or mental
health records, or
other data identifying individual patients or (ii) (b) 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, or scholarly issues, when
such information has not been publicly released, published, copyrighted, or patented, if the disclosure of such information would and (ii)
be harmful to the competitive position of the applicant.
13. Any record information copied, recorded, or received by the
Commissioner of Health in the course of an examination, investigation, or review of a managed care
health insurance plan licensee pursuant to §§32.1-137.4 and 32.1-137.5,
including books, records, files, accounts, papers, documents, and any or all
computer or other recordings.
14. Records,
information Information
and statistical registries required to be kept confidential
pursuant to §§63.2-102 and 63.2-104.
15. All data, records, and
reports Information
relating to the prescribing and dispensing of covered substances to recipients
and any abstracts from such data, records, and reports information 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.
16. Records of the Virginia Birth-Related Neurological Injury
Compensation Program required to be kept confidential pursuant to §
38.2-5002.2.
17. Records of Information held by 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,. However, nothing in this subdivision shall
be construed to prohibit the disclosure authorize the withholding of
statistical summaries, abstracts, or
other information in aggregate form.
18. Records containing the 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.
19. Records of Information held by certain
health care committees and entities, to the
extent that they reveal information
that may be withheld from discovery as privileged communications pursuant to §
8.01-581.17.
§2.2-3705.6. Exclusions to application of chapter;
proprietary records and trade secrets.
The following records are information contained in a public record is
excluded from the mandatory disclosure provisions
of this chapter but may be disclosed by the custodian in his discretion, except
where such disclosure is prohibited by law:. Redaction of information
excluded under this section from a public record shall be conducted in
accordance with §2.2-3704.01.
1. Proprietary information gathered by or for the Virginia
Port Authority as provided in §62.1-132.4 or 62.1-134.1.
2. 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.
3. Confidential proprietary records Proprietary information,
voluntarily provided by private business pursuant to a promise of
confidentiality from a public body, used by the public body for business, trade, and tourism development or
retention; and memoranda, working papers, or
other records
information related to businesses that are considering
locating or expanding in Virginia, prepared by a public body, where competition
or bargaining is involved and where, if disclosure of such records are made public, information would adversely affect
the financial interest of the public body would be
adversely affected.
4. Information that was filed as confidential under the Toxic
Substances Information Act (§32.1-239 et seq.), as such Act existed prior to
July 1, 1992.
5. Fisheries data that would permit identification of any
person or vessel, except when required by court order as specified in §
28.2-204.
6. 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.
7. Confidential proprietary
records Proprietary information
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.
8. 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.
9. 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 (P.L. 105-178) for
transportation projects, provided if
disclosure of 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.
However, the exemption exclusion
provided by this subdivision shall not apply to any wholly owned subsidiary of
a public body.
10. Confidential information designated as provided in
subsection F of §2.2-4342 as trade secrets or proprietary information by any
person in connection with a procurement transaction or by any
person who has submitted to a public
body an application for prequalification to bid on public construction projects
in accordance with subsection B of §2.2-4317.
11. a. Memoranda, staff evaluations, or other records
information prepared by the responsible public entity, its
staff, outside advisors, or consultants exclusively for the evaluation and
negotiation of proposals filed under the Public-Private Transportation Act of
1995 (§33.2-1800 et seq.) or the Public Private Public-Private Education
Facilities and Infrastructure Act of 2002 (§56-575.1 et seq.), where (i) if such records were information was made public
prior to or after the execution of an interim or a comprehensive agreement, §
33.2-1820 or 56-575.17 notwithstanding, the financial interest or bargaining
position of the public entity would be adversely affected,
and (ii) the basis for the determination required in clause (i) is documented
in writing by the responsible public entity; and
b. Records Information provided by a
private entity to a responsible public entity, affected jurisdiction, or
affected local jurisdiction pursuant to the provisions of the Public-Private
Transportation Act of 1995 (§33.2-1800 et seq.)
or the Public-Private Education Facilities and Infrastructure Act of 2002, to the extent that (§56-575.1 et seq.) if
disclosure of such records contain information would reveal
(i) trade secrets of the private entity as defined in the Uniform Trade Secrets
Act (§59.1-336 et seq.); (ii) financial records information of the private entity,
including balance sheets and financial statements, that are not generally
available to the public through regulatory disclosure or otherwise; or (iii)
other information submitted by the private entity,
where, if the
records were such information was
made public prior to the execution of an interim agreement or a comprehensive
agreement, the financial interest or bargaining position of the public or
private entity would be adversely affected. In order for the records
information specified in clauses (i), (ii), and (iii) to be
excluded from the provisions of this chapter, the private entity shall make a
written request to the responsible public entity:
1. (1) Invoking such exclusion
upon submission of the data or other materials for which protection from
disclosure is sought;
2. (2) Identifying with
specificity the data or other materials for which protection is sought; and
3. (3) Stating the reasons why
protection is necessary.
The responsible public entity shall determine whether the
requested exclusion from disclosure is necessary to protect the trade secrets
or financial records
information of the private entity. To protect other records
information submitted by the private entity from disclosure,
the responsible public entity shall determine whether public disclosure prior
to the execution of an interim agreement or a comprehensive agreement would
adversely affect the financial interest or bargaining position of the public or
private entity. The responsible public entity shall make a written
determination of the nature and scope of the protection to be afforded by the
responsible public entity under this subdivision. Once a written determination
is made by the responsible public entity, the records information afforded
protection under this subdivision shall continue to be protected from
disclosure when in the possession of any affected jurisdiction or affected
local jurisdiction.
Except as specifically provided in subdivision 11 a, nothing
in this subdivision shall be construed to authorize the withholding of (a)
procurement records as required by §33.2-1820 or 56-575.17; (b) information
concerning the terms and conditions of any interim or comprehensive agreement,
service contract, lease, partnership, or any agreement of any kind entered into
by the responsible public entity and the private entity; (c) information
concerning the terms and conditions of any financing arrangement that involves
the use of any public funds; or (d) information concerning the performance of
any private entity developing or operating a qualifying transportation facility
or a qualifying project.
For the purposes of this subdivision, the terms "affected
jurisdiction," "affected local jurisdiction,"
"comprehensive agreement," "interim agreement,"
"qualifying project," "qualifying transportation facility,"
"responsible public entity," and "private entity" shall
mean the same as those terms are defined in the Public-Private Transportation
Act of 1995 (§33.2-1800 et seq.)
or in the Public-Private Education Facilities and Infrastructure Act of 2002 (§56-575.1 et seq.).
12. Confidential proprietary information or trade secrets, not
publicly available, provided by a private person or entity pursuant
to a promise of confidentiality to the Virginia Resources
Authority or to a fund administered 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, after June 30, 1997,
where such information was provided pursuant to a promise of confidentiality.
13. Trade secrets, as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.), or confidential proprietary records information that are is
not generally available to the public through regulatory disclosure or
otherwise, provided by a (a) (i) bidder or applicant for a
franchise or (b) (ii) franchisee under Chapter
21 (§15.2-2100 et seq.) of Title 15.2 to the applicable franchising authority
pursuant to a promise of confidentiality from the franchising authority, to the
extent the records relate information relates to the
bidder's, applicant's, or franchisee's financial capacity or provision of new
services, adoption of new technologies or implementation of improvements, where
such new services, technologies, or
improvements have not been implemented by the franchisee on a nonexperimental
scale in the franchise area, and where, if such records information were made public,
the competitive advantage or financial interests of the franchisee would be
adversely affected.
In order for trade secrets or confidential proprietary
information to be excluded from the provisions of this chapter, the bidder,
applicant, or franchisee shall (i) (a)
invoke such exclusion upon submission of the data or other materials for which
protection from disclosure is sought, (ii) (b)
identify the data or other materials for which protection is sought, and (iii) (c)
state the reason why protection is necessary.
No bidder, applicant, or franchisee may invoke the exclusion
provided by this subdivision if the bidder, applicant, or franchisee is owned
or controlled by a public body or if any representative of the applicable franchising
authority serves on the management board or as an officer of the bidder,
applicant, or franchisee.
14. Documents and other
information Information of a proprietary nature furnished by a supplier of
charitable gaming supplies to the Department of Agriculture and Consumer
Services pursuant to subsection E of §18.2-340.34.
15. Records and reports Information related to
Virginia apple producer sales provided to the Virginia State Apple Board
pursuant to §3.2-1215.
16. Trade secrets, as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.) of Title 59.1, submitted by CMRS providers as defined in §
56-484.12 to the Wireless Carrier E-911 Cost Recovery Subcommittee created
pursuant to §56-484.15, relating to the provision of wireless E-911 service.
17. Records submitted as Information relating to a
grant or loan application, or accompanying a grant or loan application, to the
Innovation and Entrepreneurship Investment Authority pursuant to Article 3 (§
2.2-2233.1 et seq.) of Chapter 22 of Title 2.2 or to the Commonwealth Health
Research Board pursuant to Chapter 22 (§23-277 et seq.) of Title 23 to the extent if disclosure of such records contain information would (i) reveal
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 and (ii)
be harmful to the competitive position of the applicant.
18. Confidential proprietary records information and trade secrets
developed and held by a local public body (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 if disclosure of such records
information 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 (a) invoke the protections of this
subdivision, (b) identify with specificity the records or portions thereof information for which
protection is sought, and (c) state the reasons why
protection is necessary.
19. Confidential proprietary records information 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 information required to be
maintained in accordance with §15.2-2160 shall be released.
20. Trade secrets as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.) or financial records information of a business,
including balance sheets and financial statements, that are not generally
available to the public through regulatory disclosure or otherwise, provided to
the Department of Small Business and Supplier Diversity as part of an
application for certification as a small, women-owned, or minority-owned
business in accordance with Chapter 16.1 (§2.2-1603 et seq.). In order for
such trade secrets or financial records information to be excluded
from the provisions of this chapter, the business shall (i) invoke such
exclusion upon submission of the data or other materials for which protection
from disclosure is sought, (ii) identify the data or other materials for which
protection is sought, and (iii) state the reasons why protection is necessary.
21. Documents and other
information Information
of a proprietary or confidential nature disclosed by a carrier to the State
Health Commissioner pursuant to §§32.1-276.5:1 and 32.1-276.7:1.
22. Trade secrets, as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.), including, but not limited to, financial records
information, including balance sheets and financial
statements, that are not generally available to the public through regulatory
disclosure or otherwise, and revenue and cost projections supplied by a private
or nongovernmental entity to the State Inspector General for the purpose of an
audit, special investigation, or any study requested by the Office of the State
Inspector General in accordance with law.
In order for the records information specified in this
subdivision to be excluded from the provisions of this chapter, the private or
nongovernmental entity shall make a written request to the State Inspector
General:
1. a. Invoking such exclusion upon
submission of the data or other materials for which protection from disclosure
is sought;
2. b. Identifying with specificity
the data or other materials for which protection is sought; and
3. c. Stating the reasons why
protection is necessary.
The State Inspector General shall determine whether the
requested exclusion from disclosure is necessary to protect the trade secrets
or financial records information
of the private entity. The State Inspector General shall make a written
determination of the nature and scope of the protection to be afforded by it
under this subdivision.
23. Records submitted
as Information relating to
a grant application, or accompanying a grant application, submitted to
the Tobacco Region Revitalization Commission to the
extent such records contain that would
(i) reveal (a)
trade secrets as defined in the Uniform Trade Secrets Act (§59.1-336 et seq.), (ii) (b)
financial records
information of a grant applicant that is not a public body,
including balance sheets and financial statements, that are not generally
available to the public through regulatory disclosure or otherwise, or (iii) (c)
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 and (ii)
be harmful to the competitive position of the applicant; and memoranda, staff
evaluations, or other records information prepared by the
Commission or its staff exclusively for the evaluation of grant applications.
The exclusion provided by this subdivision shall apply to grants that are
consistent with the powers of and in furtherance of the performance of the
duties of the Commission pursuant to §3.2-3103.
In order for the records information specified in this
subdivision to be excluded from the provisions of this chapter, the applicant
shall make a written request to the Commission:
1. a. Invoking such exclusion upon
submission of the data or other materials for which protection from disclosure
is sought;
2. b. Identifying with specificity
the data, records information
or other materials for which protection is sought; and
3. c. Stating the reasons why
protection is necessary.
The Commission shall determine whether the requested exclusion
from disclosure is necessary to protect the trade secrets, financial records
information, or research-related
information of the applicant. The Commission shall make a written determination
of the nature and scope of the protection to be afforded by it under this
subdivision.
24. a. Records of Information held by the
Commercial Space Flight Authority relating to rate structures or charges for
the use of projects of, the sale of products of, or services rendered by the
Authority if public disclosure of such information would adversely affect the financial interest or
bargaining position of the Authority or a private entity providing records the
information to the Authority; or
b. Records Information provided by a
private entity to the Commercial Space Flight Authority, to the
extent that if
disclosure of such records contain information would
(i) reveal (a)
trade secrets of the private entity as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.); (ii) (b) financial records
information of the private entity, including balance sheets
and financial statements, that are not generally available to the public
through regulatory disclosure or otherwise; or (iii) (c) other information
submitted by the private entity, where, if the records were
made public, and (ii)
adversely affect the financial interest or bargaining
position of the Authority or private entity would be
adversely affected.
In order for the records information specified in
clauses (i) (a), (ii) (b),
and (iii) (c)
of subdivision 24 b to be excluded from the provisions of this chapter, the
private entity shall make a written request to the Authority:
1. (1) Invoking such exclusion
upon submission of the data or other materials for which protection from
disclosure is sought;
2. (2) Identifying with
specificity the data or other materials for which protection is sought; and
3. (3) Stating the reasons why
protection is necessary.
The Authority shall determine whether the requested exclusion
from disclosure is necessary to protect the trade secrets or financial records
information of the private entity. To protect other records
information submitted by the private entity from
disclosure, the Authority shall determine whether public disclosure would
adversely affect the financial interest or bargaining position of the Authority
or private entity. The Authority shall make a written determination of the
nature and scope of the protection to be afforded by it under this subdivision.
25. Documents and other
information Information
of a proprietary nature furnished by an agricultural landowner or operator to
the Department of Conservation and Recreation, the Department of Environmental
Quality, the Department of Agriculture and Consumer Services, or any political subdivision,
agency, or board of the Commonwealth pursuant to §§10.1-104.7, 10.1-104.8, and
10.1-104.9, other than when required as part of a state or federal regulatory
enforcement action.
26. Trade secrets, as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.), provided to the Department of Environmental Quality
pursuant to the provisions of §10.1-1458. In order for such trade secrets to
be excluded from the provisions of this chapter, the submitting party shall (i)
invoke this exclusion upon submission of the data or materials for which
protection from disclosure is sought, (ii) identify the data or materials for
which protection is sought, and (iii) state the reasons why protection is
necessary.
27. Documents and other
information Information
of a proprietary nature furnished by a licensed public-use airport to the Department
of Aviation for funding from programs administered by the Department of
Aviation or the Virginia Aviation Board, where if the
records were such information was
made public, the financial interest of the public-use airport would be
adversely affected.
In order for the records information specified in this
subdivision to be excluded from the provisions of this chapter, the public-use
airport shall make a written request to the Department of Aviation:
1. a. Invoking such exclusion upon
submission of the data or other materials for which protection from disclosure
is sought;
2. b. Identifying with specificity
the data or other materials for which protection is sought; and
3. c. Stating the reasons why
protection is necessary.
§2.2-3705.7. Exclusions to application of chapter; records of
specific public bodies and certain other limited exclusions.
The following records are information contained in a public record is
excluded from the mandatory disclosure
provisions of this chapter but may be disclosed by the custodian in his
discretion, except where such disclosure is prohibited by law:. Redaction
of information excluded under this section from a public record shall be
conducted in accordance with §2.2-3704.01.
1. State income, business, and estate tax returns, personal
property tax returns, scholastic
and confidential records held pursuant to §58.1-3.
2. Working papers and correspondence of the Office of the
Governor; the Lieutenant Governor; the
Attorney General; the members of the General Assembly, the Division of
Legislative Services, or the Clerks of the House of Delegates and the Senate of
Virginia; the mayor or 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 in Virginia. However, no record, which information that
is otherwise open to inspection under this chapter,
shall be deemed exempt excluded by virtue of the fact
that it has been attached to or incorporated within any working paper or
correspondence.
As used in this subdivision:
"Members of the General Assembly" means each member
of the Senate of Virginia and the House of Delegates and their legislative
aides when working on behalf of such member.
"Office of the Governor" means the Governor; his
chief of staff, counsel, director of policy, Cabinet Secretaries, and the Assistant to the Governor
for Intergovernmental Affairs;
and those individuals to whom the Governor has delegated his authority pursuant
to §2.2-104.
"Working papers" means those records prepared by or
for an above-named public official for his personal or deliberative use.
3. Library Information contained in library
records that can be used to identify both (i) any
library patron who has borrowed material from a library and (ii) the material
such patron borrowed.
4. 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.
5. Lists of registered owners of bonds issued by a political
subdivision of the Commonwealth, whether the lists are maintained by the
political subdivision itself or by a single fiduciary designated by the
political subdivision.
6. Records and
writings Information
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 filed under §
30-110 or of formulating advisory opinions to members on standards of conduct,
or both.
7. 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.
8. Personal information, as defined in §2.2-3801, (i) filed
with the Virginia Housing Development 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; (ii) concerning persons
participating in or persons on the waiting list for federally funded
rent-assistance programs; (iii) filed with any local redevelopment and housing
authority created pursuant to §36-4 concerning persons participating in or
persons on the waiting list for housing assistance programs funded by local
governments or by any such authority; or (iv) filed with any local
redevelopment and housing authority created pursuant to §36-4 or any other
local government agency concerning persons who have applied for occupancy or
who have occupied affordable dwelling units established pursuant to §15.2-2304
or 15.2-2305. However, access to one's own information shall not be denied.
9. Records Information regarding the
siting of hazardous waste facilities, except as provided in §10.1-1441, if
disclosure of them such information
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 siting agreement.
10. Records containing
information Information
on the site specific 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 that has the responsibility for such information, disclosure of the
information would jeopardize the continued existence or the integrity of the
resource. This exemption exclusion
shall not apply to requests from the owner of the land upon which the resource
is located.
11. Records, memoranda, working
papers Memoranda,
graphics, video or audio tapes, production models, data,
and information of a proprietary nature produced by or for or collected by or
for the Virginia Lottery relating to matters of a specific lottery game design,
development, production, operation, ticket price, prize structure, manner of
selecting the winning ticket, manner of payment of prizes to holders of winning
tickets, frequency of drawings or selections of winning tickets, odds of
winning, advertising, or marketing, where such official
records have information
not been publicly released, published, copyrighted,
or patented. Whether released, published, or
copyrighted, all game-related information shall be subject to public disclosure
under this chapter upon the first day of sales for the specific lottery game to
which it pertains.
12. Records of Information held by the
Virginia Retirement System, acting pursuant to §51.1-124.30, or of a local retirement system,
acting pursuant to §51.1-803, or of the
Rector and Visitors of the University of Virginia, acting pursuant to §
23-76.1, or of the Virginia College Savings
Plan, acting pursuant to §23-38.77, 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: if disclosure of such information would
(i) such records contain reveal 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, 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 authorize the withholding
of information relating to the identity of any investment
held, the amount invested, or the present value of such investment.
13. 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.
14. 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 under Chapter 11 (§51.5-53 et seq.) of Title 51.5.
15. Records of Information held by the
Virginia Commonwealth University Health System Authority pertaining to any of
the following: an individual's qualifications for or continued membership on
its medical or teaching staffs; proprietary information gathered by or in the
possession of the Authority from third parties pursuant to a promise of
confidentiality; contract cost estimates prepared for confidential use in
awarding contracts for construction or the purchase of goods or services; data, records or information
of a proprietary nature produced or collected by or for the Authority or members
of its medical or teaching staffs; financial statements not publicly available
that may be filed with the Authority from third parties; the identity, accounts, or account status of any
customer of the Authority; consulting or other reports paid for by the
Authority to assist the Authority in connection with its strategic planning and
goals; the determination of marketing and operational strategies where
disclosure of such strategies would be harmful to the competitive position of
the Authority; and data, records or information
of a proprietary nature produced or collected by or for employees of the
Authority, other than the Authority's 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 Authority alone or in conjunction with a governmental body or
a private concern, when such data, records or
information have has
not been publicly released, published, copyrighted,
or patented. This exemption exclusion shall also apply
when such records are information is in the
possession of the
Virginia Commonwealth University.
16. Records of Information held by the
Department of Environmental Quality, the State Water Control Board, the State Air Pollution Control
Board, or the Virginia Waste
Management Board relating to (i) active federal environmental enforcement
actions that are considered confidential under federal law and (ii) enforcement
strategies, including proposed sanctions for enforcement actions. Upon request,
such records
information shall be disclosed after a proposed sanction
resulting from the investigation has been proposed to the director of the
agency. This subdivision shall not be construed to prohibit
the disclosure authorize the withholding
of records
information related to inspection reports, notices of
violation, and documents detailing the nature of any environmental
contamination that may have occurred or similar documents.
17. As it pertains to any
person, records Information
related to the operation of toll facilities that identify identifies an individual,
vehicle, or travel itinerary,
including, but not limited to,
vehicle identification data, or vehicle enforcement system
information; video or photographic images; Social Security or other
identification numbers appearing on driver's licenses; credit card or bank
account data; home addresses; phone numbers; or records of the date or time of
toll facility use.
18. Records of Information held by the
Virginia Lottery 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 nonlottery operations of specific
retail locations;
and (ii) individual lottery winners, except that a winner's name, hometown, and
amount won shall be disclosed.
19. Records of Information held by the Board for
Branch Pilots 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.
20. Records, investigative notes,
correspondence, and information
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, or
his agents, or
employees or persons employed to perform an audit or examination of holder
records.
21. Records of Information held by the
Virginia Department of Emergency Management or a local governing body relating
to citizen emergency response teams established pursuant to an ordinance of a
local governing body, to the
extent that such records that reveal the name, address,
including e-mail address, telephone or pager numbers, or operating schedule of
an individual participant in the program.
22. Records of Information held by state or
local park and recreation departments and local and regional park authorities to the extent such records contain
information identifying a person concerning identifiable individuals
under the age of 18 years. However, nothing in this subdivision shall operate
to prohibit the disclosure authorize the withholding of
information defined as directory information under regulations implementing the
Family Educational Rights and Privacy Act, 20 U.S.C. §1232g, 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 such information of such persons who are
emancipated, the right of access may be asserted by the subject thereof. Any
parent or emancipated person who is the subject of the record information may waive, in
writing, the protections afforded by this subdivision. If the protections are
so waived, the public body shall open such records information for inspection and
copying.
23. Records Information submitted for
inclusion in the Statewide Alert Network administered by the Department of
Emergency Management, to the
extent that they that
reveal names, physical addresses, email 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.
24. Records of Information held by the
Judicial Inquiry and Review Commission made confidential by §17.1-913.
25. Records of Information held by the
Virginia Retirement System acting pursuant to §51.1-124.30, of a local retirement system
acting pursuant to §51.1-803 (hereinafter collectively referred to as the
retirement system), or of the
Virginia College Savings Plan, acting pursuant to §23-38.77 relating to:
a. Internal deliberations of or decisions by the retirement
system or the Virginia College Savings Plan on the pursuit of particular
investment strategies, or the selection or termination of investment managers,
prior to the execution of such investment strategies or the selection or
termination of such managers, to the extent that if disclosure of such records
information would have an adverse impact on the financial
interest of the retirement system or the Virginia College Savings Plan; and
b. Trade secrets, as defined in the Uniform Trade Secrets Act
(§59.1-336 et seq.), provided by a private entity to the retirement system or
the Virginia College Savings Plan, to the
extent if
disclosure of such records would have an adverse impact on the financial interest
of the retirement system or the Virginia College Savings Plan.
For the records specified in subdivision b to be excluded from
the provisions of this chapter, the entity shall make a written request to the
retirement system or the Virginia College Savings Plan:
(1) Invoking such exclusion prior to or upon submission of the
data or other materials for which protection from disclosure is sought;
(2) Identifying with specificity the data or other materials
for which protection is sought; and
(3) Stating the reasons why protection is necessary.
The retirement system or the Virginia College Savings Plan
shall determine whether the requested exclusion from disclosure meets the
requirements set forth in subdivision b.
Nothing in this subdivision shall be construed to authorize
the withholding of the identity or amount of any investment held or the present
value and performance of all asset classes and subclasses.
26. Records of Information held by the
Department of Corrections made confidential by §53.1-233.
27. Records Information 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 and
required to be provided by such participants to the Department to establish
accounts in accordance with §2.2-4602.
28. Personal information, as defined in §2.2-3801, contained
in the Veterans Care Center Resident Trust Funds concerning residents or
patients of the Department of Veterans Services Care Centers, except that
access shall not be denied to the person who is the subject of the record
information.
29. Records Information maintained in
connection with fundraising activities by the Veterans Services Foundation
pursuant to §2.2-2716 to the extent that such
records that reveal
the address, electronic mail address, facsimile or telephone number, social
security number or other identification number appearing on a driver's license,
or credit card or bank account data of identifiable donors, except that access
shall not be denied to the person who is the subject of the record information. Nothing in this
subdivision, however, shall be construed to authorize the withholding of records
information relating to the amount, date, purpose, and
terms of the pledge or donation or the identity of the donor, unless the donor
has requested anonymity in connection with or as a condition of making a pledge
or donation. The exclusion provided by this subdivision shall not apply to
protect from disclosure (i) the identities of sponsors providing grants to or
contracting with the foundation for the performance of services or other work
or (ii) the terms and conditions of such grants or contracts.
30. Names, physical addresses, telephone numbers, and email
addresses contained in correspondence between an individual and a member of the
governing body, school board, or other public body of the locality in which the
individual is a resident, unless the correspondence relates to the transaction
of public business. However, no record information that is otherwise
open to inspection under this chapter shall be deemed exempt by virtue of the
fact that it has been attached to or incorporated within any such
correspondence.
31. Records of the
Commonwealth's Attorneys' Services Council, to the extent such records are Information prepared for and
utilized by the Commonwealth's Attorneys' Services Council in the training of
state prosecutors or law-enforcement personnel, where such records
are
information is not otherwise available to the public and
the release
disclosure of such records information would reveal
confidential strategies, methods, or
procedures to be employed in law-enforcement activities,
or materials created for the investigation and prosecution of a criminal case.
32. Records Information provided to the
Department of Aviation by other entities of the Commonwealth in connection with
the operation of aircraft,
where the records
information would not be subject to disclosure by the
entity providing the records information. The entity
providing the records
information to the Department of Aviation shall identify
the specific portion of the records information to be protected
and the applicable provision of this chapter that exempts
the record or portions thereof excludes
the information from mandatory disclosure.
33. Records Information created or
maintained by or on the behalf of the judicial performance evaluation program
related to an evaluation of any individual justice or judge made confidential
by §17.1-100.
34. (Effective July 1, 2018) Records
of Information held by
the Virginia Alcoholic Beverage Control Authority to the
extent such records contain that contains
(i) information of a proprietary nature gathered by or in the possession of the
Authority from a private entity pursuant to a promise of confidentiality; (ii)
trade secrets, as defined in the Uniform Trade Secrets Act (§59.1-336 et
seq.), of any private entity; (iii) financial records information of a private
entity, including balance sheets and financial statements, that are not
generally available to the public through regulatory disclosure or otherwise;
(iv) contract cost estimates prepared for the (a) confidential use in awarding
contracts for construction or (b) purchase of goods or services; or (v) the
determination of marketing and operational strategies where disclosure of such
strategies would be harmful to the competitive position of the Authority.
In order for the records information identified in
clauses (i) through, (ii), or (iii) to be excluded
from the provisions of this chapter, the private entity shall make a written
request to the Authority:
a. Invoking such exclusion upon submission of the data or
other materials for which protection from disclosure is sought;
b. Identifying with specificity the data or other materials
for which protection is sought; and
c. Stating the reasons why protection is necessary.
The Authority shall determine whether the requested exclusion
from disclosure is necessary to protect such records information of the private
entity. The Authority shall make a written determination of the nature and
scope of the protection to be afforded by it under this subdivision.
§2.2-3711. Closed meetings authorized for certain limited
purposes.
A. Public bodies may hold closed meetings only for the
following purposes:
1. Discussion, consideration, or interviews of prospective
candidates for employment; assignment, appointment, promotion, performance,
demotion, salaries, disciplining, or resignation of specific public officers,
appointees, or employees of any public body; and evaluation of performance of
departments or schools of public institutions of higher education where such
evaluation will necessarily involve discussion of the performance of specific
individuals. Any teacher shall be permitted to be present during a closed
meeting in which there is a discussion or consideration of a disciplinary
matter that involves the teacher and some student and the student involved in
the matter is present, provided the teacher makes a written request to be
present to the presiding officer of the appropriate board.
2. Discussion or consideration of admission or disciplinary
matters or any other matters that would involve the disclosure of information
contained in a scholastic record concerning any student of any Virginia public
institution of higher education or any state school system. However, any such
student, legal counsel and, if the student is a minor, the student's parents or
legal guardians shall be permitted to be present during the taking of testimony
or presentation of evidence at a closed meeting, if such student, parents, or
guardians so request in writing and such request is submitted to the presiding
officer of the appropriate board.
3. Discussion or consideration of the acquisition of real
property for a public purpose, or of the disposition of publicly held real
property, where discussion in an open meeting would adversely affect the
bargaining position or negotiating strategy of the public body.
4. The protection of the privacy of individuals in personal
matters not related to public business.
5. Discussion concerning a prospective business or industry or
the expansion of an existing business or industry where no previous
announcement has been made of the business' or industry's interest in locating
or expanding its facilities in the community.
6. Discussion or consideration of the investment of public
funds where competition or bargaining is involved, where, if made public
initially, the financial interest of the governmental unit would be adversely
affected.
7. Consultation with legal counsel and briefings by staff
members or consultants pertaining to actual or probable litigation, where such
consultation or briefing in open meeting would adversely affect the negotiating
or litigating posture of the public body; and consultation with legal counsel
employed or retained by a public body regarding specific legal matters
requiring the provision of legal advice by such counsel. For the purposes of this
subdivision, "probable litigation" means litigation that has been
specifically threatened or on which the public body or its legal counsel has a
reasonable basis to believe will be commenced by or against a known party.
Nothing in this subdivision shall be construed to permit the closure of a
meeting merely because an attorney representing the public body is in
attendance or is consulted on a matter.
8. In the case of boards of visitors of public institutions of
higher education, discussion or consideration of matters relating to gifts,
bequests and fund-raising activities, and grants and contracts for services or
work to be performed by such institution. However, the terms and conditions of
any such gifts, bequests, grants, and contracts made by a foreign government, a
foreign legal entity, or a foreign person and accepted by a public institution
of higher education in Virginia shall be subject to public disclosure upon
written request to the appropriate board of visitors. For the purpose of this
subdivision, (i) "foreign government" means any government other than
the United States government or the government of a state or a political
subdivision thereof; (ii) "foreign legal entity" means any legal
entity created under the laws of the United States or of any state thereof if a
majority of the ownership of the stock of such legal entity is owned by foreign
governments or foreign persons or if a majority of the membership of any such
entity is composed of foreign persons or foreign legal entities, or any legal
entity created under the laws of a foreign government; and (iii) "foreign
person" means any individual who is not a citizen or national of the
United States or a trust territory or protectorate thereof.
9. In the case of the boards of trustees of the Virginia
Museum of Fine Arts, the Virginia Museum of Natural History, the
Jamestown-Yorktown Foundation, and The Science Museum of Virginia, discussion
or consideration of matters relating to specific gifts, bequests, and grants.
10. Discussion or consideration of honorary degrees or special
awards.
11. Discussion or consideration of tests, examinations, or
other records
information excluded from this chapter pursuant to
subdivision 4 of §2.2-3705.1.
12. Discussion, consideration, or review by the appropriate
House or Senate committees of possible disciplinary action against a member
arising out of the possible inadequacy of the disclosure statement filed by the
member, provided the member may request in writing that the committee meeting
not be conducted in a closed meeting.
13. Discussion of strategy with respect to the negotiation of
a hazardous waste siting agreement or to consider the terms, conditions, and
provisions of a hazardous waste siting agreement if the governing body in open
meeting finds that an open meeting will have an adverse effect upon the
negotiating position of the governing body or the establishment of the terms,
conditions and provisions of the siting agreement, or both. All discussions
with the applicant or its representatives may be conducted in a closed meeting.
14. Discussion by the Governor and any economic advisory board
reviewing forecasts of economic activity and estimating general and nongeneral
fund revenues.
15. Discussion or consideration of medical and mental health
records excluded from this chapter pursuant to subdivision 1 of §2.2-3705.5.
16. Deliberations of the Virginia Lottery Board in a licensing
appeal action conducted pursuant to subsection D of §58.1-4007 regarding the
denial or revocation of a license of a lottery sales agent; and discussion,
consideration or review of Virginia Lottery matters related to proprietary
lottery game information and studies or investigations exempted from disclosure
under subdivision 6 of §2.2-3705.3 and subdivision 11 of §2.2-3705.7.
17. Those portions of meetings by local government crime
commissions where the identity of, or information tending to identify,
individuals providing information about crimes or criminal activities under a
promise of anonymity is discussed or disclosed.
18. Those portions of meetings in which the Board of
Corrections discusses or discloses the identity of, or information tending to
identify, any prisoner who (i) provides information about crimes or criminal
activities, (ii) renders assistance in preventing the escape of another
prisoner or in the apprehension of an escaped prisoner, or (iii) voluntarily or
at the instance of a prison official renders other extraordinary services, the
disclosure of which is likely to jeopardize the prisoner's life or safety.
19. Discussion of plans to protect public safety as it relates
to terrorist activity or specific cybersecurity threats or vulnerabilities and
briefings by staff members, legal counsel, or law-enforcement or emergency
service officials concerning actions taken to respond to such matters or a
related threat to public safety; discussion of records information excluded from this
chapter pursuant to subdivision 3 or 4 of §2.2-3705.2, where discussion in an
open meeting would jeopardize the safety of any person or the security of any
facility, building, structure, information technology system, or software
program; or discussion of reports or plans related to the security of any
governmental facility, building or structure, or the safety of persons using such
facility, building or structure.
20. Discussion by the Board of the Virginia Retirement System,
acting pursuant to §51.1-124.30, or of any local retirement system, acting
pursuant to §51.1-803, or of the Rector and Visitors of the University of
Virginia, acting pursuant to §23-76.1, or by the Board of the Virginia College
Savings Plan, acting pursuant to §23-38.80, regarding 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 such discussion (i) concerns
confidential analyses prepared for the Rector and Visitors of the University of
Virginia, prepared by the retirement system or by 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) would have
an adverse effect on the value of the investment to be acquired, held or
disposed of by the retirement system, 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 information relating to the
identity of any investment held, the amount invested or the present value of
such investment.
21. Those portions of meetings in which individual child death
cases are discussed by the State Child Fatality Review team established
pursuant to §32.1-283.1, those portions of meetings in which individual child
death cases are discussed by a regional or local child fatality review team
established pursuant to §32.1-283.2, those portions of meetings in which individual
death cases are discussed by family violence fatality review teams established
pursuant to §32.1-283.3, those portions of meetings in which individual adult
death cases are discussed by the state Adult Fatality Review Team established
pursuant to §32.1-283.5, and those portions of meetings in which individual
adult death cases are discussed by a local or regional adult fatality review
team established pursuant to §32.1-283.6.
22. Those portions of meetings of the University of Virginia
Board of Visitors or the Eastern Virginia Medical School Board of Visitors, as
the case may be, and those portions of meetings of any persons to whom
management responsibilities for the University of Virginia Medical Center or
Eastern Virginia Medical School, as the case may be, have been delegated, in
which there is discussed proprietary, business-related information pertaining
to the operations of the University of Virginia Medical Center or Eastern
Virginia Medical School, as the case may be, including business development or
marketing strategies and activities with existing or future joint venturers,
partners, or other parties with whom the University of Virginia Medical Center
or Eastern Virginia Medical School, as the case may be, has formed, or forms,
any arrangement for the delivery of health care, if disclosure of such
information would adversely affect the competitive position of the Medical
Center or Eastern Virginia Medical School, as the case may be.
23. In the case of the Virginia Commonwealth University Health
System Authority, discussion or consideration of any of the following: the
acquisition or disposition of real or personal property where disclosure would
adversely affect the bargaining position or negotiating strategy of the
Authority; operational plans that could affect the value of such property, real
or personal, owned or desirable for ownership by the Authority; matters
relating to gifts, bequests and fund-raising activities; grants and contracts
for services or work to be performed by the Authority; marketing or operational
strategies where disclosure of such strategies would adversely affect the
competitive position of the Authority; members of its medical and teaching
staffs and qualifications for appointments thereto; and qualifications or
evaluations of other employees. This exemption exclusion shall also apply
when the foregoing discussions occur at a meeting of the Virginia Commonwealth
University Board of Visitors.
24. Those portions of the meetings of the Health
Practitioners' Monitoring Program Committee within the Department of Health
Professions to the extent such discussions identify any practitioner who may
be, or who actually is, impaired pursuant to Chapter 25.1 (§54.1-2515 et seq.)
of Title 54.1.
25. Meetings or portions of meetings of the Board of the
Virginia College Savings Plan wherein personal information, as defined in §
2.2-3801, which has been provided to the Board or its employees by or on behalf
of individuals who have requested information about, applied for, or entered
into prepaid tuition contracts or savings trust account agreements pursuant to
Chapter 4.9 (§23-38.75 et seq.) of Title 23 is discussed.
26. Discussion or consideration, by the Wireless Carrier E-911
Cost Recovery Subcommittee created pursuant to §56-484.15, of trade secrets,
as defined in the Uniform Trade Secrets Act (§59.1-336 et seq.), submitted by
CMRS providers as defined in §56-484.12, related to the provision of wireless
E-911 service.
27. Those portions of disciplinary proceedings by any regulatory
board within the Department of Professional and Occupational Regulation,
Department of Health Professions, or the Board of Accountancy conducted
pursuant to §2.2-4019 or 2.2-4020 during which the board deliberates to reach
a decision or meetings of health regulatory boards or conference committees of
such boards to consider settlement proposals in pending disciplinary actions or
modifications to previously issued board orders as requested by either of the
parties.
28. Discussion or consideration of records information excluded from this
chapter pursuant to subdivision 11 of §2.2-3705.6 by a responsible public
entity or an affected locality or public entity, as those terms are defined in
§33.2-1800, or any independent review panel appointed to review information
and advise the responsible public entity concerning such records.
29. Discussion of the award of a public contract involving the
expenditure of public funds, including interviews of bidders or offerors, and
discussion of the terms or scope of such contract, where discussion in an open
session would adversely affect the bargaining position or negotiating strategy
of the public body.
30. Discussion or consideration of grant or loan application records
information excluded from this chapter pursuant to
subdivision 17 of §2.2-3705.6 by (i) the Commonwealth Health Research Board or
(ii) the Innovation and Entrepreneurship Investment Authority or the Research
and Technology Investment Advisory Committee appointed to advise the Innovation
and Entrepreneurship Investment Authority.
31. Discussion or consideration by the Commitment Review
Committee of records
information excluded from this chapter pursuant to
subdivision 9 8
of §2.2-3705.2 relating to individuals subject to commitment as sexually violent
predators under Chapter 9 (§37.2-900 et seq.) of Title 37.2.
32. [Expired.]
33. Discussion or consideration of confidential proprietary records
information and trade secrets excluded from this chapter
pursuant to subdivision 18 of §2.2-3705.6.
34. Discussion or consideration by a local authority created
in accordance with the Virginia Wireless Service Authorities Act (§15.2-5431.1
et seq.) of confidential proprietary records information and trade secrets
excluded from this chapter pursuant to subdivision 19 of §2.2-3705.6.
35. Discussion or consideration by the State Board of
Elections or local electoral boards of voting security matters made
confidential pursuant to §24.2-625.1.
36. Discussion or consideration by the Forensic Science Board
or the Scientific Advisory Committee created pursuant to Article 2 (§9.1-1109
et seq.) of Chapter 11 of Title 9.1 of records excluded from this chapter
pursuant to subdivision A 2 a of §2.2-3706.
37. Discussion or consideration by the Brown v. Board of Education
Scholarship Program Awards Committee of records information or confidential
matters excluded from this chapter pursuant to subdivision 3 of §2.2-3705.4,
and meetings of the Committee to deliberate concerning the annual maximum
scholarship award, review and consider scholarship applications and requests
for scholarship award renewal, and cancel, rescind, or recover scholarship
awards.
38. Discussion or consideration by the Virginia Port Authority
of records
information excluded from this chapter pursuant to
subdivision 1 of §2.2-3705.6.
39. Discussion or consideration by the Board of Trustees of
the Virginia Retirement System acting pursuant to §51.1-124.30, by the
Investment Advisory Committee appointed pursuant to §51.1-124.26, by any local
retirement system, acting pursuant to §51.1-803, by the Board of the Virginia
College Savings Plan acting pursuant to §23-38.80, or by the Virginia College
Savings Plan's Investment Advisory Committee appointed pursuant to §23-38.79:1
of records
information excluded from this chapter pursuant to
subdivision 25 of §2.2-3705.7.
40. Discussion or consideration of records information excluded from this
chapter pursuant to subdivision 3 of §2.2-3705.6.
41. Discussion or consideration by the Board of Education of records
information relating to the denial, suspension, or
revocation of teacher licenses excluded from this chapter pursuant to
subdivision 12 of §2.2-3705.3.
42. Those portions of meetings of the Virginia Military
Advisory Council or any commission created by executive order for the purpose
of studying and making recommendations regarding preventing closure or
realignment of federal military and national security installations and
facilities located in Virginia and relocation of such facilities to Virginia,
or a local or regional military affairs organization appointed by a local
governing body, during which there is discussion of records information excluded from this
chapter pursuant to subdivision 12 11 of §2.2-3705.2.
43. Discussion or consideration by the Board of Trustees of
the Veterans Services Foundation of records information excluded from this
chapter pursuant to subdivision 29 of §2.2-3705.7.
44. Discussion or consideration by the Virginia Tobacco Region
Revitalization Commission of records information excluded from this
chapter pursuant to subdivision 23 of §2.2-3705.6.
45. Discussion or consideration by the board of directors of
the Commercial Space Flight Authority of records information excluded from this
chapter pursuant to subdivision 24 of §2.2-3705.6.
46. Discussion or consideration of personal and proprietary
information that are excluded from the provisions of this chapter pursuant to
(i) subdivision 25 of §2.2-3705.6 or (ii) subsection E of §10.1-104.7. This exemption exclusion
shall not apply to the discussion or consideration of records that contain
information that has been certified for release by the person who is the
subject of the information or transformed into a statistical or aggregate form
that does not allow identification of the person who supplied, or is the
subject of, the information.
47. (Effective July 1, 2018) Discussion or consideration by
the Board of Directors of the Virginia Alcoholic Beverage Control Authority of records
information excluded from this chapter pursuant to
subdivision 1 of §2.2-3705.3 or subdivision 34 of §2.2-3705.7.
B. No resolution, ordinance, rule, contract, regulation or
motion adopted, passed or agreed to in a closed meeting shall become effective
unless the public body, following the meeting, reconvenes in open meeting and
takes a vote of the membership on such resolution, ordinance, rule, contract,
regulation, or motion that shall have its substance reasonably identified in
the open meeting.
C. Public officers improperly selected due to the failure of
the public body to comply with the other provisions of this section shall be de
facto officers and, as such, their official actions are valid until they obtain
notice of the legal defect in their election.
D. Nothing in this section shall be construed to prevent the
holding of conferences between two or more public bodies, or their
representatives, but these conferences shall be subject to the same procedures
for holding closed meetings as are applicable to any other public body.
E. This section shall not be construed to (i) require the
disclosure of any contract between the Department of Health Professions and an
impaired practitioner entered into pursuant to Chapter 25.1 (§54.1-2515 et
seq.) of Title 54.1 or (ii) require the board of directors of any authority
created pursuant to the Industrial Development and Revenue Bond Act (§
15.2-4900 et seq.), or any public body empowered to issue industrial revenue
bonds by general or special law, to identify a business or industry to which
subdivision A 5 applies. However, such business or industry shall be identified
as a matter of public record at least 30 days prior to the actual date of the
board's authorization of the sale or issuance of such bonds.
§2.2-3713. Proceedings for enforcement of chapter.
A. 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, supported by an affidavit showing
good cause. Such petition may be brought in the name of the person
notwithstanding that a request for public records was made by the person's
attorney in his representative capacity. Venue for the petition shall be
addressed as follows:
1. In a case involving a local public body, to the general
district court or circuit court of the county or city from which the public
body has been elected or appointed to serve and in which such rights and
privileges were so denied;
2. In a case involving a regional public body, to the general
district or circuit court of the county or city where the principal business
office of such body is located; and
3. In a case involving a board, bureau, commission, authority,
district, institution, or agency of the state government, including a public
institution of higher education, or a standing or other committee of the
General Assembly, to the general district court or the circuit court of the
residence of the aggrieved party or of the City of Richmond.
B. In any action brought before a general district court, a
corporate petitioner may appear through its officer, director or managing agent
without the assistance of counsel, notwithstanding any provision of law or Rule
of the Supreme Court of Virginia to the contrary.
C. Notwithstanding the provisions of §8.01-644, the petition
for mandamus or injunction shall be heard within seven days of the date when
the same is made, provided the party against whom the petition is brought has
received a copy of the petition at least three working days prior to filing.
The hearing on any petition made outside of the regular terms of the circuit
court of a locality that is included in a judicial circuit with another
locality or localities shall be given precedence on the docket of such court
over all cases that are not otherwise given precedence by law.
D. The petition shall allege with reasonable specificity the
circumstances of the denial of the rights and privileges conferred by this
chapter. A single instance of denial of the rights and privileges conferred by
this chapter shall be sufficient to invoke the remedies granted herein. If the
court finds the denial to be in violation of the provisions of this chapter,
the petitioner shall be entitled to recover reasonable costs, including costs
and reasonable fees for expert witnesses, and attorneys' fees from the public
body if the petitioner substantially prevails on the merits of the case, unless
special circumstances would make an award unjust. In making this determination,
a court may consider, among other things, the reliance of a public body on an
opinion of the Attorney General or a decision of a court that substantially
supports the public body's position.
E. In any action to enforce the provisions of this chapter,
the public body shall bear the burden of proof to establish an exemption exclusion by a preponderance
of the evidence. No court shall be required
to accord any weight to the determination of a public body as to whether an
exclusion applies. Any
failure by a public body to follow the procedures established by this chapter
shall be presumed to be a violation of this chapter.
F. Failure by any person to request and receive notice of the
time and place of meetings as provided in §2.2-3707 shall not preclude any
person from enforcing his rights and privileges conferred by this chapter.
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