CHAPTER 716
An Act to amend and reenact §§2.2-3701, 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.
[S 494]
Approved April 6, 2016
Be it enacted by the General Assembly of Virginia:
1. That §§2.2-3701, 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:
§2.2-3701. Definitions.
As used in this chapter, unless the context requires a
different meaning:
"Closed meeting" means a meeting from which the
public is excluded.
"Electronic communication" means any audio or
combined audio and visual communication method.
"Emergency" means an unforeseen circumstance
rendering the notice required by this chapter impossible or impracticable and
which circumstance requires immediate action.
"Information" as used in the exclusions
established by §§2.2-3705.1 through 2.2-3705.7, means the content within a
public record that references a specifically identified subject matter, and
shall not be interpreted to require the production of information that is not
embodied in a public record.
"Meeting" or "meetings" means the meetings
including work sessions, when sitting physically, or through telephonic or
video equipment pursuant to §2.2-3708 or 2.2-3708.1, as a body or entity, or
as an informal assemblage of (i) as many as three members or (ii) a quorum, if
less than three, of the constituent membership, wherever held, with or without
minutes being taken, whether or not votes are cast, of any public body. Neither
the gathering of employees of a public body nor the gathering or attendance of
two or more members of a public body (i) at any place or function where no part
of the purpose of such gathering or attendance is the discussion or transaction
of any public business, and such gathering or attendance was not called or
prearranged with any purpose of discussing or transacting any business of the
public body, or (ii) at a public forum, candidate appearance, or debate, the
purpose of which is to inform the electorate and not to transact public
business or to hold discussions relating to the transaction of public business,
even though the performance of the members individually or collectively in the
conduct of public business may be a topic of discussion or debate at such
public meeting, shall be deemed a "meeting" subject to the provisions
of this chapter.
"Open meeting" or "public meeting" means a
meeting at which the public may be present.
"Public body" means any legislative body, authority,
board, bureau, commission, district or agency of the Commonwealth or of any
political subdivision of the Commonwealth, including cities, towns and
counties, municipal councils, governing bodies of counties, school boards and
planning commissions; boards of visitors of public institutions of higher
education; and other organizations, corporations or agencies in the
Commonwealth supported wholly or principally by public funds. It shall include
(i) the Virginia Birth-Related Neurological Injury Compensation Program and its
board of directors established pursuant to Chapter 50 (§38.2-5000 et seq.) of
Title 38.2 and (ii) any committee, subcommittee, or other entity however
designated, of the public body created to perform delegated functions of the
public body or to advise the public body. It shall not exclude any such
committee, subcommittee or entity because it has private sector or citizen
members. Corporations organized by the Virginia Retirement System are
"public bodies" for purposes of this chapter.
For the purposes of the provisions of this chapter applicable
to access to public records, constitutional officers and private police
departments as defined in §9.1-101 shall be considered public bodies and,
except as otherwise expressly provided by law, shall have the same obligations
to disclose public records as other custodians of public records.
"Public records" means all writings and recordings
that consist of letters, words or numbers, or their equivalent, set down by
handwriting, typewriting, printing, photostatting, photography, magnetic
impulse, optical or magneto-optical form, mechanical or electronic recording or
other form of data compilation, however stored, and regardless of physical form
or characteristics, prepared or owned by, or in the possession of a public body
or its officers, employees or agents in the transaction of public business.
Records that are not prepared for or used in the transaction of public business
are not public records.
"Regional public body" means a unit of government
organized as provided by law within defined boundaries, as determined by the
General Assembly, whose members are appointed by the participating local
governing bodies, and such unit includes two or more counties or cities.
"Scholastic records" means those records containing
information directly related to a student or an applicant for admission and
maintained by a public body that is an educational agency or institution or by
a person acting for such agency or institution.
§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.
2. That the provisions of this act are declaratory of the law
as is it existed prior to the September 17, 2015, decision of the Supreme Court
of Virginia in the case of the Department of Corrections v. Surovell.
| 
