Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant sought records under the Virginia Freedom of Information Act relating to municipal employment disputes, the matter is remanded because, in making its rulings whether the requested records were exempt or nonexempt from disclosure, the trial court used “definitions of ‘personnel record’ from a previous version of the statute, instead of ‘personnel information.’”
In the trial court
The trial court determined that five documents were exempt from appellant Hawkins’ VFOIA request. One was a demand letter from a town employee’s attorney to the town attorney regarding discrimination complaints. The court also ruled that an email chain from an employee to the mayor and city council regarding his discipline was exempt, along with three resignation letters.
The court ruled that a petition from seven employees seeking a meeting with the town manager was partially exempt, and an anonymous complaint about the “work environment” was not exempt under VFOIA.
Hawkins appealed.
Definition
“Code § 2.2-3705.1 outlines exemptions to the mandatory disclosure provisions of VFOIA and requires ‘[r]edaction of information excluded under this section … in accordance with § 2.2-3704.1.’ Code § 2.2-3704.01 states that ‘[n]o 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. …
“‘[O]nly portions of the public record containing information subject to an exclusion … may be withheld’ and the entirety of a record may be withheld ‘only to the extent … that an exclusion … applies to the entire content of the public record.’ … “Substantively, Code § 2.2-3705.1(1) exempts ‘[p]ersonnel information concerning identifiable individuals’ from disclosure. VFOIA does not completely define the operative term ‘personnel information.’ … Therefore, we look to the plain and ordinary meaning of its terms.”
After examining dictionary definitions, the statute’s legislative history and caselaw from Virginia and other jurisdictions, “we hold that ‘personnel information’ for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.
“This definition recognizes that the ‘personnel information’ exemption, like the ‘personnel record’ exemption before it, is a ‘privacy-based exemption, designed to protect the subject of the record from the dissemination of personal information.’
Application
“Applying the definition to the documents in this case, we are guided by the 2016 legislative revisions allowing for redactions to partially exempt documents. Specifically, ‘[o]nly those portions of the public record containing information subject to an exclusion … may be withheld’ and the entirety of a record may be withheld ‘only to the extent … that an exclusion … applies to the entire content of the public record.’ Code § 2.2-3704.01.
“The circuit court understood this mandate and applied it to the employee petition.
“‘[A]s a threshold matter[, ]a court’s in camera review of the records constitutes a proper method to balance the need to preserve confidentiality of privileged materials with the statutory duty of disclosure under VFOIA.’ …
“The circuit court allowed the Town to withhold the entirety of all five documents at issue without any redactions, using definitions of ‘personnel record’ under a prior version of Code § 2.2-3705.1. However, we recognize that the trial court was without clear guidance on what constitutes ‘personnel information’ under VFOIA.
“Our role as an appellate court is a limited one, and the circuit court did not have the benefit of the definition set forth above. The trial court is in the best position to assess the ‘precise contours’ of what is private in the context of this case, and therefore we will remand the case for further proceedings consistent with this opinion.”
Conclusion
“The circuit court erred in its interpretation and application of the personnel information exemption under VFOIA. However, Hawkins failed to obtain a ruling on whether he was a prevailing party or on the issue of attorney’s fees and costs.”
Affirmed in part, reversed in part and remanded.
Hawkins III v. Town of South Hill, Record No. 210848; (Mann) Oct. 20, 2022. From the Circuit Court of the County of Mecklenburg (Watson Jr.) Richard F. Hawkins, III, Pro Se. Melissa Y. York (Harman, Claytor, Corrigan & Wellman, on brief), for appellee. VLW 022-6-050, 16 pp.
