If a Virginia county supervisor emails a newsletter to constituents, is the email list a public record under FOIA?

Plain-English summary

The York County Attorney asked the AG whether a member of the Board of Supervisors had to disclose the email distribution list he used to send constituents a newsletter "informing them of matters of interest related to York County government, the actions of the supervisor, and soliciting input from them."

The AG declined to give a yes-or-no answer because the question turned on facts the locality had not provided: what does the newsletter actually contain, and was it sent in the supervisor's official capacity or as part of his campaign?

The framework. Va. Code § 2.2-3701 defines a "public record" as writings "prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." If something is not in the transaction of public business, it is not a public record.

Why "transaction of public business" is the key. The statute doesn't define the phrase. The Burton v. Mann decision and prior AG opinions establish that "[n]ot everything of public interest is public business." The test is whether there is a "nexus between the record produced and the public trust imposed upon the official or governmental body." That is a fact-bound inquiry.

A supervisor's newsletter could go either way. If the newsletter summarizes board actions, reports on county initiatives, and solicits constituent input on pending decisions, that looks like official public business. If the newsletter is the supervisor's campaign vehicle, dressed up to look official, it might not be. The same words could read differently depending on origin and use.

Why the email list follows the newsletter. If the newsletter qualifies as a public record, then the email distribution list used to send it is also a record used "in the transaction of public business" and therefore is a public record subject to FOIA. If the newsletter does not qualify, the list does not either. The opinion notes a wrinkle: if even one newsletter sent using a particular list constitutes a public record, the list associated with that sending becomes a public record too.

The § 2.2-3705.7(30) exemption. Adopted in 2012, this exemption shields "[n]ames, physical addresses, telephone numbers, and email addresses contained in correspondence" between an individual and a local elected official, unless the correspondence relates to the transaction of public business. The AG read this exemption narrowly. By its plain text, it applies only to identifiers "contained in correspondence." A standalone email distribution list, assembled separately from any correspondence, does not fit. The exemption was about protecting constituent contact information appearing within letters, not about exempting compiled mailing lists.

A practical note from the opinion. Va. Code § 2.2-3704(D) provides that a public body is not required to create a new record in response to a FOIA request. So if the supervisor never compiled the email addresses into a separate list (just used "reply all" or stored them in his personal contacts), there is no obligation to manufacture one. The duty only attaches if the list already exists as a record.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Virginia FOIA, including the § 2.2-3705.7 exemptions, has been amended several times since 2013. The "transaction of public business" test remains the operative standard, but specific exemptions and procedures have shifted. Anyone analyzing a FOIA question today should check the current statute and current FOIA Advisory Council opinions.

Common questions

What counts as "transaction of public business" for a local elected official?
The activity has to have a nexus to the public trust the official holds. Voting on a budget, drafting a resolution, holding a constituent meeting on a pending ordinance, responding to constituents on county matters: yes. Pure campaign activity, family communications, hobby correspondence: no.

What if the newsletter has both campaign and official content?
The opinion's framework suggests a hybrid newsletter could be a public record, and the list used to send it could be too. The locality has to look at the specific newsletter and make a fact-based call.

Can a constituent file a FOIA request for a supervisor's emails?
A FOIA request can reach emails that qualify as public records (sent in the transaction of public business). Emails on a public official's personal account that relate to public business may still be public records, depending on the facts.

Can a public official avoid FOIA by using a personal email address?
No, not as a categorical rule. The Virginia Supreme Court and the FOIA Advisory Council have addressed this: substance controls, not the email account used. If the content is the transaction of public business, the email is a public record.

Are constituents' email addresses protected if a supervisor has to disclose his list?
The 2013 opinion concluded that § 2.2-3705.7(30) does not exempt a standalone list. Later FOIA amendments may have added or broadened protections. Verify current law before relying.

Does this apply to General Assembly members?
The Virginia FOIA covers public bodies broadly, but General Assembly members have specific statutory protections for legislative records that local board members do not have. The analysis would differ for state legislators.

What is the FOIA Advisory Council?
A state advisory body that issues informal opinions interpreting Virginia FOIA. Its opinions are not binding but are heavily relied on by public bodies, requesters, and courts. The 2013 opinion cites Advisory Op. No. AO-04-12 (Oct. 17, 2012) on the related question of when a personal phone bill becomes a public record.

What practical step should a public official take?
Maintain separation between official and campaign communications. Use separate email lists, separate accounts, and separate newsletter platforms. The cleaner the line, the easier the FOIA analysis.

Background and statutory framework

• Va. Code § 2.2-3700: legislative purpose; FOIA is to be liberally construed.
• Va. Code § 2.2-3701: definition of "public record" (writings prepared or owned in the transaction of public business).
• Va. Code § 2.2-3704(D): no duty to create a new record in response to a FOIA request.
• Va. Code § 2.2-3705.7(30) (adopted 2012): exempts constituent identifiers contained in correspondence with a local elected official, unless the correspondence transacts public business.
• Burton v. Mann (Va. Cir. 2008): articulates the public-business nexus test.

The interpretive moves:
- The threshold question is whether the underlying activity is the transaction of public business.
- The email list is derivative of whatever it serves; categorize the list by categorizing the newsletter.
- The § 2.2-3705.7(30) exemption applies only to identifiers within correspondence, not to standalone lists.
- The AG cannot decide on the facts presented; the local public body must do the analysis.

Citations

• Va. Code § 2.2-3700
• Va. Code § 2.2-3701
• Va. Code § 2.2-3704
• Va. Code § 2.2-3705.7(30)
• Burton v. Mann, 74 Va. Cir. 471 (2008)
• Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005)
• Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 574 S.E.2d 253 (2003)
• Virginia FOIA Advisory Council, Op. AO-04-12 (Oct. 17, 2012)
• 2004 Op. Va. Att'y Gen. 13
• 2010 Op. Va. Att'y Gen. 56

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-072_Barnett.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

September 27, 2013

James E. Barnett, Esquire
County Attorney, York County
224 Ballard Street
Post Office Box 532
Yorktown, Virginia 23690

Dear Mr. Barnett:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether the email distribution list of a Board of Supervisors member for a newsletter that the member sends out to constituents, "informing them of matters of interest related to York County government, the actions of the supervisor, and soliciting input from" them, is subject to the Freedom of Information Act. Assuming the email distribution list is a public record, you also inquire whether the email addresses contained in the distribution list are exempt from disclosure pursuant to Section 2.2-3705.7(30).

Response

In order to determine whether the email distribution list is a public record subject to the Freedom of Information Act, it is necessary to determine whether the newsletter utilizing the email distribution list is a public record. This is a fact-specific determination that I cannot make based on the facts provided in your letter.

Applicable Law and Discussion

Enacted in 1968, Title 2.2, Subtitle II, Part B, Chapter 37 is titled the Virginia Freedom of Information Act ("FOIA"). Section 2.2-3700 "ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." Moreover, the Act "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government." Any exemption is narrowly construed, but the Act should not be "construed to discourage free discussion by government officials or employees of public matters with the citizens of the Commonwealth."

The first determination that must be made is whether the records requested are public records. If they are not public records then they are not subject to FOIA. The definition of "public record" is very broad. Section 2.2-3701 defines a "public record" as

All writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form of 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 use in the transaction of public business are not public records.

As you note in your letter, the "transaction of public business" is not defined in FOIA. Not everything of public interest is public business.[3] It is the content of the newsletter that determines whether it qualifies as the transaction of public business, and therefore, constitutes a public record.[4] "There must be some nexus between the record produced and the public trust imposed upon the official or governmental body."[5] The determination of whether there is such a nexus is a fact-dependent determination.[6] For instance, it is not clear from your letter whether the newsletter is sent out by the Board member in his official capacity as representative of his constituents or through his campaign, which would exist to ensure the reelection of the Board member, as opposed to the transaction of public business. In addition, although the information provided generally summarizes the newsletter's representative content, once again, its specific content will bear upon any determination whether it is used in the transaction of public business.

Moreover, a determination respecting how the email distribution list is used bears upon whether it is a public record. The definition of "public record" in § 2.2-3701 includes all writings prepared or owned by the Board member in the transaction of public business and excludes "records not prepared or used for the transaction of public business." While the email distribution list may not appear to transact public business in and of itself, once it is used to send a newsletter that is a public record, it becomes a record used in the transaction of public business and therefore is a public record subject to FOIA.[7] Conversely, if the newsletter is not a public record, the email distribution list is not subject to FOIA.[8]

Thus, without more information, or a copy of one or more editions of the newsletter, so as to determine its specific origin and content, I cannot determine whether the newsletter would constitute a public record. "The Attorney General 'refrain[s] from commenting on matters that would require additional facts[.]'"[9]

Assuming the email distribution list is a public record, you next ask whether § 2.2-3705.7(30) would exempt the email addresses from disclosure. Section 2.2-3705.7(30) exempts from disclosure "[n]ames, 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." This section was adopted in 2012 and there are no prior attorney general opinions interpreting its meaning.

"A principal rule of statutory interpretation is that courts will give statutory language its plain meaning."[10] Additionally, "statutes must be construed to give meaning to all of the words enacted by the General Assembly, and a court is not free to add language, nor to ignore language, contained in statutes."[11] Based on a plain reading of the exemption, it only applies to email addresses (and other personal identifiers) "contained in correspondence" between a resident and a member of his local governing body. Therefore, an email distribution list assembled in a record separately from any correspondence would not fall within this exemption.[12]

Conclusion

I cannot offer an opinion regarding whether the email distribution list is a public record without first resolving the issue of whether the newsletter utilizing the email distribution list is a public record. I cannot make that determination at this time based upon the information provided to this Office.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General

Footnotes 1 and 2 (both citing § 2.2-3700, the FOIA policy statement quoted just above them) were not recoverable from the available text extraction; the linked PDF is authoritative.

[3] Burton v. Mann, 74 Va. Cir. 471, 474, 2008 Va. Cir. LEXIS 57, *6 (Jan. 30, 2008).

[4] Id.

[5] Id.

[6] 2004 Op. Va. Att'y Gen. 13, 17-18 (the determination whether certain circumstances constitute the transaction of public business triggering the open meeting requirements of FOIA is fact dependent).

[7] See VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL, Advisory Op. No.: AO-04-12 (Oct. 17, 2012) (although a phone bill paid personally by a public official is not a public record, if the official sought reimbursement from a public body, the phone bill then would constitute a public record).

[8] Significantly, it may be that some of the newsletters would constitute public records while others would not. Thus, for example, if only one newsletter sent utilizing a particular e-mail list constituted a public record, the e-mail list associated with its sending likewise would be a public record.

[9] 2010 Op. Va. Att'y Gen. 56, 58.

[10] Davenport v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 904 (2005)).

[11] Signal Corp. v. Keane Fed. Sys., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003).

[12] It should be noted, however, that pursuant to § 2.2-3704(D) if a Board member has not created an email distribution list as a separate record then he would not be required to create a new record in response to a FOIA request.