2006 Code of Virginia § 2.2-3705.1 - Exclusions to application of chapter; exclusions of general application to public bodies

2.2-3705.1. Exclusions to application of chapter; exclusions of generalapplication to public bodies.

The following records are excluded from the provisions of this chapter butmay be disclosed by the custodian in his discretion, except where suchdisclosure is prohibited by law:

1. Personnel records containing information concerning identifiableindividuals, except that access shall not be denied to the person who is thesubject thereof. Any person who is the subject of any personnel record andwho is 18 years of age or older may waive, in writing, the protectionsafforded by this subdivision. If the protections are so waived, the publicbody shall open such records for inspection and copying.

2. Written advice of legal counsel to state, regional or local public bodiesor the officers or employees of such public bodies, and any other recordsprotected by the attorney-client privilege.

3. Legal memoranda and other work product compiled specifically for use inlitigation or for use in an active administrative investigation concerning amatter 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 bodyfor purposes of evaluation of (i) any student or any student's performance,(ii) any employee or employment seeker's qualifications or aptitude foremployment, retention, or promotion, or (iii) qualifications for any licenseor certificate issued by a public body.

As used in this subdivision, "test or examination" shall include (a) anyscoring key for any such test or examination and (b) any other document thatwould jeopardize the security of the test or examination. Nothing containedin this subdivision shall prohibit the release of test scores or results asprovided by law, or limit access to individual records as provided by law.However, the subject of such employment tests shall be entitled to review andinspect all records relative to his performance on such employment tests.

When, in the reasonable opinion of such public body, any such test orexamination no longer has any potential for future use, and the security offuture tests or examinations will not be jeopardized, the test or examinationshall be made available to the public. However, minimum competency testsadministered to public school children shall be made available to the publiccontemporaneously with statewide release of the scores of those taking suchtests, but in no event shall such tests be made available to the public laterthan six months after the administration of such tests.

5. Records recorded in or compiled exclusively for use in closed meetingslawfully held pursuant to 2.2-3711. However, no record that is otherwiseopen to inspection under this chapter shall be deemed exempt by virtue of thefact that it has been reviewed or discussed in a closed meeting.

6. Vendor proprietary information software that may be in the officialrecords of a public body. For the purpose of this subdivision, "vendorproprietary software" means computer programs acquired from a vendor forpurposes of processing data for agencies or political subdivisions of theCommonwealth.

7. Computer software developed by or for a state agency, state-supportedinstitution of higher education or political subdivision of the Commonwealth.

8. Appraisals and cost estimates of real property subject to a proposedpurchase, sale or lease, prior to the completion of such purchase, sale orlease.

9. Records concerning reserves established in specific claims administered bythe Department of the Treasury through its Division of Risk Management asprovided in Article 5 ( 2.2-1832 et seq.) of Chapter 18 of this title, or byany county, city, or town; and investigative notes, correspondence andinformation furnished in confidence with respect to an investigation of aclaim or a potential claim against a public body's insurance policy orself-insurance plan. However, nothing in this subdivision shall prohibit thedisclosure of information taken from inactive reports upon expiration of theperiod of limitations for the filing of a civil suit.

10. Personal information, as defined in 2.2-3801, including electronic mailaddresses, furnished to a public body for the purpose of receiving electronicmail from the public body, provided that the electronic mail recipient hasrequested that the public body not disclose such information. However, accessshall 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 ( 2.2-4115et seq.).

12. Records relating to the negotiation and award of a specific contractwhere competition or bargaining is involved and where the release of suchrecords would adversely affect the bargaining position or negotiatingstrategy of the public body. Such records shall not be withheld after thepublic body has made a decision to award or not to award the contract. In thecase of procurement transactions conducted pursuant to the Virginia PublicProcurement Act ( 2.2-4300 et seq.), the provisions of this subdivisionshall not apply, and any release of records relating to such transactionsshall be governed by the Virginia Public Procurement Act.

(1999, cc. 485, 518, 703, 726, 793, 849, 852, 867, 868, 881, 2.1-342.01;2000, cc. 66, 237, 382, 400, 430, 583, 589, 592, 594, 618, 632, 657, 720,932, 933, 947, 1006, 1064; 2001, cc. 288, 518, 844, 2.2-3705; 2002, cc. 87,155, 242, 393, 478, 481, 499, 522, 571, 572, 633, 655, 715, 798, 830; 2003,cc. 274, 307, 327, 332, 358, 704, 801, 884, 891, 893, 897, 968; 2004, c. 690.)