December 12, 2000
Ms. Margaret Edds
The Virginian-Pilot, Richmond Bureau
The staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing staff
advisory opinion is based solely upon the information presented
in your written inquiry of November 7, 2000, and accompanying
Dear Ms. Edds:
You have asked for an opinion based upon the Department of
Correction's (DOC) response to your request under the Virginia
Freedom of Information Act (FOIA) and whether the exemptions
claimed by DOC were properly invoked. Specifically, you asked
DOC how many first-time felony offenders incarcerated in 1983
and never released were still in the Virginia prison system.
You requested this information to be listed by category of
primary offense and the number of people in each category
still incarcerated. DOC refused your request, citing subsection
D of § 2.1-342 of the Code of Virginia, which does not require
a public body to create a new record, and subsection H of
§ 2.1-342, which does not require a public body to produce
records in an electronic format not used by the body.
Your notes accompanying your inquiry to this office indicate
that DOC maintains the information you have requested in two
databases: a "new commitments file" for 1983, and a "confined
file" for 2000. As an opinion of the Attorney General has
pointed out, for FOIA purposes "it is important to distinguish
between a request for information and a request for documents."1
FOIA is concerned with providing access to public records.
Thus, while FOIA does require all public records to be open
for inspection, subsection D of § 2.1-342 does not require
a public body to create a record that does not already exist.
It would appear from your inquiry that DOC does not currently
maintain the information you have requested, but would have
to merge information from separate sources. The same FOIA
section gives the public body the discretion to abstract or
summarize the requested information, but does not obligate
a public body to do so. Therefore, it appears that if DOC
does not maintain the information you have requested in a
single document, it is not required by law to create the document
and subsection D of § 2.1-342 has been properly invoked.
Your inquiry indicates that DOC also cited subsection H of
§ 2.1-342, which states that a public body is not required
to produce a public record in a format not regularly used
by that public body. It appears from the context of the request
that DOC has cited this provision in response to your asking
to list the information by categories of offenses and the
number of individuals still incarcerated under each of those
categories. It is the opinion of this office that the format
referred to in subsection H refers to the physical characteristics
or medium of the document, such as whether it is saved on
electronic tape, paper, or disk. The provision requires that
a public body provide a public record in a requested medium
if regularly used in the course of business by the body. Thus,
a public body that maintains certain documents only on paper
would not have to convert the information to a computerized
version that it did not normally use in responding to a particular
request. DOC's reliance on this provision in response to the
request to itemize the information in a particular fashion
is misplaced. This request relates to creating a new document,
as discussed above, but not a new format.
Also, please note that the law does not make a distinction
in the statutory duties of a public body between responding
to a request for electronic records or a request for paper
records. If a requested record contains both exempt and nonexempt
information, subsection B. 3. of § 2.1-342 requires that only
the exempt portion may be deleted or excised, and the remainder
of the record must be released. Likewise, subsection G of
§ 2.1-342 imposes the same standard on public bodies when
providing electronic records. It states that [w]hen 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.
(Emphasis added). Thus, regardless of the physical medium
of the requested record, exempt information may be deleted
and the remainder of the record must be provided to the requester.
Deleting exempt information from an electronic file is not
considered creating a new record for the purposes of FOIA.
In the context of your particular requests to DOC, it appears
that while DOC is under no obligation to combine the information
from the two databases to create a record for you, as discussed
above, you may be entitled to the raw data you have requested
from each of the two databases. If all or a portion of the
information stored in the 1983 database file and the 2000
database file is nonexempt or its release is not otherwise
prohibited by law, then it is releasable. You, in turn, can
then use the raw data to create the specific types of lists
that you initially requested.
Thank you for contacting this office. I hope that I have
been of assistance.
Maria J.K. Everett