December 12, 2000

Ms. Margaret Edds
The Virginian-Pilot, Richmond Bureau
Richmond, VA

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.

Sincerely,

Maria J.K. Everett
Executive Director