VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-11-03

April 30, 2003

Mr. McKinley Bailey, Jr.
Spring Grove, Virginia

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 correspondence of February 21, 2003.

Dear Mr. Bailey:

You have asked a question concerning access to salary information of employees of Surry County ("the County") under the Virginia Freedom of Information Act (FOIA). You indicate that you made the following FOIA request:

In response to your request, the County sent you one record -- a list of employees with their job titles and salary for the fiscal year 2002-2003. The record also listed bonuses awarded to certain employees on December 15, 2002. The response did not mention if any of the salary information had changed between July 1 and January 1. You indicate that you sent a follow-up request, asking for salary data as of July 1, 2002, and salary data of January 1, 2003. In your follow-up request, you stated that you had "asked for salary data that were relevant to two distinct periods in time: July 1, 2002 and January 1, 2003. You did not provide the information I requested." Your request also referred the County Administrator to your first request, and asked that the records that you requested be provided. The County responded that they had fully responded to your first request, and had provided you with all of the records responsive to your request. You ask if you are entitled to the salary records for the dates that you have requested.

Subsection A of § 2.2-3704 of the Code of Virginia requires that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Subsection B of § 2.2-3705 states that nothing in FOIA should be construed to deny access to records of the position, job classification, official salary or rate of pay of, and records of the allowances or reimbursements for expenses paid to any officer, official or employee of a public body.

FOIA would entitle a requester to the salary information of county employees for a particular date(s). Upon request, the County would be required to provide a list of the salaries as of July 1, 2002, and another list of salaries as of January 1, 2003. Generally, subsection D of § 2.2-3704 states that a public body does not need to create a new record in response to a FOIA request if the record does not already exist, but a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. However, because FOIA affirmatively requires that salary information be available for public access, a public body would be required to create such a record if it did not exist at the time of the request as an exception to the general rule stated above.

Some confusion may have resulted from your original request because it asked for January 1, 2003, salary records if different from July 1, 2003 salary records. (Emphasis added.) You clearly requested records indicating salary information as of July 1, 2002. However, the request for salary records as of January 1, 2003, appears to be contingent on the data having changed since July 1, 2002. As noted above, a public body is not required under FOIA to abstract or summarize from records unless there is mutual agreement between the requester and the public body. The nature of the County's response -- providing general information for the fiscal year -- indicates that perhaps none of the salaries had changed since July 1, 2002, and thus no additional records were provided in response to your request, although the County never specifically indicated that this was the case. It appears that the inclusion of salary bonus records as of December 15, 2002, was an attempt to respond to the contingency stated in your initial request. Your second request more clearly asked for two sets of records, even though it still referred the County back to your original request.

If you are interested in comparing the salaries of the county employees on two different dates, it may be up to you to compare the records. In asking the County to supply a certain record only if it differs from another record, you are in essence asking a public body to abstract or summarize information. A better approach may be to simply request the salary information for all employees as of July 1, 2002, and January 1, 2003, and perform the comparison yourself, without making mention that you only want the second record if it differs from the first. Even if the salary records do not already exist for these distinct time periods, the County would be obligated to create these records in response to your request.

One final note may be helpful in this instance. Making and responding to FOIA requests is not meant to be adversarial. FOIA primarily sets out the procedural responsibilities of the parties involved. It requires a requestor to be reasonably specific in identifying the records sought and the public body that is the records custodian to produce those records, unless exempted, in the required time period. If a request is unclear, it may be advisable for a public body to contact the requester to clarify any ambiguities. FOIA, however, does not require this. Dialogue between the parties helps facilitate the production of the records sought, which is the intent of the law.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director