FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
31 , 2004
Newport News, 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 facsimile of May 13, 2004.
asked whether the Voter Registrar Office of the City of Newport
News ("the Registrar") violated the Virginia Freedom
of Information Act (FOIA) in its response to your request
for records. You also ask that the Virginia Freedom of Information
Advisory Council investigate the Voter Registrar Office concerning
ongoing FOIA violations.
of background, § 24.2-506 of the Code of Virginia requires
that candidates for office submit a petition signed by a specified
number of qualified votes in order to run for office. You
indicate that on April 22, 2004, you verbally asked the Registrar
to allow you to review petitions of qualified voters received
and certified by that office for Newport News City Councilwoman
Sharon P. Scott for the May 2002 local election. The Registrar
indicated that you would need to submit your request in writing
to review these records under FOIA. You indicate that on April
27, 2004, you delivered a letter requesting copies of "all
petitions, letters, memoranda, reports, and documents of any
kind that relate to the Certification of Election of Sharon
Scott, City Councilwoman representing the North District of
the City of Newport News, Virginia."
that on May 3, 2004, you went to the Registrar's office to
pick up the copies of the records that you had requested.
You state that you believe that the office did not comply
with your request, and therefore did not comply with FOIA,
because the page indicating who circulated the petition and
notarized the petition was missing. Upon further inquiry,
you were told that you were provided with all records responsive
to your request, and that no other page existed. However,
two days later, you indicate that another employee at the
Registrar's office told you that the page that you claimed
was missing had been stapled to the petition, of which you
received a copy, when it was originally submitted to the Registrar.
A of § 2.2-3704 states that [e]xcept as otherwise
specifically provided by law, all public records shall be
open to inspection and copying. In making a request for
records, subsection B of § 2.2-3704 only requires that
a request identify the requested records with reasonable specificity.
There is no need to make reference to FOIA in order to invoke
its provisions, nor is there a requirement that a FOIA request
be in writing. Subsection B of § 2.2-3704 also states
that in responding to a request, the public body must respond
within five working days and must either provide the records
in their entirety, respond in writing that the records will
be withheld in whole or in part and cite the applicable statutory
exemption that allows the records to be withheld, or state
in writing that it is practically impossible to respond within
five working days, which will give the public body seven additional
working days to respond.
facts you present, it appears that the initial verbal request
for records that you made on April 22, 2004 constituted a
FOIA request, and therefore invoked the requirements of FOIA.
The custodian of the records may ask that you put your request
in writing, for administrative purposes, but cannot refuse
to honor your request because it is a verbal request or require
you to put your request in writing. Therefore, the Registrar
was incorrect in requiring you to submit your request in writing
and should have responded by providing the requested records
within five working days of your initial verbal request.
to a request, a public body must provide all records that
are responsive to the request. If any responsive records are
withheld, an exemption must be cited in writing that allows
the custodian to withhold those records. If the Registrar
is the custodian of a record indicating who circulated the
voter petition and who notarized the petition, such a record
must be produced in response to your request or an exemption
that allows it to be withheld must be cited in writing. However,
determination as to whether such a record exists is a question
of fact to be determined by a court, and not by this office.
you asked this office to investigate the office of the Registrar
concerning ongoing FOIA violations. The statutory authority
of the Virginia Freedom of Information Advisory Council is
set forth at § 30-179. This office does not have the
statutory authority to investigate other government agencies
nor does it have any enforcement authority. Instead, this
office was established to offer guidance, upon request, to
both requesters and government agencies concerning the requirements
of FOIA to encourage and facilitate compliance with the law.
To the extent that the Registrar, or any other government
agency, has questions as to the application of FOIA, this
office is available to assist them.
you for contacting this office. I hope that I have been of