VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-18-04

August 31 , 2004

Mr. Andrew Shannon
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.

Dear Mr. Shannon:

You have 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.

By way 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."

You indicate 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.

Subsection 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.

In the 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.

In responding 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.

Finally, 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.

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

Sincerely,

Maria J.K. Everett
Executive Director