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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-05-06
May
25, 2006
John
Fenter
Virginia Beach, 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
received April 28, 2006 and electronic mail dated May 8, 2006.
Dear Mr. Fenter:
You have asked whether the Norfolk International
Airport Authority (the Authority) has failed to respond in
the time and manner required by the Virginia Freedom of Information
Act (FOIA) to certain requests for records. The facts regarding
this situation are set forth below, based upon the copies
of the request and response letters which you provided.
Your
initial request, made by letter dated March 8, 2006, requested
from the Authority a copy of any Federal or Virginia statute
or regulation authorizing the Airport Authority to search
any vehicle on airport property, outside the Federal "sterile
area," without prior probable cause or a valid search
warrant issued by a Federal or Virginia court. The Executive
Director of the Authority replied by letter dated March 10,
2006, and indicated that your request had been forwarded to
the Authority's legal counsel for response. Counsel for the
Authority (Counsel) denied your request by letter dated March
15, 2006, stating that your request was in substance,
a request for legal advice and/or legal research, and [FOIA]
is not applicable. Counsel's letter also cited 49 C.F.R.
§ 1520, after stating that both federal and state
law prohibit the release of sensitive security information.
Counsel suggested you contact the Transportation Security
Administration for more information.
In a subsequent letter addressed to the
Executive Director dated March 21, 2006, you indicated that
the March 15, 2006, response letter from Counsel was not responsive
to your FOIA request, and that you believed your rights under
FOIA had been violated. You concluded your letter of March
21, 2006, with a reiteration and clarification of your FOIA
request in the following language:
Please
provide me with any records held by your authority regarding:
1.
The history or circumstances relating to the erection of the
Norfolk Airport Authority signs on the access roads to the
Norfolk International Airport stating that "All vehicles
entering airport are subject to search."
2.
Any federal or Commonwealth of Virginia statute or regulation
authorizing the Norfolk Airport Authority, the Norfolk Airport
Police, or any other entity associated with the Norfolk Airport
International Airport to establish a policy that all vehicles
entering the airport are subject to search.
You also requested prior notification if
the estimated cost of providing these records would exceed
$30. In a reply letter dated March 27, 2006, Counsel indicated
that a response would be sent to you after the Authority received
advice from the Transportation Security Administration. It
appears that as of May 8, 2006, you have received no further
reply from the Authority regarding this request.
The
policy of FOIA, set forth by the General Assembly in §
2.2-3701, is to ensure the people of the Commonwealth
ready access to public records in the custody of a public
body or its officers and employees....Unless a public body
or its officers or employees specifically elect to exercise
an exemption provided by this chapter or any other statute...all
public records shall be available for inspection and copying
upon request. FOIA further provides in § 2.2-3704
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 during the regular office
hours of the custodian of such records.
In considering
any records request, the initial step is to determine whether
the records sought are public records subject to
FOIA. Public records are defined in § 2.2-3701
to include any record, regardless of physical form or
characteristics, prepared or owned by, or in the possession
of a public body or its officers, employees or agents in the
transaction of public business. Your request of March
8, 2006, and your second enumerated request of March 21, 2006,
both asked for any federal or Virginia statute or regulation
authorizing certain searches to be conducted by the Authority.
While the Authority could choose to provide such information,
the opinion of this office is that such a request is not a
request for public records as contemplated by FOIA.
Statutes and regulations are publicly available through numerous
other sources.1 In Virginia, all statutes and regulations are
published and publicly available, pursuant to laws outside
of FOIA, such as the Administrative Process Act, Ch. 40 of
Title 2.2, and the enabling statute for the Virginia Code
Commission, Ch. 15 of Title 30. The Virginia Code Commission
has the specific statutory duty to publish the Code of Virginia,
the Virginia Administrative Code, and the Register of Regulations.2
It is not the responsibility of other public bodies to provide
copies of these statutes and regulations, although many choose
to do so. For example, this office publishes a copy of FOIA
on its website, and we are happy to provide paper copies of
FOIA upon request as well. Similarly, the Authority could
choose to provide copies of statutes and regulations relevant
to its work, but FOIA does not require it to do so.
While
your request for statutes and regulations is not a request
governed by FOIA, your other request from your letter of March
21, 2006, does request public records subject to
FOIA. That request asks for any records regarding the history
or circumstances relating to the posting of certain signs
by the Authority. That request therefore encompasses records
such as meeting minutes, memoranda, work orders, receipts,
or other records concerning the posting of the signs, all
of which fall within the definition of public records
(although exemptions may still apply). As such, the Authority
should have provided you with one of the four responses permitted
under § 2.2-3704 within five working days of the receipt
of your request: (1) provide the records; (2) deny your request
in writing, citing the appropriate exemption(s) that allow
the Authority to withhold the records; (3) provide the request
records in part and deny your request in part, again citing
the appropriate exemption(s) in writing that allow portions
of the request to be withheld; or (4) inform you in writing
that the Authority needed an additional seven working days
to respond. If the public body needs more than the additional
seven working days to respond, FOIA requires the public body
to make reasonable efforts to reach an agreement with you,
the requester, concerning the production of records. If no
agreement is reached, the public body may then petition a
court for additional time to respond.
Based upon the correspondence you provided,
it appears that your request letter was dated Tuesday, March
21, 2006 and the response to that letter was dated Monday,
March 27, 2006. While it is not known precisely when the Authority
received that request, it appears that the response was sent
within the five working days allowed by FOIA.3 However, the
response itself was not one of the four responses permitted
by FOIA. In the response, the Authority acknowledged receipt
of your request and stated that the Authority would respond
further after receiving advice from the Transportation Security
Administration. The Authority did not provide the requested
records, did not deny your request pursuant to an exemption,
and did not invoke the additional seven working days to respond
allowed under FOIA. Additionally, based upon your correspondence,
it appears that the Authority did not attempt to reach an
agreement with you concerning the production of the requested
records, and did not petition a court for additional time
to respond. Based upon your electronic mail of May 8, 2006,
it appears that as of that date, the Authority has not supplemented
its response. Thus, in regard to this request for records
regarding the history and circumstances of the signs, it appears
that the Authority has failed to comply with the procedure
for responding to requests as mandated by FOIA.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1For
example, statutes are published in the Acts of Assembly, as
well as in the Code of Virginia. Regulations are published
in the Virginia Administrative Code. Printed versions of these
resources are available at many libraries, including court
libraries, law school libraries, and the Virginia Legislative
Reference Center. Both the Code of Virginia and the Virginia
Administrative Code are also available online through the
Legislative Information System at http://lis.virginia.gov.
2See Code of Virginia § 30-146.
3If the request was received the same day it was
dated, Tuesday, March 21, 2006, then the fifth and final day
to respond would have been Tuesday, March 28, 2006. Presuming
that the response was sent on the day it was dated, March
27, 2006, it was therefore sent within the five working day
time limit.
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