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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-12-07
October
29, 2007
Marsha
Maines
Via Electronic Mail
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 electronic mail of August 31, September 4, and September
30, 2007.
Dear
Ms. Maines:
You
have asked whether the Division of Child Support Enforcement
(DCSE) of the Virginia Department of Social Services (DSS)
properly denied your request for records of the names, addresses,
phone numbers, and case numbers of adults involved in open
DCSE cases for a single county in Virginia. Specifically,
you indicated that you are interested in information about
non-custodial parents, not information about applicants for
or recipients of DSS services. You indicated that you feel
this information should be public since DSS publishes "most
wanted" posters and information about those in arrears
in newspapers and other media.
As an
initial matter, it is not entirely clear what response you
received from DSS. Copies of the actual response(s) from DSS
were not included with the correspondence you provided to
this office. The correspondence you provided appears to indicate
that DSS initially denied your request without citing a statutory
exemption, but later supplemented the initial response after
you requested the statutory authority allowing DSS to withhold
records. FOIA sets forth a clear procedure to follow if a
public body is going to deny a request for records. If a public
body is going to withhold requested records in their entirety,
as appears to be the case here, subdivision B 1 of §
2.2-3704 requires the public body to provide a written response
that identifies with reasonable particularity the volume
and subject matter of withheld records, and cite, as to each
category of withheld records, the specific Code section that
authorizes the withholding of the records. In a situation
where the request is denied in part but some records are provided,
then subdivision B 2 of the same section requires the public
body to provide a written response that identifies with
reasonable particularity the subject matter of withheld portions,
and cite, as to each category of withheld records, the specific
Code section that authorizes the withholding of the records.
Denying a request without providing an appropriate written
response as set forth in these subdivisions would be a procedural
violation of FOIA. Again, it is not clear whether any such
violation occurred in the instant situation, but public bodies
need to be mindful of these procedural requirements whenever
a request is denied.
Next,
we move to consider whether the records at issue are subject
to mandatory disclosure under FOIA. Subsection A of §
2.2-3704 sets forth the general rule governing disclosure
of public records under the Virginia Freedom of Information
Act (FOIA): Except 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. Subdivision
14 of § 2.2-3705.5 provides a discretionary exemption
for [r]ecords, information and statistical registries
required to be kept confidential pursuant to §§
63.2-102 and 63.2-104. In full, § 63.2-102 reads
as follows:
A.
All records, information and statistical registries of the
Department and local boards and other information that pertain
to public assistance and child support enforcement provided
to or on behalf of any individual shall be confidential
and shall not be disclosed except to persons specified hereinafter
and to the extent permitted by state and federal law and
regulation. The local boards shall allow the Commissioner,
at all times, to have access to the records of the local
boards relating to the appropriation, expenditure and distribution
of funds for, and other matters concerning, public assistance
under this title.
Except
as provided by state and federal law and regulation, no
record, information or statistical registries concerning
applicants for and recipients of public assistance and child
support shall be made available except for purposes directly
connected with the administration of such programs. Such
purposes include establishing eligibility, determining the
amount of the public assistance and child support, and providing
social services for applicants and recipients. It shall
be unlawful for any person to disclose, directly or indirectly,
any such confidential information, and any person violating
these provisions shall be guilty of a Class 1 misdemeanor.
B.
If a request for a record or information concerning applicants
for and recipients of public assistance or child support
is made to the Department or a local department for a purpose
not directly connected to the administration of such programs,
the Commissioner or local director shall not provide the
record or information unless permitted by state or federal
law or regulation.
Because
§ 63.2-102 states that records to which it applies shall
not be disclosed except as specified, it removes the
discretion the custodian would otherwise have under FOIA in
choosing whether to invoke an exemption. Additionally, one
who improperly discloses confidential records in violation
of the prohibitions of § 63.2-102 may also be subject
to criminal misdemeanor penalties. In other words, if §
63.2-102 applies, the custodian must deny the request
and withhold the records. Thus the question becomes whether
§ 63.2-102 applies to the specific records you requested
concerning non-custodial parents who are not recipients of
or applicants for DSS services.
The
first sentence of subsection A of § 63.2-102 states that
[a]ll records, information and statistical registries
of the Department and local boards and other information that
pertain to public assistance and child support enforcement
provided to or on behalf of any individual shall be confidential
and shall not be disclosed except to persons specified hereinafter
and to the extent permitted by state and federal law and regulation.
You indicated that you do not feel this exemption applies
to the records you requested because those records concern
non-custodial parents, not applicants for and recipients
of public assistance and child support. You are correct
that the second paragraph of subsection A and subsection B
both refer specifically to records concerning applicants
for and recipients of public assistance and child support.
However, the initial prohibition on release set forth in the
first paragraph of subsection A clearly applies to all
records...that pertain to public assistance and child support
enforcement provided to or on behalf of any individual.
Your request was made against the background of child support
enforcement actions. Within that context, it is presumed that
DSS maintains records concerning non-custodial parents who
are not recipients of or applicants for DSS services as records
that pertain to...child support enforcement provided to
or on behalf of a custodial parent, guardian, or child
(i.e., an individual who is a recipient of or applicant for
such services). To that extent, it appears on its face that
§ 63.2-102 prohibits the release of such records concerning
non-custodial parents. Because § 63.2-102 is a mandatory
prohibition on release, it supersedes the disclosure provisions
of FOIA as otherwise specifically provided by law
under subsection A of § 2.2-3704. Note that if DSS has
records concerning non-custodial parents in some other context
to which no prohibition applies, then those records would
be subject to disclosure under FOIA. Additionally, records
put forth into the public domain on "wanted" posters,
newspaper advertisements and the like should also be disclosed
upon request, as they have already been publicly disseminated
(and presumably such dissemination is not prohibited by §
63.2-102).
As a
final matter, I note that the authority of this office is
limited to FOIA matters. As opined earlier this year, the
powers and responsibilities of the Freedom of Information
Advisory Council (the Council) are set forth in § 30-179.
Subdivision 1 of that section empowers the Council to [f]urnish,
upon request, advisory opinions or guidelines, and other appropriate
information regarding the Freedom of Information Act (§
2.2-3700 et seq.) to any person or agency of state or local
government, in an expeditious manner. This office offers
opinions and guidance only in regard to FOIA. Other laws will
be considered as they directly relate and interact with FOIA,
but this office does not and cannot offer opinions solely
concerning laws outside of FOIA.1 Thus this office considers
§ 63.2-102 only as it interacts with FOIA as incorporated
by subdivision 14 of § 2.2-3705.5, and giving the language
of § 63.2-102 a plain reading as it appears on its face.
This office cannot and does not offer any independent interpretation
of § 63.2-102, its terms, scope, or application outside
of the FOIA context.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Freedom
of Information Advisory Opinion 04 (2007). |