FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
William T. Coleman
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 February 11, 2008.
Dear Mr. Coleman:
have asked whether the Virginia Department of Motor Vehicles
(DMV) violated the Virginia Freedom of Information Act (FOIA)
in two ways: (1) by failing to respond to your records request
within the five working days allowed by FOIA, and (2) by failing
to provide public records you requested relating to the authority
of DMV to allow certain taxicabs to be issued Virginia license
plates. You stated that you requested the following records
from DMV on January 18, 2008: copies of any records
related to DMV authority to allow taxicabs licensed
in the District of Columbia (D.C.) and owned/operated by residents
of Virginia to be issued Virginia license plates in addition
to the D.C. plates already on the vehicle. [Bold emphasis
in original.] You stated that DMV responded to you on January
28, 2008, stating that it does not have any information
in our records that we can provide to you.
further indicated that in other correspondence DMV had told
you that taxicabs may have dual registration in D.C. and Virginia,
but that authority was not found in the Code of Virginia.
Other correspondence indicated that DMV had been given authority
to register taxicabs in both D.C. and Virginia per §
46.2-658 of the Code of Virginia. However, you stated that
that Code cited only applied to nonresidents, and therefore
did not cover residents of Virginia who own or operate such
taxicabs in D.C. Against this background, you noted in your
request for an advisory opinion from this office that you
do not seek statutes, regulations, or legal research regarding
DMV's authority.1 Instead, you seek any public
records concerning the history or circumstances relating to
how the DMV determined its authority in this matter, such
as meeting minutes, memoranda, or other relevant records.
Subsection B of § 2.2-3704 requires that a request
for public records shall identify the requested records with
reasonable specificity. The phrasing of your request
would encompass records such as meeting minutes and memoranda,
but it is also broad enough that it could be read to include
statutes, regulations, and other legal authority. Given the
prior correspondence you mentioned concerning DMV's legal
authority and sections of the Code of Virginia, it appears
plausible that DMV may have interpreted your requested as
seeking statutes, regulations, and similar legal authority.
If you have not already done so, it may be helpful to further
clarify the scope of your request just in case DMV has misinterpreted
it in good faith. In any case, while there may have been some
confusion in this regard, it does not appear that DMV denied
your request in whole or part on the basis that it requested
legal authority rather than public records. If there was any
confusion regarding the extent of your request, the best course
of action would have been for DMV to contact you to clarify
what records you sought.2
your first question concerning the timing of DMV's response,
subsection B of § 2.2-3704 requires a public body that
is the custodian of records to respond to a request promptly,
but in all cases within five working days of receiving a request.
Weekends and legal holidays do not count as working
days when computing the timing of a response. The first
day to respond is the first working day after the
request was actually received. You indicated that you made
your request on January 18, 2008, which was a Friday, and
that DMV responded on January 28, 2008, which was a Monday.
Because Saturday and Sunday are generally not counted as working
days, the first day on which to respond after receipt
of your request would have been Monday, January 21, 2008.
However, that was Martin Luther King, Jr., Day, a legal holiday,
which also is not considered a working day. Therefore
the first working day to respond was actually Tuesday,
January 22, 2008. Counting forward, the fifth and final working
day to respond (again, not counting the weekend) was
Monday, January 28, 2008, the day DMV actually responded.
Therefore DMV responded to your request on the fifth working
day after receiving that request, in compliance with FOIA.
your second question, concerning the response made by DMV,
subsection B of § 2.2-3704 provides five responses a
public body may make to a records request. The first response
is to provide the requested records within five working days
of receipt of the records request. The second and third responses,
under subdivisions B 1 and B 2 of 2.2-3704, provide for denials
in whole and in part, and require that any denial of a request
cite, as to each category of withheld records, the specific
Code section that authorizes the withholding of the records.
The fourth response, under subdivision B 3 of § 2.2-3704,
is to inform the requester that [t]he requested records
could not be found or do not exist. The fifth response,
under subdivision B 4 of § 2.2-3704, allows a public
body to invoke an additional seven working days to respond.
Any response other than providing the requested records must
be made in writing.
quoted DMV's response to your request as follows: DMV
does not have any information in our records that we can provide
to you. You further stated that you believe DMV's response
may mean that DMV has responsive records on file, but has
elected not to provide them to you. Because DMV did not cite
an exemption allowing the records to be withheld, you believe
this response to be in violation of FOIA. If this is the case,
that DMV has responsive records but failed to provide them
to you, and did not cite an appropriate exemption allowing
those records to be withheld, then that would be a clear violation
of FOIA. However, in the alternative, DMV's response may also
be interpreted as a statement that DMV has no responsive records,
that the records could not be found or do not exist,
as provided for by subdivision B 3 of § 2.2-3704. If
in fact DMV has no records responsive to your request, then
this response is not in violation of FOIA. However, while
DMV has not necessarily violated FOIA, it should use clearer
language in the future.3 The situation was addressed in prior
opinions of this office wherein it was opined that public
officials would be well advised to clearly state when requested
records do not exist in order to avoid confusion and frustration
on the part of the requester.4 I would like to take this opportunity
to reiterate that advice, and remind both public bodies and
requesters that clear communication is essential to the smooth
and efficient operation of FOIA.
Thank you for contacting this office. I
hope that I have been of assistance.
you noted, Freedom of Information Advisory Opinion 05 (2006)
opined that requests for statutes, regulations, and general
legal authority are not public records requests as contemplated
2See, e.g., Freedom of Information Advisory
Opinion 01 (2008).
3For example, this office publishes a sample response
letter available online at http://foiacouncil.dls.virginia.gov/sample%20letters/welcome.htm
that public bodies may use to clearly state when they have
no records responsive to a request.
4See Freedom of Information Advisory Opinions
05 (2005), 25 (2004), and 16 (2004).