VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-04-10

November 19, 2010

Dan Vergano
USA Today
McLean, 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 electronic mail of October 22, 2010.

Dear Mr. Vergano:

You have asked two questions in regard to the responses you received to a records request you made to George Mason University (the University) under the Virginia Freedom of Information Act (FOIA). One question was in regard to whether the requested records are in fact public records the University must disclose under FOIA, and the other concerned the extent of the search performed by the University in responding to your request. As background, you requested "copies of information and documentary materials, including electronic mail and other communication" related to a climate change report authored by two University professors that was commissioned by the United States Congress in 2005 and released in 2006. You restricted the search by date to cover September 1, 2005 to the present. You specifically requested "background material for the report [that] was provided by a [named] political staffer." The University responded that it did not have the records you sought. The University did provide other documents that indicated that both professors did not use any University facilities, equipment, or resources in performing the work at issue, but instead worked on a pro bono basis at personal expense without state or federal funding. One professor also mentioned that his correspondence regarding the report was not handled through the University electronic mail system, and that the earliest electronic mail message the professor retained on the University system was dated July 20, 2009 (years after the report in question was issued). You were also provided a copy of an electronic mail message dated August 12, 2010 that was received by one of the professors on his University account, apparently because the named political staffer was also included in the distribution of that message.

Turning to your questions, you asked whether the records you requested are related to the transaction of public business and therefore subject to release under FOIA, given that the professors were identified in the report as University professors, the report was commissioned by a public body, and that the issue in question is of high public interest. As previously stated by this office, the general policy of FOIA expressed in § 2.2-3700 is to ensure ready access to public records in the custody of a public body or its officers and employees....The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. The definition of public record set forth in § 2.2-3701 includes all writings and recordings ... however stored, and 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. There is no doubt that the University, as a public institution of higher education established by the General Assembly, is a public body, and by extension, there is no question that a University professor is a public employee. Therefore any records prepared or owned by, or in the possession of a University professor are public records under FOIA if they are in the transaction of public business. However, as stated in the first opinion published by this office, the phrase in the transaction of public business is not defined in FOIA. In examining a similar issue, that opinion stated that electronic mail messages between members of a public body that are not related to the transaction of public business are not public records under FOIA, and therefore are not subject to its mandatory disclosure requirements. The fact that electronic mail messages go through a government agency’s electronic mail database does not, by itself, make them public records. It is also the subject of those electronic mail messages that determines their status as public records.¹

The circumstances you have presented are somewhat different from those in past opinions in that the professors assert they did not use the University's electronic mail system or other University resources or facilities in performing the work at issue. Accepting that assertion at face value, it still is not controlling in deciding whether the records in question are in fact public records subject to FOIA. Even if the professors only used personal electronic mail accounts and privately owned equipment in generating the records, the records could still be public records subject to FOIA because the professors are public employees, the records were prepared and possessed by them, and may have been in the transaction of public business. The final determination again depends on the subject matter or content of the records in question: were they in fact prepared in the transaction of public business? In this case, based on the facts you presented, the report was commissioned by and presented to Congress, not by the University. The professors and the University have asserted in the response to your request that the work performed was not part of the professors' duties at the University. Therefore the records are not in the transaction of the University's or the professors' public business.

You have noted that the work is of great public interest and was commissioned by a public body, which, based on the background provided, appears to be Congress. Given that background, it would appear that the work in question may have been performed in the transaction of public business, but again, it appears to be the transaction of the public business of Congress, not of the University. This situation highlights the fact that under Virginia FOIA, a public body is responsible for providing the records it uses in the transaction of its own public business. As the requested records do not appear to concern or relate to the transaction of the public business of the University, they would not be public records of the University.²

You also asked whether the University is required under FOIA to perform a search of its own electronic mail servers, as opposed to relying on the professors to provide any responsive records, given that it appears that the University asked the professors to provide responsive records but did not perform an independent search. FOIA does not specify the extent to which a public body must search for records in response to a request. Our research did not reveal any published opinions of the Virginia courts, Attorney General, or this office directly addressing this issue. However, in addressing the costs of a search,³ this office noted in a prior opinion that the law does not require that a public body make a detailed explanation of how the search was conducted.⁴ Also addressing charges, the Attorney General has opined that

assuming that the actual time and effort expended are reasonable under the circumstances, a "reasonable charge" is that which quantifies such time and effort. Factors to be taken into account in determining such costs include but are not limited to: number of hours reasonably necessary to compile, copy and assemble documents, cost of computer time used and costs of reproducing the records.⁵

As the circumstances of a search may vary depending on any number of factors, such as the nature and scope of the request, the volume of records being requested, the age of the records, the media upon which the records are recorded and the manner in which they are kept, there can be no bright-line rule setting forth exact requirements for every search.⁶ Questions of reasonableness are matters for the courts to decide. I would also note that if the extent of a search becomes an issue in litigation, it is within the powers of a court to order a public body to perform a search and to delineate the parameters of that search.⁷

Furthermore, FOIA states that [a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked as a matter of policy in § 2.2-3700. Implementing that policy, FOIA imposes a legal duty on the custodian of public records to respond to requests under subsection B of § 2.2-3704. One of the responses allowed is for the custodian to inform the requester that the records cannot be found or do not exist. As previously noted, FOIA also allows a public body to make reasonable charges not to exceed the actual cost of searching for records. As the Supreme Court of Virginia has stated, the law never presumes that a man will violate the law. Rather, the ancient presumption is that every man will obey the law....a similar presumption follows the public official into his office.⁸ Considering the policy of FOIA, the legal duties it imposes, and the presumption that public officials will obey the law in carrying out their duties, therefore, it must be presumed that while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith.

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 11 (2008)(citing Chapter 9.1 of Title 23 of the Code of Virginia (setting forth the statutes regarding the University) and Freedom of Information Advisory Opinion 1 (2000)(regarding the definition of in the transaction of public business)).
²Note that if you have questions regarding federal FOIA, you may wish to direct your inquiry to the Office of Government Information Services at the National Archives (http://www.archives.gov/ogis/, last visited November 19, 2010). The United States Department of Justice also provides resources regarding open government at the federal level on its website at http://www.justice.gov/open/ (last visited November 19, 2010).
³Pursuant to subsection F of § 2.2-3704, a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. [Emphasis added.]
⁴Freedom of Information Advisory Opinion 21 (2001).
⁵1983-1984 Op. Atty. Gen. Va. 436.
⁶Additionally, situations sometimes occur where no search is necessary, such as when a request is mistakenly directed to the wrong agency, or the agency has destroyed all copies of the requested records according to their retention schedule under the Public Records Act as evidenced by a certificate of destruction.
⁷See Burton v. Mann, 74 Va. Cir. 471 (Loudoun County 2008).
⁸WTAR Radio-TV Corporation v. City Council of the City of Virginia Beach, 216 Va. 892, 895, 223 S.E.2d 895, 898 (1976).