|
|
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-06-14
September
26, 2014
Lynn
Julia Pendlebury Colby
Alexandria, 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 letter dated August 5, 2014.
Dear
Ms. Colby:
You have asked whether the responses to six records
requests you made to the City of Alexandria were late
and in violation of the Virginia Freedom of Information
Act (FOIA). You further inquired regarding "what
sanctions and/or corrective measures does the Virginia
FOIA Council recommend" if the responses were
in violation of FOIA. The short answers to your two
questions are that given the facts you have stated,
it appears that several of the responses to your requests
were late, but as enforcement of FOIA is left to the
court, this office cannot offer any recommendations
on sanctions or other corrective measures.
As background, you provided an enumerated list of
the six requests and responses, as well as copies
of each request and response letter. You indicated
that all of the requests except the first were hand
delivered to the Office of the City Attorney. It appears
that all of your requests concerned records relating
to the Alexandria Old Town Farmers Market. The content
of the responses varied, but all appear to be responses
permitted by FOIA: some records were provided, some
were withheld pursuant to applicable exemptions, and
the City stated it did not have some of the requested
records. You did not ask any questions about the substance
of the responses, only the timing. More detailed analysis
and further information about each request and response
is set forth separately below.
In analyzing a FOIA matter, the first consideration
must always be whether the entity receiving the request
is a public body subject to FOIA. In this
instance there is no doubt that the City is a public
body subject to FOIA as the definition of public
body in § 2.2-3701 specifically includes
any political subdivision of the Commonwealth,
including cities. As you know, subsection B of
§ 2.2-3704 sets forth the requirements for responding
to a request for public records as follows: Any
public body that is subject to this chapter and that
is the custodian of the requested records shall promptly,
but in all cases within five working days of receiving
a request, provide the requested records to the requester
or make one of [four other] responses in writing.
While working days is not defined in the
statute, as previously opined by this office, weekends
and legal holidays do not count as working days
when computing the timing of a response.1
The first day to respond is the first working
day after the request was actually received.
Subdivision B 4 of § 2.2-3704 provides for an
extension of the response time as one of the four
alternative responses:
It
is not practically possible to provide the requested
records or to determine whether they are available
within the five-work-day period. Such response shall
specify the conditions that make a response impossible.
If the response is made within five working days,
the public body shall have an additional seven work
days in which to provide one of the four preceding
responses.
Additionally,
subsection C of the same section provides that if
a public body still needs more time, then the public
body is to make reasonable efforts to reach an agreement
with the requester on the production of records. If
no agreement may be reached, then the public body
may petition a court for more time. However, you did
not present any facts stating that there were any
such agreements reached or petitions filed in this
case.
You described your first request and response as follows:
"Request dated and mailed from Florida January
14, 2013. First response Jan. 25 claims the request
was received on Jan. 25. Extension letter is dated
February 1. Substantive response is dated Feb. 14,
at least two business days late." Checking a
calendar shows that January 25, 2013 was a Friday.
Presuming this is the date the request was received,
then the first working day to respond would
have been Monday, January 28, 2013, and the fifth
day to respond was Friday, February 1. Therefore it
appears that the extension letter was sent within
the first five working days, granting the
City an additional seven working days to
respond. The first of those seven additional working
days would have been Monday, February 4, 2013;
the seventh additional working day would
have been Tuesday, February 12, 2013. Additionally,
while it does not appear that any of the weekdays
between January 25 and February 14 were legal holidays,2
it is unknown whether City offices might have been
closed for some other reason, such as inclement weather.
Any day that City offices were closed would not have
been a working day for FOIA purposes. Presuming
there were no such intervening holidays or other days
when the City offices were closed (for example, snow
days due to inclement weather), then you would appear
to be correct that the response dated February 14,
2013 was sent two days late.
However, you described this response as the "substantive
response." Presumably your description distinguishes
this response from the extension letter received earlier,
but it is not known whether there was any other response
made or agreement reached between the date of the
extension and the date this "substantive response"
was sent. If there were any such other response made
within the specified time frame, or a separate agreement
made that is not evident from the materials provided,
those things could change the conclusion that the
City's response was late.3 Similar considerations
would apply to all FOIA requests - generally speaking,
different public bodies may have different working
days, as they may close for various reasons,
and of course, requesters and public bodies may always
reach their own agreements on the terms of production
of public records.
You described your second request and response as
follows: "Request dated and delivered February
13, 2013. Substantive response is dated February 22,
two business days late." Again checking a 2013
calendar, February 13 was a Wednesday. Treating that
Wednesday as the day the request was received, the
fifth working day to respond would at first
appear to be Wednesday, February 20. However, Monday,
February 18 was Presidents' Day and would not be counted
as a working day. Therefore the fifth day
to respond would have been Thursday, February 21.
Again presuming there were no other days within this
date range when City offices were closed, then it
would appear that the response sent on Friday, February
22 would have been one day late.
You indicated the response to your third request was
received within the statutory time limits, and so
it need not be considered further for purposes of
this opinion.
You described your fourth request and response as
follows: "Request dated and delivered March 22,
2013. City incorrectly claims it was received on March
25. Substantive response is dated April 1, one business
day late." If the request was in fact received
on Monday, March 25, 2013, then the fifth working
day to respond would have been Monday, April
1, 2013, which would have been on time. On the other
hand, if it was received on Friday, March 22, 2013
the response should have been sent by Friday, March
29, and you would be correct that the response sent
on Monday, April 1 was sent one day late. However,
this office cannot resolve factual disputes; only
a court has that authority.
You described your fifth request and response as follows:
"Another request dated and delivered March 22,
2013. Substantive response is dated April 4, four
business days late." As described previously,
the fifth day to respond to a request made on Friday,
March 22, 2013 would have been Friday, March 29. Absent
any other intervening factors, a response sent on
Thursday, April 4, 2013 would have been four working
days late.
You described your sixth request and response as follows:
"Request dated and delivered September 3, 2013.
City incorrectly claims it was received on Sept. 4.
I assume there was an extension letter, although I
can find no record of one. Substantive response is
dated Sept. 25, at least four business days late."
If the request was received on Wednesday, September
4, 2013, then the fifth day to respond would have
been Wednesday, September 11. Presuming that an extension
letter was sent within those first five working
days, the additional seven working days
would extend the response deadline to Friday, September
20. A response dated Wednesday, September 25, 2013
would therefore be three working days late
under those facts. If the request was made September
3, 2013, instead, then you would be correct that a
response dated September 25 would have been four working
days late. In either case, the facts you provided
appear to show that the response was late, whether
by three working days or four, presuming
that there was a standard seven-day extension but
no other agreement in place allowing the City additional
time to respond.
In addition to inquiring whether these responses were
late, you also inquired regarding "what sanctions
and/or corrective measures does the FOIA Council recommend."
The statutory powers and duties of the FOIA Council
set forth in § 30-179 do not include the ability
to mete sanctions or otherwise enforce FOIA. The opinions
of this office are advisory, not legally binding,
and do not carry enforcement authority. Only a court
may enforce the provisions of FOIA.4 Pursuant
to § 2.2-3713, the statutory remedy for a FOIA
violation would be to bring a petition for mandamus
or injunction, supported by an affidavit showing good
cause, in either general district or circuit court.
The possible remedies a court may order may be as
varied as the possible violations; only a court may
determine what remedy is appropriate under a particular
set of facts.5
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 Opinions 01 (2009), 02 (2008),
and 08 (2007).
2See
Va. Code § 2.2-3300 (designating which days are
legal holidays).
3I
did note that all of your requests used similar
language and organization, and that the fourth, fifth,
and sixth requests specifically stated that you would
not agree to an extension of the statutory time limits.
The first three requests did not contain any such
language concerning time limits. This difference makes
it seem that perhaps at some point the City had attempted
to negotiate for additional time beyond the statutory
time limits, and in your latter requests you were
preemptively stating you would not agree to such extensions.
However, as you offered no specific statements or
materials about any such negotiations, this opinion
is based on the assumption that there were no such
negotiations and no agreements regarding extending
the statutory time limits.
4Freedom
of Information Advisory Opinion 17 (2002).
5Freedom
of Information Advisory Opinion 05 (2007). |