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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH 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).
3
I 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).
5
Freedom of Information Advisory Opinion 05 (2007).

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