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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-01-17

January 10, 2017

Andrew Shannon
State Vice President and Chapter President
Southern Christian Leadership Conference (SCLC)
Peninsula District Chapter SCLC
Newport News, VA

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 December 6, 2016.

Dear Mr. Shannon:

You have asked whether the City of Newport News (the City) violated the Virginia Freedom of Information Act (FOIA) by failing to respond to your request for records, and if so, what remedies are available. You also asked whether FOIA applies to a municipal government such as the City and to an economic or industrial development authority. As background, you stated that on November 21, 2016 you made a request to a City employee for a written copy of the City's and the Newport News Economic/Industrial Development Authority's (NNEDA) policies on the use of Sherwood Shopping Center (the shopping center) for parades and marches. Specifically, you stated that you requested "all letters, memoranda, reports and documents of any kind that related to the Sherwood Shopping Center Policies on the Use of Sherwood Shopping Center for assembly and disassembly for Parades and Marches, including written policies and procedures." You stated that you also made the same request to the City Manager by electronic mail on November 21 and in conversation on November 22, 2016. You further stated that as of December 6, 2016 you had received no response to your requests.

The policy of FOIA stated in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees" because "[t]he 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." To implement FOIA's policy of ready access to public records, subsection A of § 2.2-3704 provides that "[e]xcept 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." In responding to a request, subsection B of § 2.2-3704 requires that "[a]ny 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" one of five responses. In summary, those five responses are to (1) provide the records; (2) deny the request, citing the appropriate exemption(s); (3) provide the records in part and deny in part, again citing the appropriate exemption(s); (4) inform the requester that the records could not be found or do not exist; or (5) invoke an additional seven working days to respond.1 The public body must respond in writing if it gives any response other than providing the requested records. Additionally, subsection E of § 2.2-3704 provides that "[f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter." In examining the timing of a response to a request for public records, note that working days is not defined in FOIA, but as previously opined by this office, 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.2 Also as previously opined, the five working day time limit refers to the time when a request is received by the public body and when a response is sent by the public body; it does not refer to the time when the response is received by the requester.3

Turning to your questions, first note that § 2.2-3701 defines the term "public body" to include "any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions." [Emphasis added.] This definition specifically includes cities and authorities, making clear that the City and NNEDA are both public bodies subject to FOIA. You did not state that you made a separate request to NNEDA, and it is not known whether anyone forwarded your request from the City to NNEDA. For purposes of this opinion we therefore address your inquiry as a request made to the City through its employee and the City Manager. You may wish to make a separate request directly to NNEDA if you have not done so already.

Examining the timing of your request, your initial request was made on Monday, November 21, 2016. Therefore the first day in calculating the five working days would have been Tuesday, November 22, 2016, which would have required a response to be sent on Monday, November 28, 2016 except as noted below. The City calendar on the City website4 indicates that City offices were closed for the Thanksgiving holiday on November 24, 2016, but does not indicate that City offices were closed on Friday, November 25, 2016.5 If City offices were open and Friday, November 25, 2016 was a working day for the City, then the fifth and final day to send a response would have been Tuesday, November 29, 2016. If City offices were in fact closed, then that Friday was not a working day and the fifth and final day to send a response would have been Wednesday, November 30, 2016. You stated that as of Tuesday, December 6, you had received no response. If the City received the request and simply did not respond, then that failure to respond would be "deemed a denial of the request and shall constitute a violation of [FOIA]" pursuant to subsection E of § 2.2-3704.6

You also asked what remedy there is for a FOIA violation. The statutory remedy for a FOIA violation is to bring a petition for mandamus or injunction with an affidavit showing good cause as provided for in § 2.2-3713. Generally speaking, such a petition asks a court to order a public body either to do something required under FOIA that the public body did not do (mandamus), or not to do something that would be in violation of FOIA (injunction). The specifics of any given order may vary widely as courts may craft orders that are appropriate to each situation. Legally speaking, it is important to note that FOIA provides for a statutory mandamus procedure which is significantly different from a writ of mandamus at common law.7 At common law, mandamus is an extraordinary remedy that "only issues when there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy."8 Under FOIA, however, the Supreme Court of Virginia has held "that a citizen alleging a violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713(A) is not required to prove a lack of an adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available."9

Turning to specific statutory provisions relevant to the situation you have described, subsection A of § 2.2-3713 provides that venue for a case against a local public body is in "the general district court or circuit court of the county or city from which the public body has been elected or appointed to serve and in which such rights and privileges were so denied." Subsection C of § 2.2-3713 provides that "the petition for mandamus or injunction shall be heard within seven days of the date when the same is made, provided the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing." Subsection D of § 2.2-3713 further elaborates that the petition must "allege with reasonable specificity the circumstances of the denial of the rights and privileges;" that a "single instance of denial of the rights and privileges conferred by [FOIA] shall be sufficient to invoke the remedies granted herein;" and that if "the court finds the denial to be in violation of the provisions of [FOIA], the petitioner shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys' fees from the public body if the petitioner substantially prevails on the merits of the case, unless special circumstances would make an award unjust." Subsection E of § 2.2-3713 states in relevant part that "[a]ny failure by a public body to follow the procedures established by [FOIA] shall be presumed to be a violation of [FOIA]."

In addition to the petition for mandamus or injunction, § 2.2-3714 provides that if a court finds that an officer, employee, or member of a public body has committed a knowing and willful violation of FOIA, the court may order that person to pay a civil penalty to the State Literary Fund . The amount of the penalty is $500 to $2,000 for the first violation, and $2,000 to $5,000 for the second and subsequent violations, if any. While it is not required, we do recommend that anyone who is considering filing a petition first consult with a private attorney.

Apart from filing a petition in court, this office does try to help resolve FOIA disputes on an informal basis. In such instances we generally try to communicate with both the requester and the public body to understand the facts of a situation and advise on the requirements of FOIA. While this office has no investigatory or enforcement powers, we have found that by facilitating clear communication as a neutral third party we can often help the parties reach a solution without resorting to court. In this instance please note that we contacted the Newport News City Attorney's Office regarding your request and the apparent failure to respond. We were told that they would follow up on your request. It is our hope that this situation has been resolved and you have since received a response to your request. If that is not the case, you have the right to file a FOIA petition as previously described.

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 07 (2011).
2See Freedom of Information Advisory Opinions 06 (2014), 01 (2009), 02 (2008), and 08 (2007).
3Freedom of Information Advisory Opinion 05 (2014).
4Available at https://www.nnva.gov/calendar.aspx?month=11&year=2016, last accessed January 8, 2017.
5Taking notice that both November 24 and November 25, 2016 were legal holidays at the state level raises the question of whether November 25 was a holiday for the City.

6Note that it is possible that the City sent a response within the time limit but there may have been some delivery delay or failure that was outside of the City's control, in which case the City would not have violated FOIA. However, while we recognize that as a possibility, this opinion is based on the facts as you presented them to us.
7See Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 66, 613 S.E.2d 449, 453 (2005) ("The provisions of Code 2.2-3713 significantly distinguish the right to mandamus it provides from the common law right to mandamus. By granting concurrent jurisdiction to the circuit and general district courts, expediting the proceedings, providing for an award of costs and attorneys' fees, and shifting the burden of proof to the public body, the General Assembly has evinced an intent to provide mandamus relief under Code 2.2-3713(A) different from that of common law mandamus. These distinctions are entirely consistent with the express purpose of the FOIA and manifestly facilitate access to appropriate governmental records.").
8Id., 270 Va. at 63, 613 S.E.2d at 452.

9Id., 270 Va. at 66, 613 S.E.2d at 453.

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