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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
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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