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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-01-18

January 15, 2018

Les Fettig
Via Electronic Mail

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 messages dated September 27 through October 17, 2017, and telephone conversations I had with you and with staff at the City of Alexandria regarding your request during the same time period.

Dear Mr. Fettig:

You have asked for an opinion regarding a request you made to the City of Alexandria under the Virginia Freedom of Information Act (FOIA) and the City's responses to that request. As background, you included your request letter to the City dated September 19, 2017, which asked for copies of the following public records:

1. Business licensing for "White Canvas," including office information, contact points, registered agent, applications, renewals, notices, standing and city actions.
2. Business licensing for "McChrystal," including office information, contact points, registered agent, applications, renewals, notices, standing and city actions.

You also included the City's response dated September 26, 2017, which stated as follows:

This is to acknowledge receipt of your request under the Freedom of Information Act(FOIA) dated 09/19/2017 referenced above. The records you have requested are being entirely withheld. These documents are being withheld pursuant to Code of Virginia § 58.1-3131, because the records are not subject to public disclosure. The records being entirely withheld total approximately 12 pages. This letter is for your information and your FOIA request file is now closed.

You replied to the City's response by email dated September 27, 2017, and included a courtesy copy of that email to this office. Your reply asserted that the City's

response is unlawful, obnoxious and specious. This is not a good faith disagreement, it is a bad faith violation of Virginia statute.

1. The Alexandria CIty [sic] Attorney's office recognizes what I have said before, when you sent a 2-line Excel worksheet cut-and-paste that gave less information than in a phone book.

The Attorney's Office openly stipulates that in conformance with Viginia [sic] statute, the public is entitled to all "Existing records prepared by or in the possession of a public body or its officers or employees in the ordinary transaction of public business. All public records are presumed to be open and are withheld only if a specific exemption applies."

You are in violation of the law of the Commonwealth. That's plain English, no intepretation [sic] needed.

2. Now, you summarily interpose an irrelevant exception for city warrants, bills and invoices that has nothing to do with the FOIA . You try to cite VA Code 58.1-3131 as a blanket "exception." It is no such thing. Warrants have not a thing to do with the records requested, attachd [sic] again. (For what it's worth, the request does not cover any warrants for these companies, and there's no interest in their bill-paying history, if any there be.)

You are in violation of the law of the Commonwealth for claiming such an inapplicable exception. That's plain English.

3. Further, you are not required to "create any records that do not already exist or answer general questions."

I look forward to prompt processing.

In the meantime, please refer refer [sic] this matter to the City Attorney for his personal attention, as I do the same to other channels available for recourse.

After speaking with City staff to discuss this matter on October 3, 2017, I informed you by electronic mail that my understanding was that § 58.1-3131 was cited in error, and the City has followed up with a citation to § 58.1-3, which, as we discussed, appears to be the correct section addressing business license records. Specifically, in relevant part, subdivision B 1 of § 58.1-3 provides as follows: "This section shall not be construed to prohibit a local tax official from disclosing whether a person, firm or corporation is licensed to do business in that locality and divulging, upon written request, the name and address of any person, firm or corporation transacting business under a fictitious name." You replied by requesting a formal advisory opinion "with an assigned case number" that appends "the attachments of correspondence, the brief presented to you earlier and this rebuttal to the new exclusion assertion" and addresses the following points:

a. Whether the City's preemptive shut down of the case was appropriate.

b. Whether the City's failure to inform me of appel [sic] rights was appropriate.

c. Whether the City's assertion of § 58.1-3131 Warrant Book exclusion applies to requested business licensing records (no matter the reason, mistake or not).

d. Whether the City's assertion of § 58.1-3 exclusion for Tax Commissioner records applies to requested business licensing records.

e. Whether fundamental statutory policy weighing in favor of disclosure and construing exclusions only narrowly applies to your Opinion in this matter.

f. Whether the City should have and must now comply with the FOIA request.

As requested, the correspondence and attachments you sent are incorporated by reference and as quoted throughout this opinion. However, while we do use shorthand to refer to our advisory opinions (for example, AO-01-10 would refer to Advisory Opinion 01 issued in 2010), we do not assign case numbers to them. Each of your points will be addressed in turn below.

In addressing this matter, we must first keep in mind the policy of FOIA as stated in subsection B of § 2.2-3700:

Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked. . . .

. . . Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

Because this matter also concerns tax laws outside of FOIA, we must also keep in mind the limited authority of the FOIA Council under subdivision 1 of § 30-179 to "[f]urnish, upon request, advisory opinions or guidelines, and other appropriate information regarding [FOIA] to any person or agency of state or local government, in an expeditious manner."1

Your first inquiry asked whether "the City's preemptive shut down of the case was appropriate." As to the "preemptive shut down of the case," I presume that you refer to the portion of the City's reply stating that "your FOIA request file is now closed." Please note that FOIA itself does not refer to requests for public records as "cases" or specify that a public body must open a "request file" in order to respond to a FOIA request. In FOIA terms, the City did not preemptively shut down the case, it merely responded to your FOIA request. Therefore, we analyze your first inquiry by looking at whether the City complied with the mandatory procedure for a response. FOIA requires under subsection B of § 2.2-3704 that a public body that is the custodian of requested records respond "promptly, but in all cases within five working days of receiving a request" by either providing the requested records or providing one of four other types of responses, summarized as follows: (1) deny the request in its entirety; (2) deny the request in part but provide the remainder of the requested records; (3) state that the records cannot be found or do not exist; or (4) invoke an additional seven working days to respond. First, addressing the timing, it appears that your initial request was made on Tuesday, September 19, 2017, and the City's response was sent on Tuesday, September 26, 2017. The term "working days" has been interpreted generally not to include weekends, legal holidays, or other days when a public body's offices are closed.2 The first day to respond to a request is the day after a request is received.3 Therefore, it appears that the City's response was sent on the fifth day after your request was received (assuming it was received on the day it was sent), and therefore the City's response appears to be within the time limit required by FOIA.

As to the response itself, the City appears to have denied your request in its entirety. Whenever a public body denies a request entirely, subdivision B 1 of § 2.2-3704 requires that the public body send a written reply that "shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records." In this instance, the City's reply cited Code § 58.1-3131 and identified the volume as approximately 12 pages of records. Your request itself identified the subject of the requested records as business licensing for "White Canvas" and "McChrystal," and it appears the City meant the reference back to your initial request as the identification of the subject matter. While identification of the subject matter of the withheld records could have been made more explicitly, it appears that the City did comply with the basic procedural requirements of FOIA in responding to your request.

Your second inquiry asked whether the City's failure to inform you of appeal rights was appropriate. The statutory remedy for a FOIA violation is a petition for mandamus or injunction supported by an affidavit showing good cause as set forth in §§ 2.2-3713 and 2.2-3714. There is a requirement for public bodies, including cities, to post a statement of FOIA rights and responsibilities pursuant to § 2.2-3704.1. Subdivision A 1 of that section requires that the statement include a "plain English explanation of the rights of a requester under this chapter, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with this chapter." However, that section does not explicitly require that the statement of rights and responsibilities include information about filing a petition for mandamus or injunction. As part of our statutory duties,4 the FOIA Council publishes a model statement on the Council's website that includes the following sentence: "If you believe that your FOIA rights have been violated, you may file a petition in district or circuit court to compel compliance with FOIA." It appears that the City does have information about a requester's rights and responsibilities posted on its website5 but that its website does not provide any information about filing a petition for mandamus or injunction. Because posting such information is not explicitly required, I cannot opine that it is a violation of FOIA not to do so. However, as indicated by the model template published by this office, the better practice would be to include information on the right to file a petition for mandamus or injunction.

Your third and fourth inquiries asked whether "the City's assertion of § 58.1-3131 Warrant Book exclusion applies to requested business licensing records (no matter the reason, mistake or not)" and whether "the City's assertion of § 58.1-3 exclusion for Tax Commissioner records applies to requested business licensing records," respectively, and will be analyzed together. You asserted that § 58.1-3131 was not only cited in error but was cited in bad faith to deny your request. If in fact this Code section (or any other) was asserted in bad faith to withhold records that otherwise would be required to be released, then such an action taken in bad faith would clearly violate FOIA's requirements to release public records unless such records are exempt. However, this office has no authority to investigate or rule on whether another public body has acted in bad faith. To do so would require proof before a court, not this office. Regarding § 58.1-3131, that section of the tax code states in full as follows:

The treasurer shall provide and keep a well-bound book, in which he shall make an entry of all warrants legally drawn upon him by the governing body and presented for payment, stating correctly the amount, number, in whose favor drawn and the date such warrant was issued. All such warrants shall be paid, in the order presented, out of the fund drawn upon.

No information contained in the list of warrants, including any invoice that has been presented to a locality for payment, and the locality has attempted to pay it, but the payment has not been completed because electronic payment has failed or a check was mailed but not cashed, shall be released for any purpose except (i) that the local governing body may publish aggregated information relating to warrants paid, as classified by expenditure item, recipient, date, or disbursement, or (ii) as a means of establishing the status of a claim previously reported as having been paid when a person legally entitled to the funds presents evidence that a previously submitted claim has not been paid. In no case, however, shall the governing body of any county, city, or town publish any information that is prohibited from release under federal or state law, including but not limited to confidential records held pursuant to § 58.1-3.

On its face, that section clearly provides that "no information contained in the list of warrants . . . shall be released for any purpose," with certain limited exceptions. Subsection A of § 2.2-3704 in FOIA states that public records must be released "[e]xcept as otherwise specifically provided by law." Thus, § 58.1-3131 is an exception to the mandatory disclosure that would otherwise be required under FOIA in that § 58.1-3131 prohibits the release of certain information. However, as we discussed, it is not clear what information is included in such a list of warrants. Additionally, the final sentence of § 58.1-3131 refers not only to warrants but to "any information that is prohibited from release under federal or state law, including but not limited to confidential records held pursuant to § 58.1-3." Regarding the application of § 58.1-3131, research did not reveal any relevant precedents applying this statute in the context of FOIA or defining what is a "warrant book" or "list of warrants" for purposes of § 58.1-3131, or explaining what other information it may be intended to cover under the final sentence. As previously stated, such questions requiring independent interpretation of other Code sections cannot be answered by this office because our purview is limited by statute to questions concerning the Freedom of Information Act.6 However, such questions were rendered moot when the City asserted that § 58.1-3131 was cited in error and that the correct cite was § 58.1-3.

Before addressing the substance of § 58.1-3, please note that while providing an incorrect cite may be a procedural error, it appears likely that it would not be viewed by a court as a violation of right so long as the records withheld were in fact exempt under some other provision of law. The Supreme Court of Virginia, in the case of Lawrence v. Jenkins, held that there is no denial of rights when a public official responding to a FOIA request "chooses to exercise an exemption, redacts the exempt information from the documents, but fails to timely reference the applicable Code section making portions of the requested documents exempt."7 In summary, the Court found that the responding public body elected to use an exemption to withhold certain information and that the information was actually exempt but the public body did not cite the specific Code section exempting the information within the time limit imposed by FOIA. Despite this procedural failure, the Court found that there was no violation of right (i.e., the requester had no right to the records because they were exempt) and therefore mandamus would not apply. Reasoning by analogy, it would appear that the erroneous cite to § 58.1-3131 would likewise not be seen as a violation of right, if the requested records were actually exempt under § 58.1-3, as subsequently asserted by the City.

Therefore, the real question is whether the business licensing records you requested are exempt or prohibited from release under § 58.1-3 (your fourth inquiry). That Code section generally provides that certain officials such as treasurers, commissioners of the revenue, tax officials, and others "shall not divulge any information acquired by [them] in the performance of [their] duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation." That section includes certain exceptions to the rule against divulgence of information, and it carries a misdemeanor penalty. You contest the application of § 58.1-3 to the records you requested, however, stating as follows in your email dated October 18, 2017:

In no way or fashion does this provision cover "business license records." It covers income tax filings under the Tax Code, Tax Commissioner, agents and treasurer, revenue employees.

(1) § 58.1-3 applies exclusively to "the Tax Commissioner or agent, clerk, commissioner of the revenue, treasurer, or any other state or local tax or revenue officer or employee, or any person to whom tax information is divulged ," certainly not the FOIA officers or supervising City Attorney exercising FOIA obligations covering business licenses.

(2) There is no such "addressing" stated or implied for business license records. (And if need be, I'd again forswear I did not ask for or intend now to receive tax records.)

(3) And to make clear the scope, interpretation and intent of § 58.1-3, the tax records withholding grants exceptions for "Land preservation TAX credits" (§ 58.1-512), and for the Commissioner of the Department of Motor Vehicles to share motor vehicle fuel TAX records with other states and countries (§ 58.1-2712.2).

Please feel free to cite in your Opinion the absence of any case law, legislative language, interpretations or contortion of the English language that would support a FOIA exclusion for business licensing under § 58.1-3.

While an independent interpretation of § 58.1-3 would be beyond the purview of this office, I would note in reply to your first point that subsection F of § 58.1-3 appears to expand its application to others by its own terms: "Additionally, it shall be unlawful for any person to disseminate, publish, or cause to be published any confidential tax document which he knows or has reason to know is a confidential tax document." [Emphasis added.] In reply to your second point, I will again quote from subsection B of § 58.1-3, where it explicitly addresses business license information: "This section shall not be construed to prohibit a local tax official from disclosing whether a person, firm or corporation is licensed to do business in that locality and divulging, upon written request, the name and address of any person, firm or corporation transacting business under a fictitious name." Following its own language, the listed information may be disclosed without violating § 58.1-3. Additionally, please note that this office has previously summarized opinions of the Attorney General concerning § 58.1-3, observing that information such as whether a business is licensed, the name, address, and telephone number of the business, and the type of business would all be subject to disclosure.8 However, it is not known what are the contents of the approximately 12 page of records withheld by the City, and so I cannot offer any definite opinion regarding the City's assertion that § 58.1-3 prohibits the release of those records. Those pages may or may not be prohibited from release depending on their contents. In regard to your third point, as stated previously, on its face subsection A of § 58.1-3 applies to "any information acquired by him in the performance of his duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation," not just land preservation tax credits or motor vehicle fuel tax records. If you feel that § 58.1-3 does not apply in this instance, and that your FOIA rights have been violated by the City's assertion of § 58.1-3, then the appropriate course of action would be to file a petition for mandamus or injunction as stated above, so that an appropriate court might examine the withheld records and determine whether their release is prohibited by § 58.1-3.

Your fifth inquiry asked whether "fundamental statutory policy weighing in favor of disclosure and construing exclusions only narrowly applies to your Opinion in this matter." Yes, the policies of FOIA apply to this opinion as to all other advisory opinions from this office. However, please keep in mind that in addition to the narrow construction rule for exemptions, the policy statement of FOIA also provides that "no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." As described above, this matter deals with tax code prohibitions on the release of records outside of FOIA, that is, other specific provisions of law.

Your sixth inquiry asked whether "the City should have and must now comply with the FOIA request." By asking if the City must now comply with your FOIA request, your inquiry inherently presumes that the City previously failed to comply. However, as stated above, determining whether the City complied with your FOIA request would require knowledge of the contents of the records that the City withheld and an interpretation of whether § 58.1-3 prohibits the release of those records, neither of which is within the purview of this office. Therefore, I cannot answer this question except to say generally that, yes, the City and all other public bodies must comply with FOIA. We must also recognize that public bodies must also comply with other laws, including laws such as § 58.1-3 that prohibit the release of certain records and carry criminal penalties, just as FOIA itself recognizes such other provisions of law. As previously stated, if you feel that the City has violated your rights under FOIA by its assertion of § 58.1-3, filing a petition for mandamus or injunction in an appropriate court would be the statutory remedy.

Thank you for contacting this office. I hope that I have been of assistance.

 

Sincerely,

Alan Gernhardt
Executive Director

1See, e.g., AO-08-06 ("it is beyond the authority of the FOIA Council to offer a legal interpretation of Virginia's tax laws").
2See, e.g., AO-06-17.
3See, e.g., AO-06-14.
4Subdivision 5 of § 30-179 requires the Council to "[a]ssist in the development and implementation of the provisions of § 2.2-3704.1."
5
See https://www.alexandriava.gov/FOIA (last visited December 27, 2017).
6Supra, n. 1; see also AO-2-00.
7Lawrence v. Jenkins, 258 Va. 598, 521 S.E.2d 523 (1999).
8AO-11-01.


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