VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

November 8, 2006, Richmond

The Fifth Response Subcommittee¹ of the FOIA Council held is second meeting to address concerns raised with the proposed subcommittee draft at the full FOIA Council Meeting on October 11, 2006. The first issue related to the application of a required fifth response to elected officials who may receive FOIA requests from opposing candidates prior to the election. While sympathetic to additional burdens places on elected officials around election/reelection time, the subcommittee characterized the issue as one of using FOIA to intimate or harass, which all agreed was a separate issue and beyond the scope of the subcommittee's charge. In addition, it was noted that there may be a legitimate reason for a FOIA request as it relates the official performance of an incumbent. With the addition of a fifth response to a FOIA request--the records do not exist or could not be found-- the subcommittee agreed that a response would have to be made by an elected official upon receipt of a FOIA request. Staff told the subcommittee that FOIA at § 2.2-3704 E currently 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." Therefore, it appears that some type of response is already required by law.

The second issue was whether the phrase in the draft "if the public body that receives the request knows that another public body has the requested records" places a responsibility on the receiving public body to poll all of its employees before making the response that it knows the records are in the possession of another public body. In response, staff pointed out that FOIA is replete with references to the public body itself and not employees of the public body. Additionally, it was noted that common sense dictates that the phrase does not require the polling of all employees. After a brief discussion, the subcommittee decided that the draft language was sufficient as drafted.

The subcommittee voted 3 to 0 to recommend the draft without any further change to the full FOIA Council at its meeting on December 15, 2005.

¹ Mssrs Fifer, Bryan and Malveaux were present; Delegate Griffith was absent.