VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-1-00

September 29, 2000

Mr. Will F. Corbin
Editor, Daily Press
Newport News, VA

Dear Mr. Corbin:

This will acknowledge receipt of your letter of August 18, 2000, and the correspondence between Greg Lohr and Judith Malveaux, also of the Daily Press, and James E. Barnett, county attorney for the County of York. You have requested "illumination" on a number of issues related to the application of the Virginia Freedom of Information Act (FOIA) to emails between members of a public body.

1. Your first question concerns the definition of the term "transaction of public business" and whether certain emails to or from public officials can be considered "personal" when such email messages go through a government agency’s email database.

Under FOIA, the term "transaction of public business" is not defined. According to statutory construction rules, in the absence of a statutory definition, a statutory term is considered to have its ordinary meaning, given the context in which it is used.¹

FOIA, however, does define "public records" as all writings and recordings which consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. (Emphasis added). In order for a writing or recording to fall within the definition of "public record," it must be as described in the definition and be related to the transaction of public business. Implicit in the definition is that not all writings and recordings, etc., are public records. Because the definition of "public records" includes those stored in electronic form, email messages related to public business are covered by FOIA.

Based on the foregoing, it would appear that emails between members of a public body that are not related to the transaction of public business are not "public records" under FOIA and therefore are not subject to its mandatory disclosure requirements. The fact that email messages go through a government agency’s email database does not, by itself, make them public records. It is also the subject of those emails that determines their status as public records.

I note parenthetically that the Library of Virginia has had to grapple with the question of what constitutes records related to the transaction of public business in the context of the Virginia Public Records Act (§ 42.1-76 et seq.). Although the primary purpose of this Act is to set standards for the retention of public records, the guidelines established by the Library of Virginia pursuant to the Virginia Public Records Act distinguish between emails that are public records (and hence subject to retention) and those that are not. Examples of "non-records" include personal messages or announcements, convenience or reference copies, phone message reminders, routine chat on email listservers, and announcements of social events. You may obtain further information on this issue by contacting the Records Management and Imaging Services Division of the Library of Virginia.

2. Your second question is whether, under FOIA, an email transmitted through a government computer database is different in any way from a paper letter on government stationery.

The substance of my response to your previous question concerning email messages and government databases is applicable to this question. For your information, the Virginia Freedom of Information Advisory Council is currently examining the nature of email and other electronic communication in the context of FOIA’s open records and meeting requirements.

3. Your third question contains two parts: first, can a charge of several thousand dollars for the production of any email from within the previous two weeks be considered "reasonable"; and second, assuming that the estimated cost is accurate, whether a government entity has an obligation to reduce the cost of producing a record.

Subsection F of § 2.1-342 of the Code of Virginia provides:

FOIA authorizes public bodies to make reasonable charges for their actual cost for the production of requested records. Regardless of the public body involved in the instant case, it appears they have exercised their statutory prerogative. While I assume that the charge is the actual cost, the question of whether or not that charge is reasonable is one for the courts and not this office. As to the second part of your question, any portion of a charge ruled to be unreasonable likely would not be permitted.

4. Your fourth question is whether any communication between a county administrator or school superintendent and the governing board members is exempt under the "working papers" exemption authorized under subdivision A6 of § 2.1-342.01.

The "working papers" exemption is essentially an executive privilege and extends to the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly or the Division of Legislative Services; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education. (Emphasis added) Opinions of the Attorney General have held that school superintendents are included in this exemption because local school divisions are separate political subdivisions for the purposes of FOIA.²

Subdivision A6 of § 2.1-342.01 also defines "working papers" as those records prepared by or for an above-named public official for his personal or deliberative use. (Emphasis added.)

To the extent that the communications are prepared for the chief executive officer for his personal or deliberative use, the "working papers" exemption may be properly invoked. However, once the communication is disseminated to members of the governing body, it loses its exempt status.³ It is important to note, as stated earlier, that the "working papers" exemption is essentially an executive privilege and with the exception of the General Assembly, does not extend to governing bodies.

5. Your fifth question is whether the cost of legal review of requested materials may be considered a legitimate part of the cost of producing the record.

Subsection F of § 2.1-342 of the Code of Virginia provides:

Subsection F of § 2.1-342 appears to preclude a charge for the legal review of requested materials because such a charge would be an intermediary fee to recoup the general costs associated with transacting the general business of the public body.

6. Your sixth question requests helpful guidance on the boundaries of "specific" as FOIA contemplates it.

From reviewing the attachments that accompanied your letter, I assume that this question concerns the requirement that requests for records made under FOIA identify the requested records with reasonable specificity. "Reasonable specificity" or "specific" are not defined terms under FOIA and therefore the statutory construction rules applied in your first question apply here. Webster’s New Collegiate Dictionary (1977 Edition) defines "specific" as constituting or falling into a specifiable category, free from ambiguity. Common sense would dictate that a request needs to be specific enough to enable a public body to begin to process the request and, if clarification is required, to ask relevant questions to understand the scope of the request. Section 2.1-340.1 requires all public bodies and public officials to make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. This provision presumes that the parties will talk to one another to facilitate the production of the requested records in a manner satisfactory to the parties.

7. Your final question asks for a comment on the appropriateness of a citizen using FOIA to gain routine access to the correspondence of members of a governing body.

Generally, FOIA provides a right of access to public records. The motive for the request is immaterial. Strictly speaking, your question is not one about the application of FOIA. The issue of the appropriateness of a request is not one for this office.

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

Sincerely,

²1976-77 Op. Atty. Gen. Va. 318.

³1982-82 Op. Atty. Gen. Va. 724 and 1975-76 Op. Atty. Gen. Va. 415.