VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-35-01

June 22, 2001

Mr. Michael Cook
Woodstock, Virginia

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 phone conversation of May 23, 2001.

Dear Mr. Cook:

You have asked a question concerning a reporter's attempt to make an annual request to be provided with certain public records under the Virginia Freedom of Information Act (FOIA). The reporter made a written request to be notified of all meetings of the New Market Town Council, as is allowed by subsection E of § 2.1-343 of the Code of Virginia, and in the same letter made an annual request to be provided with copies of public records relating to town council business as they became available throughout the year. Specifically, the reporter requested that she be provided throughout the year with "copies of all packets, memos and other written communications given to members for these meetings and any other memos or documents dealing with any other public business or any other memos or documents provided to members at the same time those members are provided the documentation." You ask whether the town must honor this standing request each time new public documents are sent to town council members, or whether the town may require the reporter to make a new request each time she desires to see public records. If you are required to honor this standing request for documents, you ask whether you would still have five days from the receipt or creation of the records to respond, or whether the five-day response time set forth in subsection B of § 2.1-342 of Virginia is negated by the annual request.

FOIA does allow a person to request notice of all meetings of a public body. Subsection E of § 2.1-343 states that [a]ny person may annually file a written request for notification with a public body...The public body receiving such a request shall provide notice of all meetings directly to each such person. However, there is no corollary in the public records section of FOIA allowing for a standing request for access to public documents.

The Attorney General of Virginia addressed a question similar to the one that you present, and opined that FOIA does not authorize a person to make a continuing request for public records that are not in existence at the time the request is made.¹ That opinion addressed a situation in which a well driller requested copies of all applications for well permits that would be filed with the Department of Health in the future. The Attorney General relied on the portion of the definition of a public record that defined public records as those prepared, owned or in the possession of a public body.² Furthermore, the Attorney General noted that FOIA requires that all requested records be provided within five days of the request, and if a record does not exist at the time it is requested, it would be impossible to adhere to this requirement. Finally, the Attorney General reasoned that while the General Assembly authorized individuals to make a request for continual notice of meetings, it did not authorize a similar request for documents.

In light of this opinion, FOIA does not require that the Town of New Market adhere to the reporter's standing request for copies of packets to be provided to members at future meetings or for copies of other memos or documents relating to public business provided to members during the course of the year. As such, you could require the reporter to make a new request every time she wishes to obtain town council records. However, I suggest that it may be administratively less burdensome to make arrangements with the reporter to send her a copy of the agenda packet, and any other documents that the public body anticipates that she will request, at the same time that the town council staff sends packets or other documents to the members. This would perhaps save the administrative time and costs that would be associated with responding to what would likely be numerous individual requests for documents. If the town council does not wish to reach such an agreement, subsection F of § 2.1-343 requires that [a]t least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the public body. (Emphasis added) The town council would have five days, pursuant to subsection B of § 2.1-342, to respond to any other requests for public documents.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ 1991 Op. Atty. Gen. Va. 7.

² At the time of the Attorney General's Opinion, FOIA referred to "official records" instead of "public records." However, the definition relied on by the Attorney General remains the same, despite the name change.