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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-12-03
May
14, 2003
Mr. Andrew
Shannon, President
Southern Christian Leadership Conference, Newport News Chapter
Newport News, 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 correspondence
of March 25, 2003, and a telephone conversation of April 17,
2003.
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. You also asked
about the enforcement remedies available under FOIA if a violation
has occurred.
You
indicate that you made a written FOIA request on February
27, 2003, to the city manager requesting to inspect and copy
"all letters, memoranda, reports and documents of any
kind that relate to the 'Audience Granted to the Public' during
the Newport News City Council Meetings," including written
policies and procedures. "Audience Granted to the Public"
is the phrase used by the City to refer to the public comment
period of meetings. You indicate that you did not receive
any kind of response from the city manager, and made a subsequent
written request via certified mail for the same records on
March 18, 2003. As of April 17, 2003, you had not received
a response to either request. You ask if the City's failure
to respond to your requests for records constitutes a FOIA
violation.
Subsection
A of § 2.2-3704 of the Code of Virginia states 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. Subsection B of § 2.2-3704 states
that in response to a request for records, a public body shall
promptly, but in all cases within five working days of receiving
a request, make one of four responses. The public body
may provide the records to the requester, withhold the records
in their entirety if subject to an exemption, withhold the
records in part and release the records in part if only a
portion of the requested records are subject to an exemption,
or state that it is practically impossible to respond to the
request in five working days, which gives the public body
seven additional working days to respond. If the records are
withheld in whole or in part, the response must be in writing,
identify with reasonable particularity the volume and subject
matter of the withheld records and cite the specific Code
section that authorizes the withholding. Likewise, a response
that it is practically impossible to respond within five working
days must also be in writing, specifying the conditions that
make a response impossible. Subsection E of § 2.2-3704
states that [f]ailure to respond to a request for records
shall be deemed a denial of the request and shall constitute
a violation of [FOIA].
In the
situation you present, the city manager did not respond to
your request by either providing you with the requested records,
citing in writing an exemption that would allow the records
to be withheld, or stating in writing that it was practically
impossible to respond within five working days. FOIA is clear
on its face. As noted above, subsection B of § 2.2-3704
specifically provides that failure to respond to a request
for records is a violation of FOIA. Subsection A of §
2.2-3713 allows any person denied the rights and privileges
of FOIA to file a petition for mandamus or injunction, supported
by an affidavit showing good cause, in general district or
circuit court in the county or city where the violation took
place.
Thank you for contacting this office. I hope that I have been
of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
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