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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-15-03
June
18, 2003
Mr. Kevin
E. Martingayle, Esq.
Virginia Beach, 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 email
of April 11, 2003, and fax of June 10, 2003, and Virginia
Freedom of Information Advisory Opinion 04 (2003).
Dear
Mr. Martingayle:
You
have asked several questions about the application of the
Virginia Freedom of Information Act (FOIA) to an individual's
request to view the responses to the "Member Survey on
Quality of Work Life 2002" from the City of Virginia
Beach ("the City").1
Employees
of the City completed a survey focusing on general work environment
issues. The City contracted with a private firm to conduct
the survey. In a email sent to City employees, the project
director, an employee of the private firm, indicated that
all "individual responses are strictly CONFIDENTIAL.
At no time will anyone from the City of Virginia Beach see
your individual responses." In addition to asking specific
questions about the city work environment, the survey also
included an open-ended comments section, and nearly 2,000
individual statements were submitted in this section. Some
employees' statements related to identifiable city employees
or officials. These statements were forwarded to the City
Manager's ("the Manager") office for review by the
Manager and the executive team. After this review, directors
of the various departments within city government received
copies of the comments relevant to their respective departments.
You
indicate that a city employee made a FOIA request for copies
of the surveys from the Manager. You indicate that in response
to the request, the Manager's office faxed the requester a
copy of a draft letter that would be sent to all city employees
as a result of the FOIA request. The fax cover sheet accompanying
the draft asked the requester if he wanted to reconsider his
FOIA request.
The Manager
stated in the draft letter that he was writing to advise employees
of a recent FOIA request by a co-worker, named in the letter,
"that could affect our entire workforce." The letter
explained that the City had developed a communication plan
to share survey results with all employees, but that the statements
in the comment section of the survey were only intended to
be reviewed by the review team and relevant department heads.
The draft letter went on to explain that "Unfortunately,
I regret to inform you that the confidentiality we originally
promised has been somewhat compromised. Here's why. A Virginia
Beach Police Officer…has submitted a FOIA request to
receive a copy of all 150 pages of comments you submitted
in the Member Survey. These comments contain detailed information
about your worklife experiences/relationships and personal
issues that we did not plan to share with anyone except the
Directors." The letter did indicate that pursuant to
the advice issued by the Virginia Freedom of Information Advisory
Council in Advisory Opinion 04 (2003), names and personal
identifying information had been redacted from the comments
in response to the FOIA request. The letter concluded by stating
that "[a]lthough FOIA requests have become a common occurrence,
we did not think that a Member of our organization would try
to compromise the confidentiality that we promised."
You indicate
that despite receiving the draft of the letter, the requester
proceeded with his FOIA request and received the requested
documents. You further indicate that the Manager sent the
letter described above to city employees upon responding to
the FOIA request. You have asked four questions concerning
the application of FOIA to these events.
First,
you ask if a city, consistent with FOIA and Equal Protection
principles, may treat an employee's FOIA request any differently
from a request made by a news organization or a citizen. The
Virginia Freedom of Information Advisory Council only has
the authority to answer questions regarding the interpretation
and application of FOIA, and thus cannot comment on any constitutional
issues that may be raised by this fact scenario. However,
the policy of FOIA, found at subsection B of § 2.2-3700
of the Code of Virginia ensures the people of the Commonwealth
ready access to public records in the custody of a public
body or its officers or employees. In furthering this
policy, § 2.2-3704 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…[a]ccess
to such records shall not be denied to citizens of the Commonwealth,
representatives of newspapers and magazines with circulation
in the Commonwealth, and representatives of radio and television
stations broadcasting in or into the Commonwealth.
The law
does not distinguish between a citizen of the Commonwealth
and government employees. Individuals who choose to work in
public service for state and local government do make some
sacrifices. Government employees often must accept a lower
salary or rate of pay than people performing equivalent jobs
in the private sector. Government employees also give up some
privacy in choosing to work in the public sector. For example,
subsection B of § 2.2-3705 specifically states that a
government employee's salary or rate of pay and reimbursements
are a matter of public record. However, in making these sacrifices
to work in the public sector, a government employee does not
give up rights as a citizen. When an employee makes a FOIA
request, he is acting in his capacity as a citizen and is
entitled to the same rights and protections as other citizens
making the same request. An employee's FOIA request should
not be responded to any differently than other requests, and
should be handled in the same routine manner.
Second,
you ask whether it is consistent with FOIA for a city to send
out a "warning letter" to individuals who supplied
information in public records, which advises that a particular
person has made a request for records and which blames the
named individual for compromising the confidentiality of the
public records. Whether or not a public body may send out
a letter to third parties concerning a request is not a FOIA
question per se. FOIA requires that a public body provide
requested records or cite an appropriate statutory exemption
in writing if withholding requested records. FOIA neither
requires nor prohibits any other actions relating to a particular
FOIA request. A public body is not prohibited from informing
others that a request has been made.
However,
the language in the letter blaming the requester for breaching
the employees' confidentiality does raise an issue directly
related to the application of FOIA. All records prepared or
owned by, or in the possession of a public body or its officers,
employees or agents in the transaction of public business
are subject to inspection and copying under FOIA unless a
specific statutory exemption allows those records to be withheld.
In the facts that you present, the City, through it's contractor,
sent an email to all city employees at the start of the survey
project indicating that all responses to the survey would
be confidential. This was a promise not backed up by law.
Unless the City can point to a specific statutory exemption
allowing all of the survey responses to be withheld, the surveys
are public records that must be disclosed upon request. Merely
indicating that a record is confidential has no effect under
FOIA, and does not make an otherwise public record exempt.
In this case, portions of the comment section concerning identifiable
individuals in the scope of their employment may be properly
redacted from the surveys pursuant to the personnel exemption
at subdivision A 4 of § 2.2-3705.2 However,
the City should not have conveyed to its employees that the
surveys in their entirety were confidential when no statutory
exemption exists to support this assertion. In responding
to the FOIA request for the records, the City was not forced
to compromise the confidentiality of its employees because
the personnel exemption protects those portions of the survey
concerning identifiable individuals. A requester has a right
to examine or copy all public records not subject to an exemption;
such requester should not bear the brunt of a public body's
failure to deliver on a promise of confidentiality that it
had no legal basis to make and should not be blamed for compromising
a confidentiality that did not in fact exist.
Third,
you ask whether a city may take actions designed to discourage
or intimidate citizens, including employees, who use FOIA
to obtain public records. As noted above, the policy of FOIA
ensures ready access to public records. Subdivision B of §
2.2-3700 further states that the affairs of government
are not intended to be conducted in an atmosphere of secrecy
since at all times the public is to be the beneficiary of
any action taken at any level of government. FOIA guarantees
citizens and representatives of the media the right to inspect
and copy public records. Any actions of a public body that
create a chilling effect to discourage individuals from exercising
these rights would clearly be contra to the underlying policies
of FOIA.
It is
important to note that the use of FOIA by an individual to
obtain public records is not an adversarial event, and the
government entity receiving the request should not view it
as an affront or attack. Subsection B of § 2.2-3700 requires
public bodies and their officers and employees to make
reasonable efforts to reach an agreement with a requester
concerning the production of the records requested. This
language clearly indicates that the intent of the law is to
facilitate dialogue and for government and citizens to work
together. FOIA should not be viewed as a tool used by citizens
to hinder government; instead, FOIA is the tool that guarantees
citizens the right and ability to stay informed about the
functions and processes of their government. Any attempt by
a government entity to intimidate or discourage requesters
from exercising this right creates a hostile and adversarial
environment, pitting government against the very people that
it serves, which clearly goes against the legislative intent
of the law.
Your
fourth and final question asks if a government entity ultimately
produces the requested records, but mistreats the requester
in the process, is there any relief available to the requester.
Section 2.2-3713 provides remedies for persons denied the
rights and privileges of FOIA. If a proper response to the
request was provided within five working days as required
by subsection B of § 2.2-3704, then it is difficult to
argue that the requester's rights under FOIA were denied.
As noted above, FOIA guarantees access to records; if this
access was granted, then it would appear that FOIA does not
provide a remedy for any alleged mistreatment.
In conclusion,
a FOIA request from a government employee should not be treated
any differently from a request from a citizen or the media,
as a government employee does not waive his rights as a citizen
of the Commonwealth by accepting public sector employment.
At its most basic level, FOIA sets forth the procedures dictating
how to respond to a FOIA request. These procedures neither
prohibit nor require that other individuals be made aware
of a particular FOIA request and there is nothing wrong with
advising a third party that a request has been made. However,
in the instant case, the Manager's letter appears to be sent
not just to advise other employees of the request, but to
discourage requests and to criticize an individual for exercising
his rights under FOIA. Such a chilling effect is clearly adverse
to the policies underlying FOIA. Furthermore, the Manager's
letter erroneously accuses the requester of breaching the
confidentiality that was promised by the City to its employees
in completing the survey. Such a promise of confidentiality
was misplaced and should not have been made because the surveys
as a whole are not subject to an exemption. All public records
are subject to inspection and copying unless specifically
exempt by law.
Thank you for contacting this office. I hope that I have been
of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1This
survey is the same survey that was the subject of Virginia
Freedom of Information Advisory Opinion 04 (2003).
2
See
Virginia Freedom of Information Advisory Opinion 04 (2003).
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