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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-16-04
July
23, 2004
Mr. John
Butcher
Richmond, 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 May 6, 2004.
Dear
Mr. Butcher:
You
have asked a series of questions concerning a request for
records to the Richmond City Schools Superintendent under
the Virginia Freedom of Information Act (FOIA).
You
indicate that on March 26, 2004, you requested via email
all records prepared, owned, or in the possession of the Richmond
School Board or any of its officers of employees that "establish,
discuss, or evaluate the quarterly test program under the
PASS program in the Richmond schools, and the results or outcomes
of that program." You identified 10 categories of records
in your request including, but not limited to, all records
that discuss the use of test questions for practice in the
PASS program. The documents you provided to the FOIA Council
indicate that the Associate Superintendent responded to your
request on April 1, 2004. She provided some records with her
April 1 correspondence, and provided an estimate of $3,035
to research and gather the other responsive records. In order
to proceed with the request, she required that you pay a deposit
of $1,500, and noted that the time within which she must respond
to your request would be tolled until you responded. She also
noted that after receiving the deposit, she would require
seven additional days to respond to your request.
On April
2, 2004, you emailed the Associate Superintendent, alleging
that her response was an attempt to ignore the requirements
of FOIA. You cited the policy of FOIA at subsection B of §
2.2-3700 of the Code of Virginia, which provides that [a]ll
public bodies and their officers and employees shall make
reasonable efforts to reach an agreement with a requester
concerning the production of the records requested. You
requested that she immediately provide you with the document
that established the basis of the $3,035 cost estimate, any
other document that lists or discusses the nature or identity
of documents that are responsive to your original request,
and any report to the Associate Superintendent, Superintendent,
or the School Board about the use of test questions for practice
in the PASS program. The Associate Superintendent responded
via email on the same day and provided the formula that was
used to estimate the cost of responding to your request. The
formula estimated the number of documents to be searched,
and factored in the hourly rate of the staff time to spend
two minutes to review each document. The response also indicated
that the other two documents that you requested for immediate
review in your April 2 email were part of your original request,
and therefore included as part of the $3,035 cost estimate.
You
again responded via email on April 2, 2004, claiming that
the formula provided was inadequate and implied that either
no cost-estimate document existed or that she was refusing
to turn over such records. You accused the Associate Superintendent
of "stonewalling" your request. As to her response
that the other documents to which you requested immediate
access were part of the original cost estimate, you argued
that she was attempting to prevent you from accessing these
records. You stated that immediate access to reports concerning
the use of test questions for practice might make further
FOIA requests unnecessary or would allow you to tailor your
request "to avoid your clumsy attempt to stonewall it."
The Associate Superintendent responded to this email on April
5, 2004. She stated that she did not have immediate access
to the records that you requested, and that because you asked
for "any and all documents," this necessitated a
review and search of all emails, electronic files, and hard
copy records in the possession of the school administration.
She indicated that she was not attempting to "stonewall"
your request, but was attempting to convey the volume of the
work required to respond. Furthermore, she indicated that
you had the option of narrowing the scope of your request
in order to reduce the time and costs associated with responding
to your initial request.
In light
of this correspondence with the Associate Superintendent,
you emailed the chairman of the School Board on April 6,
2004, outlining the areas in which you felt the Associate
Superintendent had violated FOIA in her responses to you.
The chairman responded on April 6, 2004, that he would discuss
these issues with the Associate Superintendent and get back
to you. You indicate that this was the last correspondence
that you received from the Richmond school system.
You
first ask if the school administration violated FOIA in its
response to your request. As to your correspondence with the
Associate Superintendent, subsection H of § 2.2-3704
clearly allowed her to request a deposit if she estimated
that the charges to respond to your request would exceed $200,
and to toll her response to the request until you paid the
deposit. Any potential violation involving the Associate Superintendent
would involve your request on April 2 for records that established
the basis of the cost estimate, records that list or discuss
the nature of documents responsive to your original request,
and reports to the Superintendent, Associate Superintendent,
or the School Board concerning use of test questions for practice
in the PASS program.
Records
establishing the basis of the cost estimate or listing documents
responsive to your request would clearly be records subject
to disclosure under FOIA. However, it is quite possible that
neither such records exist, and subsection D of § 2.2-3704
states that no public body shall be required to create
a new record if the record does not already exist. As
to the costs, an estimate, by definition, means "to calculate
approximately the extent or amount."1 The law does not
require that a public body create a document explaining precisely
what the final charges will be, although if the public body
had generated notes or other records in applying the formula
provided to you, these would be subject to disclosure. Likewise,
public bodies are not required to create documents cataloging
or detailing records that are responsive to a particular FOIA
request. To the extent that the school administration had
created such a document, it would be subject to disclosure.
It seems likely, however, given that the FOIA request was
still at the cost estimate stage, and that you had not paid
the deposit that would require the school administration to
begin to process your request, such a document may not have
been prepared and therefore did not exist.
While
such records may not have existed, the Associate Superintendent
should have clearly stated this in her emails to you on April
2 and April 5. It is clear that the Associate Superintendent
was not ignoring your request, as she did provide you with
the formula used to derive the cost estimate, and was clearly
attempting to respond to your inquiry. These facts reveal
a grey area in FOIA as to the response required by a public
body when a requested record does not exist. Subsection B
of § 2.2-3704 sets forth the mandated responses to a
FOIA request -- provide the requested records; withhold all
or part of the requested records by responding in writing
and citing the applicable exemption; or state in writing that
it is practically impossible to respond to the request within
five working days. FOIA does not explicitly address how a
public body should respond when the requested records do not
exist. Reading subsection B of § 2.2-3704, the premise
of which is based on clear communication with the requester,
together with subsection D of § 2.2-3704, it appears
that the intent of the law would indicate that if records
do not exist, this should be stated in writing to the requester.
However, because this is not explicitly stated in the law
and because the Associate Superintendent continued to communicate
with you concerning your request, I am hesitant to conclude
that the Associate Superintendent's response constituted a
violation of FOIA. In the future, however, public officials
would be well advised to clearly state when requested records
do not exist in order to avoid confusion and frustration on
the part of the requester.
You
also asked on April 2 for reports concerning the use of test
questions for practice in the PASS program. This was very
similar to one of your initial requests on March 26, in which
you asked for all records concerning the use of test questions
for the PASS program. Upon initial review of your emails,
I failed to note the difference between these two requests,
as you did not clearly state that you were attempting to narrow
your initial request. It appeared that you were asking for
these reports not because you were attempting to narrow your
request to avoid the $3,035 charge, but because you "expect
that the documents...are immediately available to [the Associate
Superintendent]." Furthermore, you stated "I look
forward to receiving those documents immediately and to further
discussions to abate your latest defiance of the requirements
of the Freedom of Information Act." In your second email
on April 2, you state that "I am confident that you can
lay your hands on it in a matter of moments and I suspect
that production of that document will either make a further
inquiry unnecessary or, at the least, that the production
will allow me to tailor my request to avoid your clumsy attempt
to stonewall it." These comments appear to be more aimed
at conveying your criticism of the school than to clarifying
that you are asking for the reports in lieu of all of the
records that you requested on March 26. In fact, the Associate
Superintendent's email on April 5 invites you to narrow your
request in order to limit the costs, indicating that the intent
of your April 2 request was not clearly conveyed. The Associate
Superintendent did not fail to respond to this request and
therefore did not violate FOIA.
It is
important to clarify that a requester always has the right
to narrow a request in an attempt to lower any estimated costs.
However, once a deposit is requested from the public body,
a requester does not have the right to demand that certain
records that are believed to be easily accessible be provided
immediately, before the deposit is paid, while still indicating
that he wants a response to the entire request. To the extent
that those "easy" records were a part of the cost
estimate, the public body has the right to toll its response
in its entirety until the requester pays the deposit, pursuant
to subsection H of § 2.2-3704. Based on your correspondence,
it is easy to see how the school administration interpreted
your April 2 request not as attempt to narrow your request,
but instead as an attempt to obtain those records that you
thought it should be easy to obtain while waiting for the
remainder of the records to be produced. If you wish to narrow
your request, the burden is on you, as the requester, to clearly
state that in lieu of the original request, you would like
to make a more focused request. In the midst of your emails,
you failed to convey this key concept to the school administration.
You asked this office how you may modify your request to make
it more clear to the school administration that you are not
requesting emails and other notes, but only want final, written
reports concerning the use of the test questions. It seems
that a clear statement to this effect should suffice.
While
it was not clear in your correspondence with the Associate
Superintendent that you wished to narrow your request, you
did state this in your email to the chairman of the School
Board on April 6. To this end, the chairman should have treated
this email as a request for the records. While the chairman
himself may not have had physical custody of the reports in
question, he should have alerted the custodian of the reports
that you wished to narrow your original request to the production
of final, written reports. As such, the requested reports
should have been provided to you within five working days
of receiving the April 6 request. This appears to be the only
situation in the facts you present that indicate a violation
of the law.
In addition
to asking if any FOIA violations occurred, you also asked
if any of these violations were willful and knowing. Section
2.2-3714 allows a court to impose civil penalties if it finds
that a FOIA violation was willfully and knowingly made. Because
this is a question of fact for a judge to decide, this is
a question for the courts and not for this office.
As a
final note, your correspondence echoes a problem heard frequently
by this office through informal discussions with both requesters
and public officials concerning how adversarial some FOIA
transactions become, even without provocation. Your request
for a formal opinion of this office provides a forum to identify
and address this important issue. FOIA operates most effectively
as a tool that can be used by citizens to obtain government
records; invoking FOIA rights should not be interpreted as
the invocation of an adversarial process staking government
against citizens. Unfortunately, situations do sometime escalate
and require a citizen to enforce his FOIA rights in court.
However, the practical perspective of dealing with the application
of FOIA on a daily basis has taught me that clear and concise
communication between a requester and a government official
-- relying on the requirements set forth in the law and not
on editorial comment -- is often the best way to successfully
resolve any concerns about a FOIA request. In those instances
where either party to the transaction feels that the law is
not being properly upheld, this office is always available
to informally discuss the application of FOIA, to advise a
party as to his FOIA rights, and to suggest a course of action
in an attempt to amicably resolve the situation.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1The
American Heritage Dictionary (2nd ed.).
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