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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-25-04
December
8, 2004
Lee H.
Albright
Montebello, 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 November 1, 2004.
Dear
Mr. Albright:
You
have asked whether the Virginia Department of Game and Inland
Fisheries (the Department) is required by the Virginia Freedom
of Information Act (FOIA) to provide access to the meeting
minutes of the Board of Game and Inland Fisheries (the Board).
Your inquiry appears to have arisen from a series of letters
between you, the Chairman of the Board, and the Director of
Administration of the Department, beginning with a letter
dated March 3, 2004 from you to the Chairman. In this letter
you ask questions and express your concerns about a number
of actions taken and policies adopted by the Department and
the Board. Your questions and comments are grouped into three
categories: (1) spending priorities for the Department, (2)
the Department's management decisions and (3) the Department's
responses to your prior FOIA requests. In his reply of March
5, 2004, the Chairman indicated that all of the subjects you
wrote about "were addressed with proper consultation
with the Board and were supported."
In a
subsequent letter to the Chairman dated March 19, 2004, you
indicated that you found published Board minutes that addressed
three of the subjects mentioned in your March 3, 2004 letter.
You also made the following FOIA request: "Please provide
access to the minutes of the meeting/meetings where the remaining
subjects of the March 3, 2004 letter were presented and supported
by the Board. I'm particularly interested in the FOIA issues."
It is unclear what response, if any, the Department made to
this letter.1
By letter
dated April 7, 2004 you resubmitted your FOIA request made
on March 19, 2004. In this letter you also request "that
all charges for providing access to the requested minutes
be estimated in advance." The Director of Administration
for the Department responded by letter dated April 28, 2004.
This letter informed you of the Internet address where the
Board minutes are posted and concluded by stating as follows:
"If you are unable to access the minutes you are requesting,
please advise me as to what your specific needs are."
You
replied by letter dated May 5, 2004. In that letter you stated
that you had found minutes on the Department's web site addressing
"about four of the approximately fifteen to eighteen
subjects at issue." You then reiterated your request
for "access to the minutes of the meeting or meetings
where these remaining subjects were presented." Another
copy of this letter was sent by you to the Chairman and the
Director of Administration on September 4, 2004.2 The Chairman's
reply dated September 9, 2004, indicated that he had nothing
to add to his response of March 5, 2004 and directed you to
contact the Director of Administration for any current or
future FOIA requests.
On September
19, 2004 you wrote to the Director of Administration. You
mentioned three possibilities in regard to your FOIA request:
"1.
The subjects were addressed in open meetings and I just cannot
locate the appropriate section in minutes posted on the internet.
If so, please direct me to the correct location.
2. [The Chairman] over generalized. If so, a simple statement
to that effect would suffice.
3. The subjects were addressed in a closed meeting. If so,
that is a FOIA violation. There may be other possibilities,
but please give some definitive response."
The Director
of Administration responded by letter dated October 1, 2004.
In that letter he observed that "[y]our letter of March
3 poses questions to the Board Chairman, and the FOIA does
not require a response to questions." The Director also
stated that copies of all meeting minutes are kept at the
Richmond headquarters office, but that the office was damaged
by flooding and so the records had been moved to an alternate
storage facility. He indicated that any visits to this alternate
facility must be scheduled in advance; a staff member would
have to accompany you, and that you would be responsible for
the cost of that service. The Director then provided a summary
description of the process by which the Board holds closed
meetings.
In a
reply dated October 25, 2004, you stated that the Director's
letter of October 1, 2004 "is ambiguous and does not
address my FOIA request." You then reiterated your March
19, 2004 FOIA request using the following language:
"1.
[The Chairman] stated that certain issues had been properly
presented to and supported by the Board -- the Board acted
on the issues.
2. All Board actions must take place at a public meeting with
recorded minutes.
3. I have accessed minutes on line where five of the subjects
raised in my March 3, 2004, letter were addressed as stated
in previous correspondence. I request to inspect a copy of
the minutes where the remaining subjects were addressed or
please provide a date so I may find the minutes on line."
The Director
of Administration replied to this latest request on October
29, 2004. He indicated that he did not "know what specific
documents you desire to review so that I can make them available."
His letter concluded with an offer to schedule a time when
you could review Board minutes other than those posted on
the Department's Internet site.
Based
on the foregoing, you asked: "Is [the Chairman] required
by FOIA to provide access to Board Meeting minutes in this
situation?" Subsection B of § 2.2-3700 of the Code
of Virginia states that [u]nless a public body or its officers
or employees specifically elect to exercise an exemption provided
by this chapter or any other statute, every meeting shall
be open to the public and all public records shall be available
for inspection and copying upon request. All public records
and meetings shall be presumed open, unless an exemption is
properly invoked. Subsection I of § 2.2-3707 states that
[m]inutes shall be recorded at all open meetings....Minutes,
including draft minutes, and all other records of open meetings,
including audio or audio/visual records shall be deemed public
records and subject to the provisions of this chapter. Furthermore,
subsection A of § 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
during the regular office hours of the custodian of such records.
Taken together these provisions make clear that open meeting
minutes must be made available to any citizen of the Commonwealth
upon request during the regular office hours of the custodian.
Therefore, in this matter, Board minutes must be made available
to you. It appears that certain minutes have been made available
as you have elected to view them on-line. As to the remainder
of Board minutes, the Department has offered to make these
available to you once you make an appointment to do so, given
that they have been damaged by recent flooding.
I have
included the chronology and details of the correspondence
between you, the Chairman, and the Department to illustrate
a problem heard frequently by this office concerning how adversarial
some FOIA transactions become, even without provocation. This
office has previously commented on the importance of clear
communication to the successful resolution of ambiguities
that may exist in making and responding to FOIA requests.3
Your request for an advisory opinion provides yet another
opportunity for this office to 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. FOIA is largely
a procedural act, and sets forth how to make and respond to
a request. It requires a requester to be reasonably specific
in identifying the records sought. FOIA, in subsection B of
2.2-3700, makes an equivalent requirement of the public body:
[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. This
indicates that clear communication between the requester and
the public body is critical to facilitate the production of
records. There are two parties to every FOIA transaction and
the intent of FOIA is best carried out when neither party
treats a FOIA request as an adversarial event. FOIA contemplates
good faith requests and good faith responses, and clear communication
is the best way to achieve the intent of the law.
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.
Taking into consideration the intent of FOIA, the facts at
issue, and previous opinions of this office, I suggest the
following. The Department should clearly state if a requested
record does not exist and, if there is any confusion on its
part as to what record(s) you seek, to communicate meaningfully
with you to clarify the matter. The Department should explicitly
refer to each topic in trying to clarify to you what records
it holds and about what requests remain unclear. Considering
the number of topics in which you appear to be interested,
I suggest that you renew your request by specifically identifying
the topics of the records you seek and perhaps expand your
request to include any other documents the Department or the
Board may have relating to that topic, and not just the minutes
of the Board meetings. It is the hope of this office that
clear communication in the future, on the part of both parties
to this transaction, will lead to a satisfactory resolution
of this issue.
One
final point should be made about minutes generally. Prior
to July 1, 2004, FOIA contained no requirements as to the
content of meeting minutes. As a result, a requester had to
be content with minutes that may or may not adequately reflect
the discussions and actions of a public body. Essentially,
the adequacy of minutes was affected by the minute-taking
standards adopted by various public bodies. Subsection I of
§ 2.2-3707, however, was amended during the 2004 Session
of the General Assembly to require that [m]inutes shall
include, but are not limited to, (i) the date, time and location
of the meeting, (ii) the members of the public body recorded
as present and absent, and (iii) a summary of the discussion
on matters proposed, deliberated or decided, and a record
of any votes taken.4 Your initial request occurred prior
to July 1, 2004, and refers to events that occurred before
the above-noted requirements for minutes became effective.
It is therefore possible that the issues with which you are
concerned were discussed by the Board but were not reflected
in the minutes. In such a case, FOIA does not require the
Department to amend the minutes or to create any new record
to satisfy your request. This new FOIA provision establishing
requirements for the content of minutes will benefit both
citizens and public bodies by fostering the creation of more
meaningful public records.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1In
your subsequent letter dated April 7, you observe that a "FOIA
related charge was in dispute and [the Department] was not
required to respond."
2The content of this September 4, 2004 letter indicates
that your dispute with the Department regarding charges for
your previous FOIA request had been resolved by this date.
3See Freedom of Information Advisory Opinion 16
(2004).
4See Acts of Assembly, c. 730 (2004) (enacting
the quoted language).
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