VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-05-05

May 11, 2005

James E. Keaton
Doswell, 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 February 23, 2005.

Dear Mr. Keaton:

You have asked whether the Virginia Department of Environmental Quality (DEQ) has failed to comply with the Virginia Freedom of Information Act (FOIA) in DEQ's responses to requests you made on five separate occasions since June of 2004 for a total of 70 individual requests for records. These requests all concern DEQ's handling of a situation involving alleged wetlands on property you inherited.¹ You indicate that you received a wide variety of responses to your individual requests. Records were provided in response to some, but not all, of your requests. You indicate that where documents have not been provided, you have not been told whether the documents exist and are being withheld, or whether the documents do not exist. Notably, it does not appear that DEQ has exercised any exemption from disclosure in response to your requests. Further details concerning each of these responses will be described and analyzed separately below.

The general policy of FOIA, as stated in § 2.2-3700, is that [a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked....The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Subsection A of § 2.2-3704 provides 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. Subsection B of § 2.2-3704 sets forth the requirement that [a] request for public records shall identify the requested records with reasonable specificity. The same subsection sets forth four responses to a request, one of which must be made by a public body: (1) the requested records will be provided to the requester; (2) the requested records will be entirely withheld, pursuant to an exemption that applies to all of the records; (3) the requested records will be provided in part and withheld in part, pursuant to an exemption that applies to some or part of the records; or (4) the public body needs more time to respond to the request because it is practically impossible to respond within five working days. If the public body is going to withhold all or part of the records, it must respond in writing, identify the subject matter of the withheld records, and cite the appropriate exemption from FOIA. Similarly, a public body must respond in writing if it requires more time to respond.

It appears that one of the issues of greatest concern to you is determining whether or not certain records exist. You state that based on information you have, it appears that DEQ made certain decisions that you believe would require the existence of certain documents. You indicated that the responses to your requests for these records were vague, and did not clearly inform you whether these documents exist or not. Please be advised that at this time, FOIA does not require a public body to inform a requester if requested documents do not exist. However, this office has advised that 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.² The Freedom of Information Advisory Council has taken under consideration the question of whether a public body should be required by FOIA to inform a requester when requested documents do not exist.³

Specifically, you indicate that DEQ wrote that [a]ll documentation DEQ has, has already been made available to you. You already have this information if available. This response by DEQ implies that it has already provided all of the records it has that are responsive to your request. Another response by DEQ stated that [n]o such data, policy, guidance, etc. is available. Information not available. Part of the problem appears to be the use of the word "available," because that term does not clearly indicate whether a record exists or not. An existing record that is withheld pursuant to a lawful exemption might be considered "not available," just as a non-existent record would be "not available." It seems that DEQ was attempting to convey to you that it had provided all of the responsive records it has, and that DEQ has no other responsive records. While we commend DEQ for this effort, a phrase such as "DEQ does not have any records responsive to your request" would be clearer than the statements used that refer to availability rather than existence. However, while DEQ's responses might have been phrased more clearly, they are not in violation of FOIA because the current law does not require a public body to inform a requester when a requested record does not exist.

You also indicated that in response to some requests DEQ provided copies of records that were illegible, particularly field notes taken by agents and/or employees of DEQ. You further indicated that you believe the reason these documents are illegible is due to the poor quality of copying, and request that DEQ either provide legible copies or have the originals transcribed legibly. Additionally, you indicated that you believe it is your right to request that DEQ use any method, including transcription, that will provide you legible copies of the field notes, along with DEQ's guarantee that they are exact copies of the originals. For example, after receiving illegible copies of 14 handwritten pages, you requested that the field agent "1) transcribe in her own hand exact duplicates, word-for-word each of these 14 documents and 2) provide a written explanation of their original intent." You indicated that you have received no documents in reply to this request.

FOIA does not contain any specific provisions concerning the legibility of public records, and research revealed no court cases or opinions of the Attorney General on this issue. However, as a practical matter of giving reasonable effect to the intent of FOIA, copies of records produced in response to a request should be legible, so long as the original records are legible. Otherwise a public body could effectively deny a request while purporting to satisfy that request, simply by providing illegible copies of requested records. At the same time, it must be recognized that copies often are not equal in quality to original records, and so it cannot be expected that all copies will be perfect duplicates of the originals. Additionally, it appears that these records are handwritten notes. It is not entirely clear whether their illegibility is due to the handwriting or the poor quality of the copies, or a combination of both (practical experience has shown that some copiers simply will not produce legible copies of handwritten documents). Regarding FOIA compliance, if the copies were made with the intent that they be illegible so as to defeat the purpose of your request, such action would certainly violate the spirit of FOIA. However, if the illegibility of the copies is due to technological limitations of the copiers available, or due to the illegibility of the original handwriting, then DEQ is not in violation of FOIA.

While the policy of FOIA expressed in subsection B of § 2.2-3700 requires public bodies to make reasonable efforts to reach an agreement with a requester concerning the production of the records requested, pursuant to subsection D of § 2.2-3704, no public body shall be required to create a new record if the record does not already exist. Thus, DEQ does not have to create new transcriptions of the already existing records. Similarly, FOIA does not require a public body to provide a written explanation of the intent of public records. You indicated that DEQ has asked you to come to its office to inspect these field notes. However, you indicate that you do not wish to do so because 1) you have already paid for copies of these documents, and 2) any transcription you make of these records would not be admissible as evidence. While not explicitly stated, it seems that DEQ may be trying to show you the original records in explanation of why the copies are illegible. DEQ cannot require you to come to its offices to inspect these originals, but it seems that this offer was made to facilitate a resolution of this issue. There is nothing in FOIA to prevent you and DEQ from entering into a mutually satisfying separate agreement for the production of the field notes. Subsection D of § 2.2-3704 is permissive and states that a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. To be clear, DEQ is not required to do so, but it may be in your interest to attempt to agree upon terms with DEQ for the creation of new transcriptions of the field notes. Otherwise this situation appears to be at an impasse.

In other replies DEQ stated that the information requested was available and that you should make an appointment to come to DEQ's office to review the file. You specifically requested that copies of records be provided. Subsection A of § 2.2-3704 grants citizens both the right to inspect public records and the right to copy public records. In this case, you requested copies. DEQ cannot unilaterally change that into a request to inspect records, and cannot require that you come to its office to review files. Unless DEQ chooses to exercise an appropriate exemption from disclosure as required by subsection B of § 2.2-3704, or determines in advance that charges for producing these records will exceed $200 and therefore requires payment of an advance deposit pursuant to subsection H of § 2.2-3704, it should provide you with copies of these records. Based upon the facts you have presented, DEQ has not exercised any exemptions from disclosure nor has it required any advance deposits.

In response to at least three different records requests, DEQ stated that [d]elineation of wetlands is done by the Army Corps of Engineers. The ACOE conducts wetlands certification. One request was for professional credentials and certification of DEQ employees who made determinations of the existence of wetlands at a particular address, including the credentials of three named employees. Another request was for criteria used by DEQ to convey authority to DEQ employees to delineate wetlands and/or otherwise make wetlands determinations. The third was for the criteria required by DEQ to establish the presence of wetlands, the size of a wetlands area, and the nature of wetlands at a specific location. You also indicated that in response to a FOIA request you made to ACOE, an ACOE representation stated that ACOE did not perform any tests to determine soil characteristics or wetland vegetation. Yet you indicate that a DEQ consent order states that The ACOE determined...that wetlands existed, and that you requested any documentation supporting that statement from the DEQ. You have received no records in response to this request.

In analyzing this situation, the first consideration is that FOIA only requires a public body to respond to a records request when that public body is the custodian of the requested records. Subsection B of § 2.2-3704 requires that [a]ny public body that is subject to this chapter and that is the custodian of the requested records shall promptly make one of the four allowed responses previously described. If DEQ was the custodian of the requested records, the response provided above would be in violation of FOIA, as it does not conform to one of the four allowed responses. However, in this instance the response appears to indicate that DEQ is not the custodian of the records sought. Instead, it appears that the Army Corps of Engineers (ACOE) is the custodian of these records, and so your request should be directed to that agency.⁴ However, it also appears from the facts you presented that DEQ relied upon an ACOE determination regarding the existence of wetlands, yet ACOE appears to have stated that it made no such determination. The definition of public records in § 2.2-3701 includes 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. To the extent DEQ has a record prepared by ACOE, and that record involves or was used in the transaction of public business by DEQ, then that record becomes a public record in the custody of DEQ. Thus, DEQ would be required to provide such a record in response to a FOIA request unless an appropriate exemption applies. However, it is not clear from these facts that DEQ actually has any records prepared by ACOE. Once again, this is an example of where the question of whether a record exists has led to confusion and frustration on the part of the requester. If DEQ has any records responsive to these requests, whether those records were originally prepared by ACOE or not, FOIA requires DEQ to provide them to you or cite an appropriate exemption in a written denial of your request. If DEQ does not have any records responsive to these requests, it should indicate that fact clearly without ambiguity. If DEQ wishes to indicate that ACOE may be the custodian of records responsive to these requests, it should simply state that fact. Responding to a records request by stating that another government agency performs tasks related to that request is ambiguous at best. Once again, 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, and also to clearly state when a public body is not the custodian of requested records.

As a final matter, in at least one other reply DEQ indicated that it had lost the records you seek. FOIA only requires a public body to provide existing public records upon request. FOIA does not require a public body to create new records or re-create old records it no longer has, nor does FOIA address record retention by a public body. That area of law is governed by the Virginia Public Records Act (VPRA), § 42.1-76 et seq., which is administered by the Library of Virginia. You may wish to contact the Records Management division of the Library of Virginia regarding how the VPRA may apply to this situation.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Because the advisory opinions of this office are limited to FOIA matters, the specific facts regarding the alleged wetlands and ensuing actions by DEQ need not be set forth here. Further background facts will be stated as necessary regarding each FOIA request made and response received.
²See Freedom of Information Advisory Opinions 16 (2004) and 25 (2004).
³See the minutes from the March 23, 2005 meeting of the Freedom of Information Advisory Council, available at http://foiacouncil.dls.virginia.gov/sm032305.htm.
⁴Note that the Army Corps of Engineers (ACOE) is a federal agency, not a public body of the Commonwealth subject to Virginia's FOIA. The federal Freedom of Information Act, 5 U.S.C. § 552, may apply to a records request directed to ACOE, but this office cannot opine in regard to the federal FOIA.