Sunrise over V.A. Capitol.


February 21, 2008

Terence Michael Gilley, MSLS
Librarian, Folklorist & Genealogist
Big Stone Gap, 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 letter received January 24, 2008.

Dear Mr. Gilley:

You have asked whether you should have received copies of payroll and leave policies in response to a records request you made of the Wythe-Grayson Regional Library (the Library) by letter dated October 16, 2007. That letter first asks for explanations regarding payment for personal leave and accumulated holiday leave for periods from November, 2006 through January, 2007, when you were a full-time employee of the Library. It appears that you were not paid for the full amounts of either type of leave to which you believe you were entitled. The letter then requests copies of two official policies as established by the Library Board of Trustees, as follows:

a. on which the decision was made to withhold my pay for three (3) of the four (4) hours of personal leave as reported on my timesheet for the pay period of January 1-15, 2007 and
b. on which the decision was made to withhold payment of my accumulated holiday leave hours as reported on my timesheet for the pay period of January 16-31, 2007.

You indicated that as of January 11, 2008, you had received no reply to this letter.

As an initial matter, it must be determined whether the Library is a public body subject to the requirements of the Virginia Freedom of Information Act (FOIA). The term public body is defined in § 2.2-3701 to include among other entities other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. You indicated that the Library is a public library principally supported by public funds, and as such, it is a public body subject to FOIA.

In reviewing your letter of October 16, 2007, I note that much of it asks for explanations regarding your pay and benefits as an employee. As stated in prior opinions, FOIA applies to requests for public records, not requests that ask public bodies to answer questions or provide explanations.1 Therefore to the extent your request asks for an explanation of decisions that were made, rather than asking for copies of public records, FOIA does not apply. However, your letter also contained a request for copies of certain Library policies, as quoted above. FOIA does apply to this aspect of your request because it asks for copies of public records.

In making a records request, subsection B of § 2.2-3704 requires requesters to identify the requested records with reasonable specificity. As previously opined by this office, a request needs to be specific enough to enable a public body to begin to process the request and, if clarification is required, to ask relevant questions to understand the scope of the request.2 The policy of FOIA expressed in § 2.2-3700 states that [t]he 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. The phrasing of your request asks for official policies...on which [certain decisions were] made. This language somewhat blurs the distinction between identifying the records you seek and asking for the basis for particular decisions - in effect, indirectly asking for explanations of those decisions by asking for records upon which the decisions were based. Considering the language of your request in light of the provisions of FOIA regarding reasonable specificity and liberal construction, it is reasonable to construe your request as asking for copies of any Library policies regarding payment for personal leave and accumulated holiday hours. The request might also be construed to include any records particular to the payroll decisions made, for example, if there was a record stating that you would not be paid for certain hours because of a particular policy. Generally speaking, records concerning public employment payroll and leave policies that do not concern individually identifiable employees would be public records subject to disclosure under FOIA. Records regarding payroll decisions about individually identifiable employees would be personnel records that could be withheld from general disclosure pursuant to subdivision 1 of § 2.2-3705.1, but such records would be required to be released to the subject of the records upon request. As the subject employee, you would be entitled to access any personnel records relating to your pay, personal leave, and holiday leave. Therefore it would appear that if any records responsive to your request exist, those records would be open to you and copies should have been provided to you. If there was any confusion regarding the extent of your request, the best course of action would have been for the Library to contact you to clarify what records you sought.

While records responsive to your request would be open to you, it is possible that there are no applicable written policy statements or specific records regarding the payroll decisions in question. In that case, then the proper response would have been for the Library to inform you that responsive records could not be found or do not exist, pursuant to subdivision B 3 of § 2.2-3704. In either case, whether the records exist or not, subsection E of § 2.2-3704 clearly 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 this chapter. Pursuant to this section, therefore, the failure of the Library to respond to your request for public records would be deemed a denial of that request and a violation of FOIA.

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


Maria J.K. Everett
Executive Director

1See, e.g., Freedom of Information Advisory Opinion 06 (2005), n.2.
2Freedom of Information Advisory Opinion 01 (2000).