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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-01-08
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.
Sincerely,
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).
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