VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-08

March 7, 2008

William T. Coleman
Alexandria, 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 electronic mail of February 11, 2008.

Dear Mr. Coleman:

You have asked whether the Virginia Department of Motor Vehicles (DMV) violated the Virginia Freedom of Information Act (FOIA) in two ways: (1) by failing to respond to your records request within the five working days allowed by FOIA, and (2) by failing to provide public records you requested relating to the authority of DMV to allow certain taxicabs to be issued Virginia license plates. You stated that you requested the following records from DMV on January 18, 2008: copies of any records related to DMV authority to allow taxicabs licensed in the District of Columbia (D.C.) and owned/operated by residents of Virginia to be issued Virginia license plates in addition to the D.C. plates already on the vehicle. [Bold emphasis in original.] You stated that DMV responded to you on January 28, 2008, stating that it does not have any information in our records that we can provide to you.

You further indicated that in other correspondence DMV had told you that taxicabs may have dual registration in D.C. and Virginia, but that authority was not found in the Code of Virginia. Other correspondence indicated that DMV had been given authority to register taxicabs in both D.C. and Virginia per § 46.2-658 of the Code of Virginia. However, you stated that that Code cited only applied to nonresidents, and therefore did not cover residents of Virginia who own or operate such taxicabs in D.C. Against this background, you noted in your request for an advisory opinion from this office that you do not seek statutes, regulations, or legal research regarding DMV's authority.¹ Instead, you seek any public records concerning the history or circumstances relating to how the DMV determined its authority in this matter, such as meeting minutes, memoranda, or other relevant records. Subsection B of § 2.2-3704 requires that a request for public records shall identify the requested records with reasonable specificity. The phrasing of your request would encompass records such as meeting minutes and memoranda, but it is also broad enough that it could be read to include statutes, regulations, and other legal authority. Given the prior correspondence you mentioned concerning DMV's legal authority and sections of the Code of Virginia, it appears plausible that DMV may have interpreted your requested as seeking statutes, regulations, and similar legal authority. If you have not already done so, it may be helpful to further clarify the scope of your request just in case DMV has misinterpreted it in good faith. In any case, while there may have been some confusion in this regard, it does not appear that DMV denied your request in whole or part on the basis that it requested legal authority rather than public records. If there was any confusion regarding the extent of your request, the best course of action would have been for DMV to contact you to clarify what records you sought.²

Addressing your first question concerning the timing of DMV's response, subsection B of § 2.2-3704 requires a public body that is the custodian of records to respond to a request promptly, but in all cases within five working days of receiving a request. Weekends and legal holidays do not count as working days when computing the timing of a response. The first day to respond is the first working day after the request was actually received. You indicated that you made your request on January 18, 2008, which was a Friday, and that DMV responded on January 28, 2008, which was a Monday. Because Saturday and Sunday are generally not counted as working days, the first day on which to respond after receipt of your request would have been Monday, January 21, 2008. However, that was Martin Luther King, Jr., Day, a legal holiday, which also is not considered a working day. Therefore the first working day to respond was actually Tuesday, January 22, 2008. Counting forward, the fifth and final working day to respond (again, not counting the weekend) was Monday, January 28, 2008, the day DMV actually responded. Therefore DMV responded to your request on the fifth working day after receiving that request, in compliance with FOIA.

Addressing your second question, concerning the response made by DMV, subsection B of § 2.2-3704 provides five responses a public body may make to a records request. The first response is to provide the requested records within five working days of receipt of the records request. The second and third responses, under subdivisions B 1 and B 2 of 2.2-3704, provide for denials in whole and in part, and require that any denial of a request cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. The fourth response, under subdivision B 3 of § 2.2-3704, is to inform the requester that [t]he requested records could not be found or do not exist. The fifth response, under subdivision B 4 of § 2.2-3704, allows a public body to invoke an additional seven working days to respond. Any response other than providing the requested records must be made in writing.

You quoted DMV's response to your request as follows: DMV does not have any information in our records that we can provide to you. You further stated that you believe DMV's response may mean that DMV has responsive records on file, but has elected not to provide them to you. Because DMV did not cite an exemption allowing the records to be withheld, you believe this response to be in violation of FOIA. If this is the case, that DMV has responsive records but failed to provide them to you, and did not cite an appropriate exemption allowing those records to be withheld, then that would be a clear violation of FOIA. However, in the alternative, DMV's response may also be interpreted as a statement that DMV has no responsive records, that the records could not be found or do not exist, as provided for by subdivision B 3 of § 2.2-3704. If in fact DMV has no records responsive to your request, then this response is not in violation of FOIA. However, while DMV has not necessarily violated FOIA, it should use clearer language in the future.³ The situation was addressed in prior opinions of this office wherein it was opined 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.⁴ I would like to take this opportunity to reiterate that advice, and remind both public bodies and requesters that clear communication is essential to the smooth and efficient operation of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹As you noted, Freedom of Information Advisory Opinion 05 (2006) opined that requests for statutes, regulations, and general legal authority are not public records requests as contemplated by FOIA.
²See, e.g., Freedom of Information Advisory Opinion 01 (2008).
³For example, this office publishes a sample response letter available online at http://foiacouncil.dls.virginia.gov/sample%20letters/welcome.htm that public bodies may use to clearly state when they have no records responsive to a request.
⁴See Freedom of Information Advisory Opinions 05 (2005), 25 (2004), and 16 (2004).