VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-05-08

May 5 , 2008

John H. Fenter
Virginia Beach, 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 of March 31, 2008.

Dear Mr. Fenter:

You have asked two questions regarding the responses made by the City of Norfolk to your request for public records concerning a City policy. It appears that the policy requires all individuals entering City Hall to produce photo identification or, if they do not have such identification, to provide a signature and allow the City to take a digital photograph of them. Your questions and further relevant facts are set forth separately below.

Your first question asks whether the City responded in compliance with the Virginia Freedom of Information Act (FOIA) in redacting certain documents it produced in reply to your request. Subsection A of § 2.2-3704 mandates 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. The City provided multiple documents in response to your request, many of them with redactions. In its cover letter, the City indicates that the redacted documents were provided excluding text not applicable to your inquiry. The City did not cite any exemptions that would apply to the records in question.¹

At first blush, it would appear that the City acted improperly by redacting these records without citing an applicable exemption. In responding to a records request, subdivision B 2 of § 2.2-3704 allows for the requested records [to be] provided in part and [to be] withheld in part because the release of part of the records is prohibited by law or the custodian has exercised his discretion to withhold a portion of the records in accordance with this chapter. That subdivision further requires that [w]hen a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record. In this case, portions were redacted, but no exemption was cited allowing for such redaction. However, the City's statement that the redacted text is not applicable to your inquiry appears to indicate that the redacted portions were withheld not because they are exempt, but instead because they are not responsive to your request. In setting forth the permitted responses to a FOIA request, subsection B of § 2.2-3704 repeatedly refers to the requested records. FOIA does not require a public body to provide records, or portions thereof, that are unresponsive to a request. It would make no sense for FOIA to require public bodies to give requesters records that the requesters did not request. To the extent that the redacted portions of the records are unresponsive to your request, therefore, the City is not required to provide them. Given this factual background, that the redacted portions are not responsive to your request, the City's response was not in violation of FOIA.

While it is not necessary for a public body to produce portions of records that are unresponsive to a request, I note that redacting portions while providing others often leads to a suspicion on the part of the requester that the public body is attempting to hide something. For this reason, public bodies often may choose to leave in portions of records that are unresponsive, to avoid the appearance of impropriety and in the interest of good public relations. Looking to the records you received as an example, several of them appear to contain bullet-point and numerical lists, where some points and numbered items are blacked out but others in the same list are not. Such partial redactions may lead to the perception that some items were left alone while others concerning the same subject matter have been redacted, because items listed together often concern the same subject. However, that is not necessarily the case, and in any event, because these items have been blacked out, there is no way for this office to ascertain the contents of the redacted portions. If there is a factual dispute regarding whether the redacted portions are responsive to your request, only a court has the authority to make a legally binding determination of fact to resolve such a dispute. The Supreme Court of Virginia has indicated that the proper procedure in such a case would be for the trial court to review in camera an unmodified copy of the records at issue to decide whether, in fact, the redacted portions were properly withheld as unresponsive to your request.² In the alternative, you could make another records request and simply ask for a complete copy of the same records without any redactions. In that case the City would then have to produce the records in full, unless portions are in fact exempt, in which case the City would have to cite the applicable exemption(s) in writing as described above.

Your second question asks whether it would be a violation of FOIA for the City to deny access to a public meeting by denying entry to City Hall to an individual who fails to comply with the City policy regarding photographic identification. You indicated you have found no statutory authority for the City to enforce such a policy against the public. Section 2.2-3701 defines closed meeting to be a meeting from which the public is excluded. In order to close a meeting, FOIA requires a public body to take an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements. The question is thus whether the policy at issue here acts to close meetings held at City Hall by excluding the public without a properly approved motion, thus violating the procedural requirements of FOIA.

Following the policy as described, members of the public would be excluded from City Hall only if they fail to meet the condition to produce photo identification or, if they have no such identification, to provide a signature and allow the City to take a digital photograph of them. Based upon the documents you provided, it appears that the City implemented the policy in October, 2001, shortly after the terrorist attacks of September 11, 2001, in the interest of heightened security. It also appears that the policy applies to entry to City Hall in all instances, and to all persons, not just to members of the public when public meetings are taking place. The neutral and universal application of the policy makes clear that the policy is meant as a safety and security measure, not as a deterrent to attendance at public meetings. Given that the policy contains an alternative for those who do not have photographic identification, it would in fact exclude only those who are unwilling to comply with the policy. In other words, no one is rendered unable to attend a public meeting because of this policy, although I recognize that some may find it to be a deterrent to attendance to have produce identification or have one's picture taken. This policy is very similar to the policy that one must produce identification and cannot carry weapons or certain other items into a courthouse. The public may still attend public court proceedings, but they must first comply with the courthouse security procedures. Likewise, persons entering the General Assembly Building (GAB), where this office is located and where many public meetings are held regularly, are also required to produce identification, pass through a metal detector, and state their purpose when entering the building. Just as with the policies at courthouses and the GAB, the City's policy does not prohibit or otherwise exclude the public from attending public meetings at City Hall, it only sets up a procedure that must be followed first as a security precaution.

Given this background, the heart of your second question really is whether the City has the legal authority to establish and enforce the stated policy as a security measure. Answering that question would be beyond the scope of this office's authority, as it strays beyond our statutory mandate to provide advisory opinions regarding FOIA.³ The City's authority to regulate access to City Hall in the interest of public safety does not depend on any interpretation or application of FOIA. However, solely in regard to FOIA, the policy at issue does not inherently exclude the public from any public meeting held at City Hall, and therefore is not in violation of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Note that the City also withheld certain records in their entirety and cited exemptions applicable to those records. However, in your inquiry to this office, you only asked about the redacted records, for which no exemptions were cited.
²Bland v. Virginia State University, 272 Va. 198 at 202, 630 S.E.2d 525 at 527 (2006)("we encouraged the filing of allegedly confidential records for in camera inspection by the trial court and, if necessary, by an appellate court. [Internal citation omitted.] Concerns of confidentiality may be met by an order of the trial court directing that the records be kept under seal, a course suggested by Bland in the present case.").
³See, e.g., Freedom of Information Advisory Opinion AO-04 (2007).