VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-08

June 18, 2008

Frances R. Liles
Richmond, 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 April 30, 2008.

Dear Ms. Liles:

You have asked for the opinion of this office regarding two different records requests you made of the Office of the Governor under the Virginia Freedom of Information Act (FOIA). As background regarding the first request, you stated that you sent a request to the Office of the Governor on March 28, 2008 by regular mail. This request was sent to Mr. Lawrence Roberts, Counselor to the Governor, and asked for two things: (1) copies of the calendars of Ms. Nikki Rovner, Deputy Secretary of Natural Resources, for 2006, 2007, and 2008, and (2) a listing of electronic mail addresses and telephone numbers for all persons in the Office of the Governor. Having received no response, you sent another copy of the same request letter by certified mail that was received and signed for on April 14, 2008. You further stated that you have received no response to this second repetition of your request.

As background regarding the second matter, you included a series of electronic mail messages between yourself and the Deputy Secretary, as well as correspondence with the Counselor to the Governor. In this request you asked for copies of the Deputy Secretary's calendars for each month of 2007 and 2008, as well as other records. You emphasized your request for the calendars in your inquiry to this office, without raising any issues concerning the other items you requested. You indicated that the Deputy Secretary did not and would not respond by providing the calendars you requested. You also included documents provided to you by the Deputy Secretary that appear to have been created in response to your request. Further relevant facts regarding each of these two matters will be described as needed below.

The policy of FOIA set forth in subsection B of § 2.2-3700 is that [a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked. FOIA puts this policy into practice by providing in subsection A of § 2.2-3704 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 the same section sets forth five responses a custodian may make to a records request, one of which must be made promptly, but in all cases within five working days of receiving a request. In summary, the five responses are (1) to provide the requested records, (2) to deny the request entirely pursuant to a specific provision of law, (3) to provide the records in part and deny it in part (again, pursuant to a specific provision of law), (4) to state that the requested records do not exist or cannot be found, and (5) to invoke an additional seven working days to respond. All responses other than the first (providing the records) must be made in writing, and any denial must cite the specific provision of law that allows the records to be withheld. In the event that there is no response, subsection E of the same section provides 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.

Regarding the first matter presented, you indicated that you twice made your request and received no response whatsoever.¹ As previously opined by this office, FOIA is clear on its face.² Subsection E of § 2.2-3704 specifically provides that failure to respond to a request for records is a violation of FOIA. Subsection A of § 2.2-3713 allows any person denied the rights and privileges of FOIA to file a petition for mandamus or injunction, supported by an affidavit showing good cause, in general district or circuit court in the county or city where the violation took place. Given that your request was received Monday, April 14, 2008, the fifth and final working day for sending one of the allowed responses would have been Monday, April 21, 2008. Your letter to this office was dated April 30, 2008. Therefore nine days elapsed between the last date when the response should have been sent and when you wrote to this office. While it may be presumed from common experience that nine days is generally more than enough for the delivery of local mail, it is possible that some mishap occurred in the post. I would suggest that while the formal remedy for a FOIA violation is to file a petition in court as stated above, you might wish to first double-check again with the Office of the Governor just in case a response was sent but failed to arrive in a timely fashion.

Regarding the second matter, it appears that in an electronic mail message dated January 6, 2008, you requested copies of the Deputy Secretary's calendar for each month of 2007 and 2008, among other records.³ Based on subsequent electronic mail messages, it appears that the Deputy Secretary replied by letter dated January 10, 2008. However, a copy of that letter was not included with the materials you provided. You did include a letter dated January 25, 2008, from the Counselor to the Governor. That January 25, 2008, letter references a letter from you to the Deputy Secretary dated January 15, 2008, which also was not included in the materials you provided to this office. You included further electronic mail correspondence from February and March, 2008. Through reading all of this correspondence, it appears that you continually sought the Deputy Secretary's calendars, and the Deputy Secretary maintained that she does not keep calendars in any single document, but rather her various appointments are reflected in multiple electronic records. Specifically, in an electronic message dated March 7, 2008, the Deputy Secretary stated that her calendar, is, in fact, an electronic collection of many documents. It further appears that in an effort to resolve what she viewed as an impasse, that the Deputy Secretary sent you two lists of appointment dates and locations, the first (approximately 30 pages) covering 2006, and the second (approximately 36 pages) covering all of 2007 and the first five months of 2008. The Deputy Secretary indicated she had removed from those lists appointments that were not related to her work. You indicated that you believe the Deputy Secretary is in violation of state law for failure to provide the calendars you requested, and that you know how the calendars are, because [you] already have requested (and received) a number of them from various agencies. Furthermore, you stated to the Deputy Secretary that you did not ask her to create new records, that you felt that the records provided were altered information and were unsure whether this alteration of information was fraudulent.

In this instance, it appears that the Deputy Secretary informed you that she does not have any single calendar that is responsive to your request, indicating that the record you requested does not exist. In a situation where the requested records do not exist, subdivision B 3 of § 2.2-3704 requires the public body to so inform the requester. However, the Deputy Secretary also indicated to you that she has multiple electronic files containing appointment information which may be the equivalent of the calendars you seek. While the calendars may not exist in the form you seek, it appears that the Deputy Secretary instead may have multiple electronic documents that serve as the equivalent. In other words, while these electronic documents may not be calendars in the traditional sense,⁴ they may nonetheless be responsive to your request. Subsection D of § 2.2-3704 provides that no public body shall be required to create a new record if the record does not already exist. The same subsection provides further that a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. Subsection G of § 2.2-3704 provides that [t]he excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation or compilation of a new public record. In this instance, the Deputy Secretary stated that she had multiple electronic files concerning her appointments, but no calendars responsive to your request. She then stated that she created two lists of appointments in an attempt to satisfy your request. However, it is not apparent whether the records she provided to you are new records abstracted or summarized from existing files, or instead whether she merely excised exempt information and/or converted file formats. In either event, clear communication between the requester and public body is essential in order to avoid confusion, such as your concerns about receiving altered information. Considering all the given facts together, it appears that the Deputy Secretary attempted to comply with FOIA and to satisfy your request by informing you that the records you seek do not exist in the form you expected (i.e. calendars), and by taking extra steps to provide you with responsive records in a useful format (the appointment lists). In response, you continued to insist that the Deputy Secretary provide you with calendars, rather than the appointment lists provided which you feel are unresponsive, and you continue to maintain that the Deputy Secretary stands in violation of FOIA.

The factual background you present demonstrates the importance of clear communications between public bodies and requesters in addressing the production of records. As previously advised by this office, whenever a request is unclear, a public body would be well-advised to seek clarification from the requester.⁵ Additionally, the practical perspective of dealing with the application of FOIA on a daily basis has taught me that clear and concise communication between a requester and a government official -- relying on the requirements set forth in the law and not on editorial comment -- is often the best way to resolve any concerns about a FOIA request.⁶ These concepts are explicit within FOIA itself: subsection B of § 2.2-3704 requires that a requester shall identify the requested records with reasonable specificity; subsection B of § 2.2-3700 states that [a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. Reading these provisions together in consideration of the facts you have presented, it appears that this situation demonstrates a failure of communication between two parties rather than a violation of FOIA, a failure that appears to revolve around a disagreement as to what constitutes a calendar. The Deputy Secretary has indicated that she does not have a calendar responsive to your request; if that is the case in fact, then that response by itself is sufficient under subdivision B 3 of § 2.2-3704 (a statement that the requested records do not exist). However, if the Deputy Secretary does in fact have responsive records, you are correct that those records should be made available to you, unaltered except for any redactions allowed by law. In other words, responsive records should be provided in part and withheld in part as allowed under subdivision B 2 of § 2.2-3704, with a written citation to any exemptions invoked. However, further argumentative communications over whether or not the appointment records are or are not calendars seem unlikely to result in a resolution to this situation. If the ultimate resolution depends on a factual determination of whether or not the Deputy Secretary has a calendar responsive to your request, only a court may issue a binding determination of fact.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹I note that the substance of this request was, at least in part, the same as prior requests you had made asking for the Deputy Secretary's calendars. However, you specified in your request letter that it is a new request. Whether it was a repetition of a prior request or in fact a new request, FOIA would require that a response be sent; i.e., a public body cannot ignore a request, but must always provide some response.
²Freedom of Information Advisory Opinion 12 (2003); see also Freedom of Information Advisory Opinions 01 (2008), 19 (2003) and 10 (2002).
³While you requested other records as well as the calendars, your inquiry to this office focused on the request for the calendars and response thereto.
⁴In other words, the Deputy Secretary may not have a calendar arranged in a table format showing days and weeks of each month in a year in chronological order, as most typical calendars do, but may have other records that serve the same function in some other format(s).
⁵See, e.g., Freedom of Information Advisory Opinion 03 (2008).
⁶Freedom of Information Advisory Opinion 16 (2004).