VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-13-08

December 5, 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 October 20, 2008.

Dear Ms. Liles:

You have asked for the opinion of this office regarding two records requests you made to the Department of Conservation and Recreation (DCR) and the responses you received. Both requests sought copies of Storm Water Pollution Prevention Plans (SWPPP) for a project adjoining your property. One request was made February 16, 2007 and the other was made May 18, 2008. You related that a SWPPP is a printed plan required to be kept on a construction site in order to be available to DCR inspectors who need to inspect both the SWPPP and the construction site for compliance with environmental laws.¹ You further indicated that on several other occasions, DCR did in fact provide you with copies of the SWPPP you requested, or portions thereof. Specific facts regarding each request and the response thereto are set forth below in chronological order.

It appears that your request of February 16, 2007, asked for an updated copy of a SWPPP of which you already had a prior version. The response from DCR stated that it did not have an updated copy of the SWPPP, only a copy that was the same as the one DCR had already provided to you, but that an updated SWPPP would be kept on the construction site. DCR's FOIA Officer also indicated he had only recently been made aware that other staff might have additional responsive records, so the response invoked an additional seven working days in order to supplement the response with these additional records, if it turned out that they did exist and were responsive to your request. You indicated that you feel that this response was in violation of the Virginia Freedom of Information Act (FOIA) because it failed to provide you with the requested records, and failed to cite a statute allowing the records to be withheld. Additionally, you indicated that you did not and do not have access to the construction site, preventing you from getting a copy of the SWPPP kept on the construction site. Your request of May 18, 2008 also asked for updates to the SWPPP in question, among other records. The relevant response to this request indicated that DCR had consulted with the Office of the Attorney General, which opined that because the SWPPP is a document kept on the job site, not by DCR itself, it is not a public record subject to FOIA. You indicated that you believe that because the document in question is one required to be made available to DCR as part of the permit process, it must necessarily be a public record.

The definition of public record in § 2.2-3701 includes all writings and recordings...regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. The requirements regarding SWPPPs set forth in the relevant regulation include the following:

2. The SWPPP shall be retained, along with a copy of this permit at the construction site from the date of commencement of construction activity to the date of final stabilization. Permittees with day-to-day operation control over SWPPP implementation shall have a copy of the plan available at a central location on-site for the use of all operators and those identified as having responsibilities under the plan whenever they are on the construction site. The SWPPP must be made available, in its entirety, to the department and the permit-issuing authority for review at the time of an on-site inspection.²

3. The permittee shall make SWPPPs available upon request to the department; the permit-issuing authority; a state or local agency approving erosion and sediment plans, grading plans, or stormwater management plans; local government officials; or the operator of a municipal separate storm sewer system receiving discharges from the site.

The same regulation addresses updates to the SWPPP, indicating that a SWPPP must be updated on-site by the permittee, and may be updated daily or weekly in response to changes in design, operation, maintenance, construction, contractors, or as the result of inspections.³ Based upon the facts you have presented and the regulation quoted above, it appears that in most instances a SWPPP is a record prepared by, owned by, and in the possession of the permittee. In other words, the contractor prepares, owns, updates, and keeps the SWPPP on the construction site. While the permittee is required to make the SWPPP available to inspectors from DCR, it does not appear that DCR prepares a SWPPP, owns a SWPPP, or takes possession of a SWPPP under typical circumstances. Therefore, it appears that in most instances a SWPPP is not a public record because it is not prepared or owned by, or in the possession of a public body or its officers, employees or agents.

You indicated you felt that because DCR has access to inspect the SWPPP as part of the permit process, the SWPPP should be considered to be in DCR's possession. In other circumstances, a public body may have legal or constructive possession of a record even though it does not have actual, physical possession of that record.⁴ For example, if a statute requires that a public body maintain certain records, but the public body contracts out for a third party to act as its agent and actually keep the records, the public body is considered to have legal possession and remains the legal custodian of the records. In such a case, the record is a public record subject to FOIA for which the public body is ultimately responsible as custodian, even though the record is actually in the possession of the third party agent. However, in this instance, DCR does not appear to have legal or constructive ownership or possession of the SWPPP. DCR is not required to create, maintain, or update the SWPPP as part of the permit process. The relationship between DCR and the contractor is that of permitting agency and permittee, not that of principal and agent.⁵ The regulation requires that the SWPPP be prepared, updated, and kept on-site by the permittee, not by DCR. The regulation also requires that the SWPPP be made available by the permittee to DCR inspectors for inspection on-site, but says nothing about transferring ownership or possession to DCR. My understanding is that while DCR inspectors may look at a SWPPP, they do not generally take possession of a SWPPP in the course of their duties. Therefore, because a SWPPP is not prepared or owned by, or in the possession of a public body or its officers, employees or agents, it does not meet the statutory definition of a public record. Under these facts, a SWPPP is not a public record and is not subject to mandatory disclosure under FOIA.

However, as you pointed out, DCR did provide you with copies of at least one SWPPP, or portions thereof, before responding to your May request by stating that the SWPPP was not a public record. It follows then that DCR did in fact come into possession of the SWPPP (or portions thereof) which it provided to you. Presumably, as stated above, DCR came into possession of the SWPPP in the transaction of public business. In such a case, that SWPPP became a public record because it was then a record in the possession of a public body or its officers, employees or agents in the transaction of public business, fully satisfying all of the elements of the statutory definition. Therefore any SWPPP which does in fact come into the possession of DCR in the transaction of public business is a public record subject to disclosure upon request, just as any other public record would be.

Addressing the actual responses to your requests, it appears that the response to your February 16, 2007 request provided what SWPPP records DCR had at the time, and invoked an additional seven working days to supplement that response. You indicated you never did get a complete copy of the SWPPP. While it appears that other records were provided to you subsequently, it is not entirely clear that those records were provided as supplements to this aspect of your February 16, 2007 request.⁶ At the time of this request, there were four responses allowed under subsection B of § 2.2-3704: (1) provide the requested records; (2) deny the request in its entirety, citing the exemption that allows the records to be withheld; (3) provide some of the records and deny the rest, again, citing the exemption that allows such denial; and (4) invoke an additional seven working days to respond. It appears that DCR complied with those requirements by providing what records it had and invoking seven additional working days to search for the existence of other responsive records. As stated above, a SWPPP prepared, owned and possessed by a permittee, that is not possessed by DCR, is not a public record. DCR is not the custodian of the updated SWPPP kept on the construction site by the permittee, and is not responsible for providing copies of a SWPPP which DCR does not own, prepare, or possess.

Regarding your May 18, 2008 request, I first note a change in FOIA regarding the responses allowed. In addition to the four responses described above, as of July 1, 2007, a fifth response was added to § 2.2-3704. That fifth response, codified as subdivision B 3 of § 2.2-3704, requires that the public body must inform the requester if the records sought do not exist or cannot be found, and if it knows that another public body has the records, the public body must provide relevant contact information. It appears that DCR's response to your May 18, 2008 request followed this provision by informing you that the SWPPP you sought was not a public record, DCR did not have a copy of it to provide to you, and that the updated copy you sought would be kept on the construction site by the permittee. I note that you indicated that you felt DCR violated FOIA by not citing a statute that would allow it to withhold the SWPPP. Because the SWPPP in question is not a public record, and DCR is not the custodian of it, DCR is not required to cite such an exemption; the response given was in compliance with FOIA under these circumstances.

In summary, a SWPPP that is not prepared, owned, or possessed by DCR is not a public record for which DCR is responsible as custodian under FOIA. It appears that in the two instances you mentioned, DCR acted in compliance with the relevant requirements of FOIA in responding to your requests. As a final point, note that ultimately the General Assembly is the proper authority to decide whether, as a matter of public policy, SWPPPs should be accessible to the public.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹The legal requirements for a SWPPP are set forth by regulation (4 VAC 50-60-1170) dealing with general permits for discharges of stormwater from construction activities (General Permit No. DCR01). That regulation was promulgated pursuant to Va. Code § 10.1-603.2:1, which sets forth the powers and duties of the Virginia Soil and Water Conservation Board. The regulations and not the statute itself specifically address the SWPPP requirements at issue in this opinion.
²Section II (B) of General Permit No. DCR01, supra n.1.
³Id. at section II (C).
⁴See, e.g., Freedom of Information Advisory Opinion 37 (2001)("The definition[of public record] indicates that a record that a public body owns, but is not in physical possession of, may still be a public record subject to public access under FOIA.")
⁵A thorough discussion of the elements of a principal-agent relationship is unnecessary here, as it is clear that DCR is acting as a permitting agency and the contractor as permittee by operation of law; see Freedom of Information Advisory Opinion 19 (2003) for a more thorough analysis of the elements establishing an agency relationship.
⁶From the materials you provided, it appears you made further requests related to the SWPPP in March, April, and July of 2007, and received several records in response to those requests. It is not entirely clear whether these additional records were considered supplemental responses to your February 16, 2007 request, or whether they were responses to your subsequent requests.