VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-11

November 9, 2011

John H. Tate, Jr.
Marion, 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 September 16, 2011 and our telephone conversation October 31, 2011.

Dear Mr. Tate:

You have asked several questions regarding a records request you made to the Town of Marion (the Town) and the response by the Town. As background, you related that the Town scheduled a public hearing regarding proposed changes to two streets, Stage Street and Highland Drive. The proposed changes would affect real property you own. By letter dated August 26, 2011 you made five enumerated requests concerning Stage Street, and four requests concerning Highland Drive. The Town responded by letter dated August 30, 2011; you indicated that the Town did not provide any records with this response. You requested the opinion of this office regarding whether the request was proper, whether the Town's reply complied with the Virginia Freedom of Information Act (FOIA), and whether the charges mentioned in the Town's reply are reasonable under FOIA. Each request and the corresponding reply will be addressed below, with further background facts presented as necessary.

The policy of FOIA regarding public records is expressed in § 2.2-3700: Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked. The procedure for making and responding to a records request is set forth in § 2.2-3704. Subsection B of § 2.2-3704 requires that a request for public records shall identify the requested records with reasonable specificity. The request need not make reference to this chapter in order to invoke the provisions of this chapter or to impose the time limits for response by a public body. Observing that FOIA does not define reasonable specificity, the first advisory opinion issued by this office interpreted the parameters of this subsection in a practical manner:

"Reasonable specificity" or "specific" are not defined terms under FOIA and therefore the statutory construction rules applied in your first question apply here ["a statutory term is considered to have its ordinary meaning, given the context in which it is used"]. Webster’s New Collegiate Dictionary (1977 Edition) defines "specific" as constituting or falling into a specifiable category, free from ambiguity. Common sense would dictate that 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.¹

Subsection A of § 2.2-3704 provides that the custodian may require the requester to provide his name and legal address. Subsection F of § 2.2-3704 provides that a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and that [a]ll charges for the supplying of requested records shall be estimated in advance at the request of the citizen. FOIA does not specify the means by which a request is to be made (such as by letter, electronic mail, facsimile, verbal, etc.) or require any particular form or format be used to make a request. Reading all of these provisions together, in summary, the requirements of FOIA placed on a requester are that the request identify the records sought in sufficient detail that the public body can begin to process the request and, if needed, ask relevant questions to clarify the request; that the requester provide his or her name and address if asked; that the requester ask for an estimate in advance if desired; and that the requester pay a reasonable charge, up to the actual cost for the production of the requested records, if the public body elects to charge.

Turning next to the procedure for responding to a request, the open records policy of § 2.2-3700 is effected by subsection A of § 2.2-3704, which provides 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 § 2.2-3704 provides that a public body must respond within five working days of receiving a request, and sets forth five responses a public body may make to a FOIA request. In summary, those five responses are to (1) provide the records; (2) deny the request, citing the appropriate exemption(s); (3) provide the records in part and deny in part, again citing the appropriate exemption(s); (4) inform the requester that the records could not be found or do not exist; or (5) invoke an additional seven working days to respond. The public body must respond in writing if it gives any response other than providing the requested records. In the instant matter, it appears that the response letter was dated four days after your request letter, and therefore the Town did respond in writing within the allotted five working day time limit. Other procedural issues will be addressed below in considering each request and reply.²

Turning to the substance of the requests, your first five requests all concerned Stage Street (the Stage Street requests):

1) Any and all documentation of the establishment of State Street in the part that extends from the intersection east of the High School to the tennis building and the bus parking area.

2) A copy of any plats, maps, drawings or sketches that are in the possession of the Town showing the location of Stage Street, including the width of the street, the width of the right of way, any other plan details for the street, and all other details of the location;

3) A copy of any deeds or instruments from any party to the Town which grants the right to establish Stage Street or a street by any name at that location to the parking lot;

4) A copy of any plans for the new proposal of the Town or the School board for the reconstruction, improvement, expansion or contraction of the street, and other details of the proposed Stage Street, including elevations, pavement width, extent of the right of way, location of utilities, drainage plans, erosion plans, etc. which have been filed and which will be used to construct the street. Please also provide copies of all plans or documents which will be used to inform the public of the proposed changes at this September hearing; and,

5) Any records of the town for the past fifteen (15) years showing the expenditure of public funds for the widening, maintenance, upkeep, paving, re-paving, etc. of Stage Street.

The other four requests you made all concerned Highland Drive (the Highland Drive requests):

1) The date Highland Drive was established as a street and in what manner;

2) What records exist in the records of the Town for Highland Drive as a public street, including deeds, conveyances, plats, writings, minutes of actions of the Town Council, and any other records showing the existence of Highland Drive and when it was established;

3) A copy of any plats, maps, drawings or sketches that are in the possession of the Town showing the location of Highland Drive, including the width of the street, the width of the right of way, any other plan details for the street, and all other details of the location; and,

4) A copy of any other writings, letters, requests of the School Board, or from any party to the Town which requests or grants the right to establish Highland Drive or a street by any name at that location as it passes by the Elementary School to the area of the old cemetery.

You asked whether the requests were in proper fashion and form. While no specific form is required under FOIA, nor is it required that a request be in writing, we suggest that requests be put in writing (including email) for documentation purposes.³ You did so by sending the request in writing on your firm letterhead. Using letterhead also provided your name and a legal address as well as other contact information, thus obviating the need for the Town to ask you for your name and legal address. You had the right to request an estimate in advance, but it appears you chose not to exercise this right. Next we consider whether your requests identified the records you sought with reasonable specificity. Most of the requests are clear on their faces, however, some of the landmarks mentioned in your first Stage Street request may not be clear to an objective observer who is unfamiliar with the locale. In context, one would presume that the Town and its employees who actually received the request would be sufficiently familiar with the area that the request is at least clear enough to begin processing the request, and ask clarifying questions of you as needed. Therefore, in context, your requests appear to have identified the records you sought with reasonable specificity.

While your requests appear to have been reasonably specific and to have provided the information required under FOIA, note that all of the requests specifically asked for documentation, records, a copy or copies except for the first Highland Drive request. The first Highland Drive request instead asked for the date and manner in which Highland Drive was established as a street, thus seeking information, but not necessarily asking for a public record. FOIA applies to requests for public records, not requests for verbal responses or answers to questions.⁴ Technically, this request is phrased as one seeking answers, not one seeking public records, and therefore is not written as a FOIA request. However, as a general rule, public bodies would be well advised to treat such a request as a FOIA request when it is clearly listed in the same context as other requests which do ask explicitly for public records. If in doubt, the public body should contact the requester to clarify the matter. As stated in § 2.2-3700, [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.

Turning next to the responses by the Town, the response to the first and second Stage Street requests was the same. The response identified two relevant plats, and stated that they can be copied at Cameron Wolfe's Office for $10 per page, or for whatever he charges the town. You may view the plats here if you like. A similar response was made to your fourth Stage Street request, informing you that the plans and specifications for the proposed Stage Street could be viewed at a Town Engineer's office or copied through Mr. Wolfe, and that the school board also had copies if you wished to contact the school board instead. Although it is not explicit in these responses, you indicated that the Town had copies of these records, but did not have any means to reproduce them due to the oversize nature of the documents. You also indicated that Mr. Wolfe, an architect, does have the means to reproduce them. Therefore, when understood with the additional information you provided, it appears that these replies meant to offer you the choice of receiving copies through Mr. Wolfe, or inspecting the Town's copies (or contacting the school board). However, the actual response you received was not one of the five responses mandated by FOIA, nor was it a clear attempt to reach an agreement with you concerning the production of the records. The response was vague and lacked essential information in that it failed to state explicitly that the Town had copies but was unable to reproduce them itself. We appreciate the promptness of the response, but as this office has stated in numerous opinions previously, clear communication is the key to a successful FOIA transaction.⁵

The reply to your third Stage Street request, which asked for any deeds or instruments granting the right to establish a street in the location of Stage Street, stated that in order to comply with this request a title search will have to be done. Our Attorney Mark Fenyk estimates that his research will take five to ten hours at $125 per hour. The responses to the first and second Highland Drive requests also referred to the need to do a similar title search at the same cost per hour. The response letter also stated that much of the research you asked for, particularly the deed research involving the two streets, could be performed by you instead of requesting it from the town at a substantial lesser cost to you. This response by the Town is again not one of the five statutory responses allowed under FOIA. However, it appears implicit in this reply that the Town does not have any deeds, instruments, or other records already in its possession that are responsive to these requests. If the Town already had copies of such responsive records, then the proper reply would have been to provide copies to you as you requested. If it did not, the proper reply would have been to so inform you by stating explicitly that the Town does not have responsive records (i.e., they cannot be found or do not exist) and then to state where such records might be found (in this case, the circuit court). Note that deeds and other documents concerning real property are kept by the clerk of the circuit court of each jurisdiction.⁶ Pursuant to subdivision A 5 of § 2.2-3703, [t]he records required by law to be maintained by the clerks of the courts of record are not subject to FOIA, although such records may still be available to the public under the laws applicable to the courts.⁷ Keep in mind that FOIA only requires a public body to provide access to public records of which it is the custodian. Therefore, to the extent a title search of court records is in fact necessary to respond to these requests, FOIA does not require that the Town offer to conduct the title search.

The response to your fifth Stage Street request provided estimates of when Stage Street was paved ("late 1980's or early 1990's"), how many tons of material were used ("approximately 220 tons"), the cost per ton ("approximately $40 per ton") and the total cost involved ("an estimated $8,800"). While this information may be responsive, you specifically asked for records. 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. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. In this instance, it appears that rather than providing you with existing records, the Town chose to abstract or summarize from existing records and provide you with the information directly in its reply letter, effectively creating a new record. However, the Town did not get any agreement from you before doing so. It is not a FOIA violation for a public body to choose to summarize information, without charging the requester for doing so, if that summary is in addition to providing the requested records.⁸ Providing a summary alone, when the requester sought existing records, is insufficient. If you made a request for records, and the records exist, then the Town has an obligation to produce those records (minus any exempt portions). Logic dictates that the Town based its summary on something, thus implying that the Town does, in fact, have records responsive to this request. In this response, the Town did not provide the records you requested, did not claim any exemption for such records, did not state that such records could not be found or do not exist, and did not invoke additional time to respond. Providing you with information gleaned from records that presumably do exist is not the same as providing you with the records themselves, nor does it appear to be an effort to reach an agreement on the production of those records.

The reply to your third Highland Drive request indicated that the Town was in the process of locating plats of the street as we found on Stage Street. We will supply that information if we can locate it. It is difficult to say that this reply is in violation of FOIA, as the Town is clearly indicating an effort to find and provide you with the records you sought, but it is not clear from this reply whether the Town is stating that the records cannot be found or do not exist, or whether it is seeking your agreement to an extension of time for further searching. The reply does not invoke the additional seven working days to respond as allowed by FOIA, although that would appear to have been a proper option if additional search time was needed. As it is, the response is too vague and appears to presume your agreement to an indefinite amount of time to continue searching for responsive records. As were the prior responses, this response is not one of the five mandated by FOIA. It would have been better to either state that the records could not be found or do not exist, to invoke the additional seven working days to respond in order to conduct a further search, or to request explicitly an agreement from you for additional time; any of these would have been a proper response under FOIA.

The response to your fourth Highland Drive request indicated that the Town Manager would research the matter at $48 per hour, if assessed. The reply further indicated that the matters had been discussed in committee meeting or before the town council and that there may have been a limited number of correspondence [sic]. This response again fails to comply with FOIA as it is not one of the five responses required by statute. In this instance, the reply appears to indicate that responsive records do exist. Therefore, since you asked for copies of those records, you should have been provided copies to the extent the records are not subject to an exemption; provided a written response citing any appropriate exemption(s) for any responsive records, or portions thereof, that were withheld; and then billed for the reasonable charges not to exceed the actual costs, if the Town chose to assess charges. Alternatively, if the charges were estimated to exceed $200, the Town could have demanded an advance deposit up to the full amount of the estimate before processing the request. Regarding charges, and noting that the reply indicates the matters were discussed in committee meeting or before the town council, it would seem the likely first place to look for responsive records would be the meeting minutes. As such, it is not clear why such a search of meeting minutes would require the Town Manager's personal efforts at $48 per hour. Presumably, lower-level administrative or clerical staff could handle such a task. However, we do not presume to know what is involved in the search for responsive records. Whether the charges are reasonable is a question for the courts, not this office.⁹

Note also that after the enumerated responses, the reply letter also indicates that the charges for the Town Manager, Clerk, and Engineer's time are "soft" costs and would most likely not be charged at a total rate, or not charged at all, unless your requests become more specific and requires substantial research. However, all copying costs, our attorney's cost, or any other "hard" cost would be charged to you on a cost incurred to the town basis. As previously mentioned, FOIA allows a public body to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. The cost of copying records is clearly allowed. The Town may also choose to charge for staff time incurred in accessing, duplicating, supplying, or searching for the requested records. It is not clear from this reply whether you will be assessed such costs. It appears you likely would not be unless some unspecified threshold of substantial research is crossed. Public bodies and requesters would be better served by establishing clear limitations, especially where money is concerned. For example, a requester could set a dollar limit and inform the public body not to exceed it without contacting the requester first. Similarly, the public body could state that it will process requests free-of-charge up to a certain dollar amount, or hourly amount for staff time incurred, but will charge after that threshold is reached. Leaving monetary matters vague can only induce uncertainty and increase the likelihood of challenges and complaints when the final bill arrives.

Considering staff time more closely, FOIA generally presumes that processing a records request is a ministerial task that will be performed by administrative or clerical staff. If higher-level staff or officials are processing a request, their higher pay rate may reflect the actual cost incurred, but it will not necessarily be reasonable to charge at the higher pay rate unless there is some specific reason why the request must be handled by a higher-level person. Charges are not to be used as a deterrent to requests, as that would be contradictory to the basic policy of FOIA favoring openness and ready access to public records. As stated above in reference to the reply to your fourth Highland Drive request, and as you specifically inquired, it appears there may be some question as to whether the proposed charges mentioned in the Town's reply are reasonable. In this case, the facts are not clear about why higher-level employees or officials may be the ones to do the work involved. As stated previously, whether charges are reasonable is a question for the courts, not this office. I would further note that as stated above, any title search work performed by the Town Attorney would be on an as-agreed basis, as FOIA does not require the Town to conduct such a search of court records. To the extent the Town Attorney may be performing a secondary legal review, that would be part of the general cost of doing business, and not a charge allowed under FOIA.¹⁰

I also note that the reply states that there likely would not be charges unless your requests become more specific and requires substantial research. As stated above, your requests appear to be reasonably specific already. If further clarification is needed, FOIA places the onus on the public body to make reasonable efforts to reach an agreement with the requester on the production of records. It does not appear that the Town has asked for further clarification, but it does conclude the reply by stating [w]e will proceed based on the above parameters upon your request. While this invites further communication (which is good), it is not clear what type of request that conclusion seeks, as you already made your requests for public records under FOIA in your initial letter.

The purpose of FOIA is to be responsive in providing information concerning the operation of government, through open access to public records and public meetings. As stated in § 2.2-3700, [t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. In setting forth the procedures addressing public records requests, FOIA achieves this purpose by requiring public bodies to make one of five unequivocal responses, within a limited time, and by requiring that any response that does not provide the requested records be made in writing. These requirements are not meant solely as restrictions on public bodies, but to establish clear procedures to follow in order to make it easier to respond by establishing when and how to respond. The statutory responses are clear: provide the records; deny the request in whole or in part based upon a specific legal exemption or exemptions; state that the records cannot be found or do not exist; or invoke additional time to respond. FOIA requires a public body to commit to one of these five courses of action when it responds to a request.

In this instance, the response to your request was promptly made (the Town is to be commended for responded in fewer than the five allotted days), but the substance did not conform to the statutory requirements. Subsection E of § 2.2-3713 provides that [a]ny failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter. This exchange serves as an example illustrating the importance of recognizing a FOIA request (i.e., any request to inspect or copy public records that does not fall under some other specific procedure such as a subpoena, court order, or grievance proceeding) and responding clearly and explicitly in accordance with the statute. The language used in this response was often vague, and left unstated many essential facts. Unfortunately, rather than provide you with the records you seek, or with one of the other responses mandated by FOIA, this vagueness has lead only to further questions as it failed to communicate clearly the Town's position with regard to your request. Some of this lack of clarity may be due to familiarity between the parties and local knowledge (such as your references to landmarks in your request, the response referring to Mr. Wolfe's office without stating who he is or his relationship with the Town, etc.). However, even when such familiarity exists, and certain presumptions may be made based on local knowledge, both requesters and public bodies may be well advised to consider their requests and replies as they might be read by an outside observer with no prior knowledge of the situation, in order to assure clear, unbiased communications. Consider again the FOIA policy 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. While such efforts are to be commended, in order to be effective, they must provide the essential facts that will establish a basis for negotiation and agreement. This response did not do so, but instead left many such facts unstated (such as the Town's inability to copy plats, what would be the threshold for charging the "soft" costs of staff time, an agreement to summarize the response to your fifth Stage Street request, a timeframe for continued searching in regard to your third Highland Drive request, etc.).

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Freedom of Information Advisory Opinion 1 (2000).
²Regarding charges, as previously stated, subsection F of § 2.2-3704 provides that a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and that [a]ll charges for the supplying of requested records shall be estimated in advance at the request of the citizen. Additionally, subsection H of § 2.2-3704 provides that if a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. In the instant matter, I note that your request letter did not ask for any advance estimate of charges, nor did the response demand an advance deposit.
³See Freedom of Information Advisory Opinions 18 (2004) and 34 (2001) (FOIA does not require requests to be in writing).
⁴Freedom of Information Advisory Opinion 06 (2005) (citing Freedom of Information Advisory Opinions 14 (2000) and 47 (2001); 1991 Op. Att'y Gen. Va. 13; 1991 Op. Att'y Gen. Va. 9).
⁵You indicated that you chose to view the plats mentioned by the Town at the Town office. Upon viewing them, you found that they covered a different area, not the area in which you are interested, so you elected not to obtain copies.
⁶See § 17.1-227 (regarding documents to be recorded in deed books).
⁷See, e.g., §§ 17.1-208 (regarding court records open to inspection and copying) and 17.1-294 (secure remote access to court records).
⁸Note that a public body may not charge for the creation of new records without a prior agreement with the requester; see Freedom of Information Advisory Opinion 04 (2004).
⁹See, e.g., Freedom of Information Advisory Opinions 02 (2007), 01 (2004) and 14 (2002).
¹⁰See Freedom of Information Advisory Opinions 02 (2007) and 01 (2000).