VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-02-12

March 16, 2012

Robert L. Browne, Esq.
Manassas, 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 January 18, 2012.

Dear Mr. Browne:

You have asked several questions regarding a request for records made to the Virginia Department of Transportation (VDOT) under the Virginia Freedom of Information Act (FOIA). The request asked that VDOT "make available for inspection (and possible copying)" 27 categories of records, all generally related to the widening of a particular road in the County of Prince William. The response from VDOT stated that "the documents held by VDOT that are responsive to your request are available for inspection and copying at [a VDOT District Office]." The response further indicated that the records included "a mixture of hard copies and digital files," and that the digital files were copied onto CD's that you were welcome to take with you "to review at your convenience." Regarding other copies, VDOT offered to make arrangements to copy the records you wanted after your review, or to let you make your own copies with your own equipment if you wish. After additional inquiry from you, VDOT further replied that "all documents that the agency possessed and that were responsive to your request were produced. No documents were withheld." You ask whether VDOT's response was deficient in three regards: (1) that the response was too narrow because it refers only to records "held" by VDOT, and does not specify anything about additional records that may be held by other public bodies; (2) that the apparent effort to locate and produce responsive records was insufficient; and (3) that the response was not sorted to match the 27 categories of inquiry.

The policy of FOIA stated in § 2.2-3701 is that all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked. In implementing this policy, subsection A of § 2.2-3704 gives the requester the right to inspect or to copy the desired public records. Subsection B of § 2.2-3704 requires that [a]ny public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of four other responses, in writing: (1) withhold the records entirely; (2) provide the records in part, and withhold the remainder; (3) state that the records cannot be found or do not exist; or (4) invoke an additional seven working days to respond. In this instance, it appears that VDOT provided the requested records for inspection and copying. VDOT did not deny your request in whole or in part, did not state that the records could not be found or did not exist, and did not invoke additional time to respond. Therefore it appears that VDOT's response was in compliance with the requirements of FOIA.

Addressing the issues you raised, I note that all of them are premised on the provisions of subdivision B 3 of § 2.2-3704, which applies when the requested records could not be found or do not exist. That subdivision further requires that if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body. Your first inquiry asked whether the written response was too narrow. Your second inquiry concerned the apparent effort made by VDOT to locate and produce responsive records. In this instance VDOT did not state that records could not be found or did not exist, it provided the requested records for inspection and copying. Therefore the response set forth in subdivision B 3 does not apply in this situation. VDOT, as custodian of its own records, has provided those records for your inspection and copying. It is not required to do more.

As background, note that the response that the records could not be found or do not exist was added to FOIA in 2007 after being studied and recommended by the FOIA Council.¹ The meeting minutes of the FOIA Council subcommittee that studied the issue are informative regarding the reasons for this change in the law:

Language was drafted so that public bodies could state either that the requested records could not be found or that the records do not exist. Concern was expressed that simply stating that the records "do not exist" could lead to the problem of having to prove a nullity, thus leading to the conclusion that stating that the records "could not be found" was preferable in some situations. On the other hand, in other situations it may be readily known that the public body does not have the requested records, and so stating that the records "could not be found" would imply that a search was made for the records when none was conducted. Therefore the added language allows for either response, to be used as appropriate under the circumstances of each request. The subcommittee also decided that it was unnecessary to add specific language concerning a search for records, as making a good faith search for records is already an implicit requirement of FOIA whenever requested records are not immediately available or known not to exist. The draft language also provides that if the public body that receives the request does not have the requested records, but knows that another public body does have them, then the requester shall be so informed.²

The issue of searching for records was also the subject of a prior advisory opinion, wherein this office opined that [c]onsidering the policy of FOIA, the legal duties it imposes, and the presumption that public officials will obey the law in carrying out their duties, therefore, it must be presumed that while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith.³ Therefore in the context of your inquiry, it becomes clear that it is presumed that VDOT made whatever good faith search was necessary to provide you with the records you sought. The could not be found or do not exist response is for those situations where the custodian does not have responsive records, and even then, only requires that the custodian inform a requester if the custodian has actual knowledge that some other public body does have responsive records. That is not the situation presented here, where VDOT did in fact have responsive records and provided them. In this instance, providing the records as requested was the proper and sufficient response.

Additionally, you referenced the portion of subsection J of the same section which provides that

In the event a public body has transferred possession of public records to any entity, including but not limited to any other public body, for storage, maintenance, or archiving, the public body initiating the transfer of such records shall remain the custodian of such records for purposes of responding to requests for public records made pursuant to this chapter and shall be responsible for retrieving and supplying such public records to the requester.

This provision addresses situations where records may have been transferred from one agency to another, such as when records are transferred to the Library of Virginia for archiving, or when a state agency's records are held on computers maintained by the Virginia Information Technology Agency (VITA) through its contract with Northrop Grumman. This section addresses the question of whether the Library of Virginia or VITA becomes the custodian of records when they store another agency's records. The answer is no, as stated in the law.

The crux of your concern appears to be that there may be additional records that respond to your request but are held by other public bodies. I would take this opportunity to note that FOIA requires the custodian of records to respond to requests. FOIA does not define what is a custodian. This office has opined that the concept would include both actual custody of records as well as legal ownership.⁴ We also stated in the context of a student government that as a practical matter, each branch of government might be considered the custodian of its own records.⁵ In your inquiry you referred to the possibility that other government bodies, such as the Commonwealth Transportation Board, the Department of Environmental Quality, or the County of Prince William, might also have responsive records. This may be true, but there is no evidence that VDOT is the custodian of records for any of these separate entities. Because they are separate public bodies, it may be presumed that VDOT is not the actual or legal custodian of these other entities' records. Under FOIA, a public body is only responsible for its own records, not the records of other public bodies, except to the extent such other records are in the possession of the public body in the transaction of its public business.⁶ For example, if VDOT and the County shared records about this project, and both entities were in possession of the records, then you could get the records from either public body. On the other hand, if the County generated relevant records that it did not share with VDOT, VDOT would not be in possession of those records and would not be responsible to provide them. Therefore this aspect of your inquiry must be answered in the negative: VDOT's response was not insufficient in that it did not refer to records held by other public bodies. Again, VDOT provided you with the records you requested that are in VDOT's possession. If you believe that other public bodies might also have records responsive to your request, the proper course of action would be to make separate records requests to those other public bodies.

Finally, you ask whether VDOT's failure to sort its records in response to your request in 27 categories is also insufficient, and what would be the proper manner for a government agency to make collected documents available. FOIA is silent in regard to sorting, categorizing, or otherwise organizing a response to a records request. Generally speaking, this office tries to approach FOIA in a practical manner. Considering that different agencies keep their records in different ways, responses to requests will vary depending on the nature of the request and the way in which the public body keeps the records. The scope of a request will also affect the nature of the response as a matter of course. In this instance, you asked to inspect 27 categories of records all pertaining to the widening of a certain road, generally covering a thirteen year period from 1998-2011. Given the breadth of your request, and that VDOT provided all of its responsive records, it does not appear unreasonable for VDOT to simply provide all the records it had in whatever form of organization VDOT itself uses when storing its records. Noting that VDOT could charge for staff time in accessing, duplicating, and supplying records, it would seem as a practical matter that simply giving you all of the records as they were kept by VDOT is the more efficient solution in this situation, both in terms of cost and time involved. This office does not have the specific knowledge of how any other agency keeps its records and there is no law specifying the manner in which records are to be kept. Therefore we cannot offer a more specific answer regarding how records should be produced in any given situation. Keeping in mind that FOIA is not discovery under the Rules of Court, there is no explicit requirement in FOIA to provide numbered responses or an equivalent to a discovery log. On the other hand, a public body must act in good faith in producing records that are responsive to the request and not produce them in such a manner as to obfuscate the information or otherwise make it more difficult for the requester. As always, communication between the requester and the public body is key to a successful FOIA transaction. To the extent you desire records be produced in a specific manner, you should communicate this to VDOT and work out an agreement with them. As provided 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.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹2007 Acts of Assembly, c. 439.
²FOIA Council Fifth Response Subcommittee meeting minutes, July 27, 2006 (available on the FOIA Council website at http://foiacouncil.dls.virginia.gov/subcom_mtgs/2006/sm072706.htm).
³Freedom of Information Advisory Opinion 04 (2010).
⁴Freedom of Information Advisory Opinions 13 (2008) and 37 (2001).
⁵Freedom of Information Advisory Opinion 05 (2007).
⁶Keeping in mind the definition of public records in § 2.2-3701, which includes all records prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.