VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-05-12

October 26, 2012

Rachael A. Sanford, Esq.
Clement & Wheatley, P.C.
Danville, 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 our telephone conversation of September 10, 2012, and your letter of September 11, 2012.

Dear Ms. Sanford:

You have asked whether an authority under the Water and Waste Authorities Act¹ (the Authority) must post its meeting agenda packets on its website prior to meetings of the commissioners of the Authority when requested to do so by a citizen. You stated that your understanding was that the Authority is required to make the agenda packets available for public inspection at the same time the agenda packet materials are made available to the commissioners, but that there is no requirement to post the packets on the Authority's website.

The policy of the Virginia Freedom of Information Act (FOIA) expressed in § 2.2-3700 is to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The definition of public body in § 2.2-3701 includes any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth. [Emphasis added.] Under this definition meetings of the Authority are meetings of a public body subject to FOIA.

Within FOIA, subsection F of § 2.2-3707 states that [a]t least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body.² This subsection sets out the minimum requirement of FOIA, which you have correctly surmised requires that Authority make available for public inspection a copy of agenda packets at the same time such agenda packets are provided to the commissioners. So long as the Authority does so, then it is in compliance with this FOIA requirement.

However, the inquiry does not end with that consideration. FOIA is generally divided into two main aspects, one addressing the requirements for access to public records, the other addressing access to public meetings. The requirement to make agenda packets available for public inspection quoted above comes from the meetings side of FOIA. Agenda packets are also public records as that term is defined in § 2.2-3701, as they are 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, and as such, agenda packets are also subject to the records side of FOIA. Observe that under FOIA a requester generally has the choice whether to inspect or to copy public records, and a public body generally has five working days to respond to a request. Also please note that the provisions of FOIA addressing access to records are request-driven. Specifically, subsection A of § 2.2-3704 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]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.³ By contrast, the provision concerning agenda packets quoted previously is an affirmative requirement to make agenda packets available for public inspection at the same time they are furnished to the members. That requirement is not request-driven or subject to the five working day deadline, it is driven by and timed to coincide with the furnishing of records to the members.

In order to address your inquiry fully, we must look both at the affirmative disclosure requirement from the meetings side of FOIA, as well as the request-driven procedure from the records side of FOIA. We must also consider whether the agenda packets even exist at the time the request is made, as subsection D of § 2.2-3704 states that no public body shall be required to create a new record if the record does not already exist. FOIA does not require public bodies to use an agenda or agenda packets - in some cases, there may be no agenda or agenda packets. Additionally, FOIA does not require public bodies to honor standing requests for records that may be created in the future but do not yet exist.⁴ Therefore if the requester asks for agenda packets before they have been created, the proper response is to inform the requester in writing that they do not exist, pursuant to subdivision B 3 of § 2.2-3704. If records will be created later, as a matter of best practices and good public relations the public body may wish to make an agreement with the requester to provide the records after they are created, even though it is not required to do so. If the records do exist at the time the request is made, then the timing of the response depends on whether the agenda packets have been furnished to the Commissioners and whether the requester is seeking to inspect the agenda packets or receive copies. For example, if a request is made to inspect or copy agenda packets, and the records do exist but have not yet been furnished to the Commissioners, then the Authority would have five working days to respond, just as it would with any other request for public records. If a request is made to inspect the agenda packet after it has been provided to the Commissioners, then a copy should already be available for public inspection due to the affirmative disclosure requirement of subsection F of § 2.2-3707 (i.e., anyone could come in and inspect the agenda packet during the regular office hours of the custodian). However, even after the agenda packet has been furnished to the Commissioners, the Authority would still have five working days to respond to a request for copies of the agenda packet, as the affirmative requirement on the meetings side only addresses public inspection.

Turning next to the question of posting agenda packet materials on the Authority's website, you are correct that subsection F of § 2.2-3707 does not require such posting. That subsection only requires that agenda packets be made available for public inspection. However, FOIA does address posting records on a website in the context of a records request, under subsection G of § 2.2-3704:

Public bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester, including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body shall be required to produce records from an electronic database in a format not regularly used by the public body.

In practical terms, note that the mandatory posting requirement as currently written effectively states that a public body must post electronic records upon request, but only if it already does so anyway. Due to the context of your question, I presume that the Authority does have a website, but I do not know whether the agenda packets at issue are electronic records or whether the Authority uses its website to post agenda packets in the regular course of business. Following the provision quoted above, if the agenda packets are electronic records that already exist at the time the request is made, and the Authority has a website on which it posts such agenda packets in the regular course of business, then the Authority would be required to post agenda packet materials on its website if it were requested to do so. However, keep in mind that such a request is not the same as the affirmative requirement to make agenda packets available for public inspection. The Authority would have the usual five working days to respond after a request was received asking the Authority to post records on its website.

Additionally, I would note that as a matter of legislative history, it appears that this provision concerning posting records on a website was passed in two different forms in separate acts in 1999.⁵ The language enacted by chapter 438 read as follows:

The public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester.⁶

This language appears to have been intended to provide public bodies with additional options in negotiating the production of records with a requester. However, it appears that the language had to be reconciled with the language of two other enactments that also amended FOIA that same year, chapters 703 and 726. Those enactments contained language that matches the current law:

Public bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester, including posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body shall be required to produce records from an electronic database in a format not regularly used by the public body.⁷

Chapters 703 and 726 were enacted subsequent to the chapter 438, and following rules of statutory construction, the language used in them therefore is controlling.⁸ The current phrasing begins by mandating that public bodies shall produce nonexempt records, which as a matter of statutory interpretation, appears to have a very different effect from the language of chapter 438, which only mandated that public bodies shall make reasonable efforts to reach an agreement. While the bill summaries are not law, I note that the summary for chapter 438 states that the bill [a]llows public bodies, when responding to request for information, to post requested records on a website or to deliver the records through an electronic mail address provided by the requester. The summaries for chapters 703 and 726 do not mention posting records on a website at all. Regarding electronic records, those summaries speak to providing electronic records at a reasonable cost and clarify that the excision of exempt fields from a database is not the creation of a new record. While the legislative history is not entirely clear, it appears that under current FOIA, the requirement to post records on a website upon request is mandatory if the other conditions are met (i.e., the public body has a website and the request is for an electronic record of a type the public body posts on its website in the regular course of business), while the original intent may have been only to provide additional options for the public body when negotiating the production of records, rather than a mandatory posting requirement. Given the murky legislative history and the seemingly redundant practical effect described previously, the General Assembly may wish to revisit this aspect of FOIA.

Lastly, I would note that as a practical matter, if the Authority has the ability to post agenda packet materials on its website, it is generally a good idea to do so, even if the circumstances make it so it is not specifically required under FOIA. As previously opined, this office advises public bodies to publish routinely requested records on their websites or to have extra copies of such records available in order to expedite requests and minimize costs. Our general experience is that many people appreciate the convenience of being able to access public records online at any time and from multiple locations. Additionally, posting records online may obviate the need to make requests for public records in many instances, as the requesters may access the records from the public body's website without contacting the public body. Additionally, having online access allows citizens the choice whether to print records themselves, to save electronic copies, or merely to view the records as posted. Posting records online may thereby reduce copy costs and save time for both citizens and public bodies. In these ways, publishing records online furthers the FOIA policy of ensuring ready access to public records while saving time and money for all involved. For these reasons, we encourage the practice of posting public records online.⁹

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Created pursuant to § 15.2-5102.
²For purposes of this opinion, the phrase "agenda packets" is used hereafter to mean agenda packets and any other materials furnished to the members for a meeting which are not exempt from disclosure.
³In summary, the other responses would be (1) to deny the request pursuant to an applicable exemption; (2) to provide the records in part but deny the rest, again pursuant to an applicable exemption; (3) to inform the requester that the records cannot be found or do not exist; or (4) to invoke an additional seven working days to respond.
⁴See Freedom of Information Advisory Opinions 03 (2009) and 23 (2003).
⁵1999 Acts of Assembly, cc. 438, 703, and 726.
⁶1999 Acts of Assembly, c. 438.
⁷1999 Acts of Assembly, cc. 703 and 726 (stricken language omitted).
⁸Commonwealth v. Sanderson, 170 Va. 33, 41, 195 S.E. 516, 520 (Va. 1938)(when two statutes passed during the same session of the General Assembly are in conflict, "that last approved by the Governor must prevail."). HB 2638 was approved by the Governor on March 25, 1999. SB 1023 and HB 1985 were both approved by the Governor on March 28, 1999.
⁹Freedom of Information Advisory Opinion 08 (2009).

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