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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-14
January
29, 2014
Lucy
Phillips, Esq.
Washington County Attorney
Abingdon, 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 electronic mail of December 20,
2013.
Dear
Ms. Phillips:
You have asked seven questions regarding electronic
mail records (email) that have gone through the County
computer network and were recorded on the County computer
system back-up database. Each question will be addressed
below in the same numerical order presented in your
inquiry.
First, you asked whether a recording of email transmissions
held in the County's back-up database makes the County
the custodian of all records contained in the database
regardless of whether such records are public records.
The Virginia Freedom of Information Act (FOIA) does
not define the term custodian, but does use
the term in referring to who receives and responds
to records requests under FOIA, and who exercises
discretion regarding exempt records.1 Observing
the lack of a statutory definition and turning to
common usage of the term custodian, this
office has previously described a custodian
as one in charge of something.2
The same opinion observed that that definition of
custodian makes sense when considered in
conjunction with the statutory definition of public
records in § 2.2-3701, which includes 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. A later
opinion also found guidance in the Virginia Public
Records Act (VPRA), which provides a similar definition
of the term custodian in § 42.1-77 to
mean the public official in charge of an office
having public records. In the context of your
question, and following prior opinions, then, the
term custodian for FOIA purposes is dependent
on preparing, owning, or possessing public records.
FOIA does not apply to records that are not public
records, and therefore the County would not be
considered the custodian of such records
for FOIA purposes. However, the County would be the
custodian of records in its back-up database that
it has prepared, owns, or possesses in the transaction
of the County's public business.
Second, you asked whether the fact that a record is
in the County's back-up database gives the County
authority to release records that are not public
records that do not involve the transaction of
the County's public business. As FOIA only applies
to public records that are in the transaction
of public business, it neither mandates nor prohibits
disclosure of records that are not public records
in the transaction of public business. Therefore the
answer to this question is no, FOIA does not grant
authority to release records that are not public
records; FOIA is silent on the issue.
Third, you asked whether a request to review all emails
for a specific member of the Board of Supervisors
for a specified period of time is reasonably specific
for FOIA purposes. You stated that the request asked
for "all email transmissions, 'including exempt
and personal email correspondence" for approximately
three years. Staff estimated that this time period
would include approximately 15,000 emails. As you
know, subsection B of § 2.2-3704 requires that
a request for public records shall identify the
requested records with reasonable specificity.
This office has previously opined on this topic that
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.3 In this instance, the request you
described would appear to be reasonably specific because
you know what records the requester seeks, but it
also appears to be voluminous and as result, likely
to be very time-consuming. As previously opined by
this office, the volume of a records request may be
the cause of increased charges for production, and
may be grounds for a public body to seek additional
time to respond. However, volume alone is not grounds
for denial of a request.4 Therefore while the voluminous
nature of this request may cause increased charges
and take additional time, it does appear to be reasonably
specific in identifying the records sought by the
requester. Additionally, you would not be required
to produce exempt records or purely personal records
that are not in the transaction of public business,
despite the request to do so.
Fourth, you asked whether the County may charge the
requester for the time necessary to review the emails
and remove those that are not public records. As you
know, 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.
Searching a database of emails for those that are
public records responsive to the request
is an allowed charge. Such a search would necessarily
include reviewing each record and then separating
out those records that are not responsive to the request.
Such non-responsive records would include both records
that are not public records at all and public
records that may be in the database but do not
fall within the parameters of the request. Thus the
real question is not whether you may charge for removing
non-responsive emails, but whether you may charge
for searching for responsive emails, and the answer
is that you may. As previously opined by this office,
the allowed charges would include charges such as
the hourly rate of pay for the staff that researched
and responded to the request and the cost of copies.
This provision would not allow for charges such as
the fringe benefits of the employees responding to
the request, because there is no nexus to the production
of the requested records.5 Therefore the
County may charge the actual amount incurred in searching
for responsive public records based on the
hourly rate of the employee who performed the search,
not including fringe benefits.
As background to your fifth question, you indicated
that the Board of Supervisors appointed one Supervisor
to serve on other non-County boards and authorities.
You ask whether emails in regard to these other boards
and authorities are public records for the
purposes of the County's response to a FOIA request.
You also pointed out that some of those emails about
non-County business would be exempt, but that the
County Administrator who would review them might not
be aware which documents would be exempt. As previously
opined by this office, electronic mail messages between
members of a public body that are not related to the
transaction of public business are not public
records under FOIA, and therefore are not subject
to its mandatory disclosure requirements. The fact
that electronic mail messages go through a government
agency’s electronic mail database does not, by itself,
make them public records. Additionally, it is the
subject of those electronic mail messages
that determines their status as public records. Under
Virginia FOIA, a public body is responsible for providing
the records it uses in the transaction of its own
public business.6 Therefore even though the County
may be in possession of emails or other records of
other bodies, those records would not be public
records for which the County is the custodian
because they are not records in the transaction of
the County's public business. You indicated that the
Board of Supervisors made the appointments to the
non-County boards and authorities. Records of appointments
made by the Board of Supervisors would be County business,
and those records would be public records for which
the County is custodian. However, records concerning
the transaction of public business by the non-County
boards and authorities would not be records of the
County's public business, and therefore would not
be the County's public records. Therefore emails concerning
the non-County boards and authorities would be the
County's public records when the subject is appointment
by the Board of Supervisors, but would not be such
when the subject is the substantive business of the
non-County boards and authorities. If the non-County
boards and authorities mentioned are themselves public
bodies, then under FOIA, they are the custodians of
their own records and would be responsible to respond
to requests for them. As a matter of records management
practices, it may be advisable for individuals who
serve on multiple public bodies to separately store
and organize their records as to each body, and to
ensure that whoever serves as the records custodian
for each body has access to the appropriate records.
Sixth, you ask whether the rights established by FOIA
for an elected member of a governing body are greater
than those of other citizens of the Commonwealth.
The policy expressed in subsection B of § 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. This policy
is given effect in the context of records requests
in subsection A of § 2.2-3704: Except 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. Access
to such records shall not be denied to citizens of
the Commonwealth, representatives of newspapers and
magazines with circulation in the Commonwealth, and
representatives of radio and television stations broadcasting
in or into the Commonwealth. This office has
previously considered FOIA requests by government
employees and opined as follows:
The
law does not distinguish between a citizen of the
Commonwealth and government employees. Individuals
who choose to work in public service for state and
local government do make some sacrifices. Government
employees often must accept a lower salary or rate
of pay than people performing equivalent jobs in
the private sector. Government employees also give
up some privacy in choosing to work in the public
sector. For example, subsection B of § 2.2-3705
specifically states that a government employee's
salary or rate of pay and reimbursements are a matter
of public record. However, in making these sacrifices
to work in the public sector, a government employee
does not give up rights as a citizen. When an employee
makes a FOIA request, he is acting in his capacity
as a citizen and is entitled to the same rights
and protections as other citizens making the same
request. An employee's FOIA request should not be
responded to any differently than other requests,
and should be handled in the same routine manner.
Just
as with government employees, nothing in FOIA establishes
additional, separate, or different rights for elected
officials.7
Seventh, you asked whether individual members of an
elected governing body are the custodians of their
individual email transmissions sent and received through
the County network, or whether the County is the custodian.
As stated above, the term custodian is not
defined but generally refers to the person who prepares,
owns, or possesses the public records at issue, or
who has responsibility to retain them under VPRA.
In the sense of constructive or legal ownership, the
County is the custodian of all public records concerning
the transaction of the County's public business, regardless
of who has actual possession.8 However, on a practical
level, the County is a legal entity that only acts
through its officials and employees, and it takes
an actual person to respond to a request. FOIA does
not require a public body to designate any particular
individual as the person to respond to FOIA requests,
nor does FOIA delve into questions of the internal
organization or structure of public bodies. In practice,
it has been my experience that different localities
and agencies vary in how they assign duties to respond
to FOIA requests. Some designate one person as a FOIA
officer, some handle requests through their central
administrative or attorneys' offices, some designate
separate FOIA contacts for each department, some do
not have any particular person designated to handle
FOIA requests, etc. Different public bodies also engage
in different records management practices and have
different policies regarding email. For example, some
public bodies issue email accounts to all of their
officials, those officials use those accounts, and
access to those email accounts is retained by the
public body at all times. In other cases some officials
may use other email accounts to which only they have
direct access, such as personal or private business
accounts. FOIA is silent regarding these practices,
but keeping in mind that the definition of public
records would include all such emails in the
transaction of public business, regardless of the
account used, we have advised that all emails in the
transaction of public business should either be on
government accounts or be copied to staff. Doing so
facilitates archiving email records and responding
to future requests for such records. I do not know
how the County handles these issues, but it would
be an internal decision by the County whether to have
Supervisors act as custodians of their own email or
to have the County Administrator (or some other employee
or designee) handle such requests. Depending on the
circumstances, it may be necessary to have the Supervisors
involved access their own email accounts, particularly
if they use personal or private business accounts
in the transaction of public business. For FOIA purposes
in this instance, all that matters is that the response
given the requester is in compliance with FOIA, not
who processes the request or sends the response.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1See
subsections A and B of § 2.2-3704, and the prefatory
language of §§ 2.2-3705.1 through 2.2-3705.7
and subdivision A 2 of § 2.2-3706 (The following
records are excluded from the provisions of this chapter
but may be disclosed by the custodian in his discretion,
except where such disclosure is prohibited by law.).
2Freedom of Information Advisory Opinion
37 (2001)(quoting The American Heritage College Dictionary
(3d ed. 1993)).
3Freedom of Information Advisory Opinion
1 (2000).
4Freedom of Information Advisory Opinion
3 (2008).
5Freedom of Information Advisory Opinion
05 (2006).
6Freedom of Information Advisory Opinion
04 (2010).
7Note that both elected officials and public
employees may be given additional access to records
as needed to fulfill their public duties, such as
law enforcement officers having access to criminal
investigative files, but these are not rights derived
from FOIA. Any such additional rights, powers, and
duties would come from other legal authorities. Further,
note that members of public bodies do necessarily
have additional rights and responsibilities regarding
the conduct of public meetings, such as complying
with the requirements to give public notice and take
minutes, restrictions on closed meetings and voting,
etc.
8See Freedom of Information Advisory
Opinions 13 (2008) and 37 (2001) regarding constructive
possession of public records.
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