|
|
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-18
January
15, 2018
Les
Fettig
Via Electronic Mail
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 messages dated September
27 through October 17, 2017, and telephone conversations
I had with you and with staff at the City of Alexandria
regarding your request during the same time period.
Dear
Mr. Fettig:
You have asked for an opinion regarding a request
you made to the City of Alexandria under the Virginia
Freedom of Information Act (FOIA) and the City's responses
to that request. As background, you included your
request letter to the City dated September 19, 2017,
which asked for copies of the following public records:
1. Business licensing for "White Canvas,"
including office information, contact points, registered
agent, applications, renewals, notices, standing
and city actions.
2.
Business licensing for "McChrystal," including
office information, contact points, registered agent,
applications, renewals, notices, standing and city
actions.
You also included the City's response dated September
26, 2017, which stated as follows:
This
is to acknowledge receipt of your request under
the Freedom of Information Act(FOIA) dated 09/19/2017
referenced above. The records you have requested
are being entirely withheld. These documents are
being withheld pursuant to Code of Virginia §
58.1-3131, because the records are not subject to
public disclosure. The records being entirely withheld
total approximately 12 pages. This letter is for
your information and your FOIA request file is now
closed.
You replied to the City's response by email dated
September 27, 2017, and included a courtesy copy of
that email to this office. Your reply asserted that
the City's
response
is unlawful, obnoxious and specious. This is not
a good faith disagreement, it is a bad faith violation
of Virginia statute.
1. The Alexandria CIty [sic] Attorney's
office recognizes what I have said before, when
you sent a 2-line Excel worksheet cut-and-paste
that gave less information than in a phone book.
The
Attorney's Office openly stipulates that in conformance
with Viginia [sic] statute, the public
is entitled to all "Existing records prepared
by or in the possession of a public body or its
officers or employees in the ordinary transaction
of public business. All public records are presumed
to be open and are withheld only if a specific exemption
applies."
You are in violation of the law of the Commonwealth.
That's plain English, no intepretation [sic]
needed.
2. Now, you summarily interpose an irrelevant exception
for city warrants, bills and invoices that has nothing
to do with the FOIA . You try to cite VA Code 58.1-3131
as a blanket "exception." It is no such
thing. Warrants have not a thing to do with the
records requested, attachd [sic] again.
(For what it's worth, the request does not cover
any warrants for these companies, and there's no
interest in their bill-paying history, if any there
be.)
You
are in violation of the law of the Commonwealth
for claiming such an inapplicable exception. That's
plain English.
3. Further, you are not required to "create
any records that do not already exist or answer
general questions."
I look forward to prompt processing.
In the meantime, please refer refer [sic]
this matter to the City Attorney for his personal
attention, as I do the same to other channels available
for recourse.
After speaking with City staff to discuss this matter
on October 3, 2017, I informed you by electronic mail
that my understanding was that § 58.1-3131 was
cited in error, and the City has followed up with
a citation to § 58.1-3, which, as we discussed,
appears to be the correct section addressing business
license records. Specifically, in relevant part, subdivision
B 1 of § 58.1-3 provides as follows: "This
section shall not be construed to prohibit a local
tax official from disclosing whether a person, firm
or corporation is licensed to do business in that
locality and divulging, upon written request, the
name and address of any person, firm or corporation
transacting business under a fictitious name."
You replied by requesting a formal advisory opinion
"with an assigned case number" that appends
"the attachments of correspondence, the brief
presented to you earlier and this rebuttal to the
new exclusion assertion" and addresses the following
points:
a. Whether the City's preemptive shut down of the
case was appropriate.
b. Whether the City's failure to inform me of appel
[sic] rights was appropriate.
c. Whether the City's assertion of § 58.1-3131
Warrant Book exclusion applies to requested business
licensing records (no matter the reason, mistake
or not).
d. Whether the City's assertion of § 58.1-3
exclusion for Tax Commissioner records applies to
requested business licensing records.
e. Whether fundamental statutory policy weighing
in favor of disclosure and construing exclusions
only narrowly applies to your Opinion in this matter.
f. Whether the City should have and must now comply
with the FOIA request.
As requested, the correspondence and attachments you
sent are incorporated by reference and as quoted throughout
this opinion. However, while we do use shorthand to
refer to our advisory opinions (for example, AO-01-10
would refer to Advisory Opinion 01 issued in 2010),
we do not assign case numbers to them. Each of your
points will be addressed in turn below.
In addressing this matter, we must first keep in mind
the policy of FOIA as stated in subsection B of §
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, every meeting
shall be open to the public and 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.
. . .
.
. . Any exemption from public access to records
or meetings shall be narrowly construed and no record
shall be withheld or meeting closed to the public
unless specifically made exempt pursuant to this
chapter or other specific provision of law.
Because this matter also concerns tax laws outside
of FOIA, we must also keep in mind the limited authority
of the FOIA Council under subdivision 1 of §
30-179 to "[f]urnish, upon request, advisory
opinions or guidelines, and other appropriate information
regarding [FOIA] to any person or agency of state
or local government, in an expeditious manner."1
Your
first inquiry asked whether "the City's preemptive
shut down of the case was appropriate." As to
the "preemptive shut down of the case,"
I presume that you refer to the portion of the City's
reply stating that "your FOIA request file is
now closed." Please note that FOIA itself does
not refer to requests for public records as "cases"
or specify that a public body must open a "request
file" in order to respond to a FOIA request.
In FOIA terms, the City did not preemptively shut
down the case, it merely responded to your FOIA request.
Therefore, we analyze your first inquiry by looking
at whether the City complied with the mandatory procedure
for a response. FOIA requires under subsection B of
§ 2.2-3704 that a public body that is the custodian
of requested records respond "promptly, but in
all cases within five working days of receiving a
request" by either providing the requested records
or providing one of four other types of responses,
summarized as follows: (1) deny the request in its
entirety; (2) deny the request in part but provide
the remainder of the requested records; (3) state
that the records cannot be found or do not exist;
or (4) invoke an additional seven working days to
respond. First, addressing the timing, it appears
that your initial request was made on Tuesday, September
19, 2017, and the City's response was sent on Tuesday,
September 26, 2017. The term "working days"
has been interpreted generally not to include weekends,
legal holidays, or other days when a public body's
offices are closed.2 The first day to respond to a
request is the day after a request is received.3 Therefore,
it appears that the City's response was sent on the
fifth day after your request was received (assuming
it was received on the day it was sent), and therefore
the City's response appears to be within the time
limit required by FOIA.
As
to the response itself, the City appears to have denied
your request in its entirety. Whenever a public body
denies a request entirely, subdivision B 1 of §
2.2-3704 requires that the public body send a written
reply that "shall identify with reasonable particularity
the volume and subject matter of withheld records,
and cite, as to each category of withheld records,
the specific Code section that authorizes the withholding
of the records." In this instance, the City's
reply cited Code § 58.1-3131 and identified the
volume as approximately 12 pages of records. Your
request itself identified the subject of the requested
records as business licensing for "White Canvas"
and "McChrystal," and it appears the City
meant the reference back to your initial request as
the identification of the subject matter. While identification
of the subject matter of the withheld records could
have been made more explicitly, it appears that the
City did comply with the basic procedural requirements
of FOIA in responding to your request.
Your
second inquiry asked whether the City's failure to
inform you of appeal rights was appropriate. The statutory
remedy for a FOIA violation is a petition for mandamus
or injunction supported by an affidavit showing good
cause as set forth in §§ 2.2-3713 and 2.2-3714.
There is a requirement for public bodies, including
cities, to post a statement of FOIA rights and responsibilities
pursuant to § 2.2-3704.1. Subdivision A 1 of
that section requires that the statement include a
"plain English explanation of the rights of a
requester under this chapter, the procedures to obtain
public records from the public body, and the responsibilities
of the public body in complying with this chapter."
However, that section does not explicitly require
that the statement of rights and responsibilities
include information about filing a petition for mandamus
or injunction. As part of our statutory duties,4 the
FOIA Council publishes a model statement on the Council's
website that includes the following sentence: "If
you believe that your FOIA rights have been violated,
you may file a petition in district or circuit court
to compel compliance with FOIA." It appears that
the City does have information about a requester's
rights and responsibilities posted on its website5
but that its website does not provide any information
about filing a petition for mandamus or injunction.
Because posting such information is not explicitly
required, I cannot opine that it is a violation of
FOIA not to do so. However, as indicated by the model
template published by this office, the better practice
would be to include information on the right to file
a petition for mandamus or injunction.
Your
third and fourth inquiries asked whether "the
City's assertion of § 58.1-3131 Warrant Book
exclusion applies to requested business licensing
records (no matter the reason, mistake or not)"
and whether "the City's assertion of § 58.1-3
exclusion for Tax Commissioner records applies to
requested business licensing records," respectively,
and will be analyzed together. You asserted that §
58.1-3131 was not only cited in error but was cited
in bad faith to deny your request. If in fact this
Code section (or any other) was asserted in bad faith
to withhold records that otherwise would be required
to be released, then such an action taken in bad faith
would clearly violate FOIA's requirements to release
public records unless such records are exempt. However,
this office has no authority to investigate or rule
on whether another public body has acted in bad faith.
To do so would require proof before a court, not this
office. Regarding § 58.1-3131, that section of
the tax code states in full as follows:
The treasurer shall provide and keep a well-bound
book, in which he shall make an entry of all warrants
legally drawn upon him by the governing body and
presented for payment, stating correctly the amount,
number, in whose favor drawn and the date such warrant
was issued. All such warrants shall be paid, in
the order presented, out of the fund drawn upon.
No
information contained in the list of warrants, including
any invoice that has been presented to a locality
for payment, and the locality has attempted to pay
it, but the payment has not been completed because
electronic payment has failed or a check was mailed
but not cashed, shall be released for any purpose
except (i) that the local governing body may publish
aggregated information relating to warrants paid,
as classified by expenditure item, recipient, date,
or disbursement, or (ii) as a means of establishing
the status of a claim previously reported as having
been paid when a person legally entitled to the
funds presents evidence that a previously submitted
claim has not been paid. In no case, however, shall
the governing body of any county, city, or town
publish any information that is prohibited from
release under federal or state law, including but
not limited to confidential records held pursuant
to § 58.1-3.
On its face, that section clearly provides that "no
information contained in the list of warrants . .
. shall be released for any purpose," with certain
limited exceptions. Subsection A of § 2.2-3704
in FOIA states that public records must be released
"[e]xcept as otherwise specifically provided
by law." Thus, § 58.1-3131 is an exception
to the mandatory disclosure that would otherwise be
required under FOIA in that § 58.1-3131 prohibits
the release of certain information. However, as we
discussed, it is not clear what information is included
in such a list of warrants. Additionally, the final
sentence of § 58.1-3131 refers not only to warrants
but to "any information that is prohibited from
release under federal or state law, including but
not limited to confidential records held pursuant
to § 58.1-3." Regarding the application
of § 58.1-3131, research did not reveal any relevant
precedents applying this statute in the context of
FOIA or defining what is a "warrant book"
or "list of warrants" for purposes of §
58.1-3131, or explaining what other information it
may be intended to cover under the final sentence.
As previously stated, such questions requiring independent
interpretation of other Code sections cannot be answered
by this office because our purview is limited by statute
to questions concerning the Freedom of Information
Act.6 However, such questions were rendered moot when
the City asserted that § 58.1-3131 was cited
in error and that the correct cite was § 58.1-3.
Before
addressing the substance of § 58.1-3, please
note that while providing an incorrect cite may be
a procedural error, it appears likely that it would
not be viewed by a court as a violation of right so
long as the records withheld were in fact exempt under
some other provision of law. The Supreme Court of
Virginia, in the case of Lawrence v. Jenkins,
held that there is no denial of rights when a public
official responding to a FOIA request "chooses
to exercise an exemption, redacts the exempt information
from the documents, but fails to timely reference
the applicable Code section making portions of the
requested documents exempt."7 In summary, the
Court found that the responding public body elected
to use an exemption to withhold certain information
and that the information was actually exempt but the
public body did not cite the specific Code section
exempting the information within the time limit imposed
by FOIA. Despite this procedural failure, the Court
found that there was no violation of right (i.e.,
the requester had no right to the records because
they were exempt) and therefore mandamus would not
apply. Reasoning by analogy, it would appear that
the erroneous cite to § 58.1-3131 would likewise
not be seen as a violation of right, if the requested
records were actually exempt under § 58.1-3,
as subsequently asserted by the City.
Therefore, the real question is whether the business
licensing records you requested are exempt or prohibited
from release under § 58.1-3 (your fourth inquiry).
That Code section generally provides that certain
officials such as treasurers, commissioners of the
revenue, tax officials, and others "shall not
divulge any information acquired by [them] in the
performance of [their] duties with respect to the
transactions, property, including personal property,
income or business of any person, firm or corporation."
That section includes certain exceptions to the rule
against divulgence of information, and it carries
a misdemeanor penalty. You contest the application
of § 58.1-3 to the records you requested, however,
stating as follows in your email dated October 18,
2017:
In no way or fashion does this provision cover "business
license records." It covers income tax filings
under the Tax Code, Tax Commissioner, agents and
treasurer, revenue employees.
(1)
§ 58.1-3 applies exclusively to "the Tax
Commissioner or agent, clerk, commissioner of the
revenue, treasurer, or any other state or local
tax or revenue officer or employee, or any person
to whom tax information is divulged …," certainly
not the FOIA officers or supervising City Attorney
exercising FOIA obligations covering business licenses.
(2)
There is no such "addressing" stated or
implied for business license records. (And if need
be, I'd again forswear I did not ask for or intend
now to receive tax records.)
(3) And to make clear the scope, interpretation
and intent of § 58.1-3, the tax records withholding
grants exceptions for "Land preservation TAX
credits" (§ 58.1-512), and for the Commissioner
of the Department of Motor Vehicles to share motor
vehicle fuel TAX records with other states and countries
(§ 58.1-2712.2).
Please
feel free to cite in your Opinion the absence of
any case law, legislative language, interpretations
or contortion of the English language that would
support a FOIA exclusion for business licensing
under § 58.1-3.
While an independent interpretation of § 58.1-3
would be beyond the purview of this office, I would
note in reply to your first point that subsection
F of § 58.1-3 appears to expand its application
to others by its own terms: "Additionally, it
shall be unlawful for any person
to disseminate, publish, or cause to be published
any confidential tax document which he knows or has
reason to know is a confidential tax document."
[Emphasis added.] In reply to your second point, I
will again quote from subsection B of § 58.1-3,
where it explicitly addresses business license information:
"This section shall not be construed to prohibit
a local tax official from disclosing whether a person,
firm or corporation is licensed to do business in
that locality and divulging, upon written request,
the name and address of any person, firm or corporation
transacting business under a fictitious name."
Following its own language, the listed information
may be disclosed without violating § 58.1-3.
Additionally, please note that this office has previously
summarized opinions of the Attorney General concerning
§ 58.1-3, observing that information such as
whether a business is licensed, the name, address,
and telephone number of the business, and the type
of business would all be subject to disclosure.8 However,
it is not known what are the contents of the approximately
12 page of records withheld by the City, and so I
cannot offer any definite opinion regarding the City's
assertion that § 58.1-3 prohibits the release
of those records. Those pages may or may not be prohibited
from release depending on their contents. In regard
to your third point, as stated previously, on its
face subsection A of § 58.1-3 applies to "any
information acquired by him in the performance of
his duties with respect to the transactions, property,
including personal property, income or business of
any person, firm or corporation," not just land
preservation tax credits or motor vehicle fuel tax
records. If you feel that § 58.1-3 does not apply
in this instance, and that your FOIA rights have been
violated by the City's assertion of § 58.1-3,
then the appropriate course of action would be to
file a petition for mandamus or injunction as stated
above, so that an appropriate court might examine
the withheld records and determine whether their release
is prohibited by § 58.1-3.
Your
fifth inquiry asked whether "fundamental statutory
policy weighing in favor of disclosure and construing
exclusions only narrowly applies to your Opinion in
this matter." Yes, the policies of FOIA apply
to this opinion as to all other advisory opinions
from this office. However, please keep in mind that
in addition to the narrow construction rule for exemptions,
the policy statement of FOIA also provides that "no
record shall be withheld or meeting closed to the
public unless specifically made exempt pursuant to
this chapter or other specific provision of law."
As described above, this matter deals with tax code
prohibitions on the release of records outside of
FOIA, that is, other specific provisions of law.
Your
sixth inquiry asked whether "the City should
have and must now comply with the FOIA request."
By asking if the City must now comply with your FOIA
request, your inquiry inherently presumes that the
City previously failed to comply. However, as stated
above, determining whether the City complied with
your FOIA request would require knowledge of the contents
of the records that the City withheld and an interpretation
of whether § 58.1-3 prohibits the release of
those records, neither of which is within the purview
of this office. Therefore, I cannot answer this question
except to say generally that, yes, the City and all
other public bodies must comply with FOIA. We must
also recognize that public bodies must also comply
with other laws, including laws such as § 58.1-3
that prohibit the release of certain records and carry
criminal penalties, just as FOIA itself recognizes
such other provisions of law. As previously stated,
if you feel that the City has violated your rights
under FOIA by its assertion of § 58.1-3, filing
a petition for mandamus or injunction in an appropriate
court would be the statutory remedy.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1See,
e.g., AO-08-06 ("it is beyond the authority
of the FOIA Council to offer a legal interpretation
of Virginia's tax laws").
2See, e.g., AO-06-17.
3See, e.g., AO-06-14.
4Subdivision 5 of § 30-179 requires
the Council to "[a]ssist in the development and
implementation of the provisions of § 2.2-3704.1."
5See
https://www.alexandriava.gov/FOIA (last visited December
27, 2017).
6Supra,
n. 1; see also AO-2-00.
7Lawrence v. Jenkins, 258 Va. 598,
521 S.E.2d 523 (1999).
8AO-11-01.
|