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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-09-18
October
23, 2018
A.
Reese Peck
Center Cross, 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 messages dated August
1 and 8, 2018.
Dear
Mr. Peck:
You have asked for a formal advisory opinion regarding
a request for records you made to Essex County (the
County) pursuant to the Virginia Freedom of Information
Act (FOIA). As part of your request for a formal advisory
opinion, you provided emails between yourself and
the County regarding your request for records, as
well as a detailed timeline of the events surrounding
the request for records. I will respond to your request
in two parts. The first part will include a factual
background based on the information you provided and
will address your questions related to how the County
responded to your request. The second part will address
your more general questions regarding FOIA.
Topic
Area 1: The County's Responses to Your Request for
Records
Questions Presented
You have asked (i) whether the responses provided
by the County on February 28, March 6, March 12, and
March 16, 2018, were in compliance with the requirements
of FOIA and (ii) if correspondence, including email,
that otherwise is open to public inspection can be
deemed exempt from mandatory disclosure solely by
being viewed in a closed meeting or reviewed by a
public body's attorneys.
Factual Background
In December 2017 and January 2018, the Essex County
Board of Supervisors (the Board) held several closed
meetings to discuss a packet of emails and correspondence
between the Essex County Economic Development Director
(the Director) and members of the public. On February
22, 2018, you requested, via email, that the County
provide you with a digital copy of all emails to or
from the Director that were given to the Board during
the months of November 2017 through February 2018.
The County responded on February 28, 2018, by stating,
"It is not possible to collect the requested
records within 5 working days, will provide to you
within the prescribed statutory period." You
replied the same day to the County's email by asking
for the reason why the extension was needed.
After speaking with the Director about clarification
regarding your request, you emailed the County again
on March 1, 2018, and stated, "I am asking for
the result of the email search that was done on [the
Director's] past emails that were in turn given to
the [Board] during the time frame listed in my original
request. Of particular interest are emails either
to or from me." On March 6, 2018, the County
sent you an email stating, "Additional time is
required due to the outreach to multiple persons as
potential holders of records applicable to your request,
and the time required to receive, compile, and forward
to you as the requester." This email seems to
have been a direct reply to your February 28, 2018,
email requesting clarification as to why the County
needed an extension to your original request, but,
given the timeline, it is also possible that the County
meant it as a response to your March 1, 2018, email
(which it views as your second request as discussed
below). You responded to the March 6, 2018, email
by reiterating your message sent by email on March
1, 2018.
On March 12, 2018, the County sent you an email providing
the records requested on February 22, 2018, and outlining
the cost of three hours of research time. You responded
to the County by stating that the records provided
were not responsive to your request and clarifications
on March 1 and March 6, 2018. The County responded
on March 16, 2018, by stating that the request made
on March 1 and March 6 was materially different from
the request made on February 22, 2018. Additionally,
the County stated that the information requested on
March 1 and March 6 is excluded from mandatory disclosure
pursuant to the exemption for attorney-client privilege
and the exemption for work product compiled for investigation
subject to closed meeting.1
Applicable Law and Discussion
1. Timing and Format of a Response to Records
We will first examine whether the time limits and
general format of the responses made by the County
comply with FOIA. FOIA states in § 2.2-3704 of
the Code of Virginia that a public body must respond
to a request for records within five working days
of receipt of the request. In responding, the public
body must either provide the records requested or
give one of the following four responses in writing:
(a) that the records are being entirely withheld,
providing the volume and subject matter of the records
being withheld as well as the specific Code section
that authorizes the withholding; (b) that the requested
records are being provided in part and are being withheld
in part, providing the subject matter of the records
being withheld as well as the specific Code sections
that authorize the withholding; (c) that the requested
records could not be found or do not exist; or (d)
that it is not possible to complete the request within
the five-working-days period, specifying the conditions
that make the response impossible, and that the public
body invokes an additional seven working days to provide
one of the responses.
It appears from the given facts that the County received
your initial request on the same day you sent it,
which was Thursday, February 22, 2018. As previously
opined by this office, the five-working-days period
begins the day following receipt of the request and
the working days do not include weekends or legal
holidays.2 Therefore, Friday, February
23, 2018, was the first day of the five working days,
and the last day for the County to provide a response
would have been Thursday, March 1, 2018. The County
provided a response on Wednesday, February 28, 2018,
within the five-working-days requirement. It also
provided a response by invoking the additional seven
working days to complete the request, but did not
"specify the conditions that make a response
impossible" pursuant to subdivision A 4 of §
2.2-3704. While there is nothing in the given facts
indicating that it was improper for the County to
invoke the extension, the response on February 28,
2018, was required to specify the reason why the extension
was needed. The email from the County dated March
6, 2018, could possibly be the reason for the extension,
but it is unclear if this email applies to the February
22, 2018, request or your email on March 1, 2018.
Even if it does apply to the initial request, the
reason for the need for the extension was required
to be included in the original response within the
initial five-working-days response requirement of
March 1, 2018. On the basis of the given facts, the
extension was not properly invoked and the public
body would be in violation of FOIA since the records
or other appropriate response was not provided within
the initial five working days. Despite that violation,
we will continue the analysis as if the extension
were properly invoked in order to examine the rest
of the timeline.
The email from the County on March 12, 2018, seemingly
included records that the County contends are in response
to your request of February 22, 2018. If the extension
were properly invoked, the last day for the County
to provide a response would have been March 12, 2018.
The response would therefore have been timely and
a proper response pursuant to subdivision B of §
2.2-3704 but for the failure to properly state the
need for the time extension. If there is a factual
dispute about whether the records provided were proper,
a court of law is the appropriate place to make any
necessary determinations of fact.
You stated that the March 1 and March 6 emails you
sent to the County were only clarifying the original
request, while the County contends that they were
a second distinct request. In your first request on
February 22, 2018, you requested a copy of emails
from or to the Director that were provided to the
Board. In the March 1 and March 6, 2018, emails, you
requested the results of an email search conducted
on the Director's past emails that were then given
to the Board. Because of the difference in wording
used in each request, it seems possible that they
could produce different results and therefore be separate
requests. The County would therefore have five working
days from March 1, 2018, to provide a response to
the second request. While it is unclear what the March
6, 2018, email from the County is responding to, it
is possible the County used it to invoke the seven-working-days
extension for the second request. If that is the case,
the County would have had until March 19, 2018, to
provide a response, which it appears to have done
on March 16, 2018, by stating that the records were
subject to withholding pursuant to the attorney-client
privilege and work product exemptions.
Pursuant to § 2.2-3704, if records are to be
withheld in their entirety, the public body shall
identify with reasonable particularity the volume
and subject matter of the withheld records as well
as cite the applicable exemption in the Code. It is
important to note that, under the given facts, the
County cited the incorrect Code section as §
2.2-3701 in its March 16, 2018, response. That Code
section contains the general definitions of terms
in FOIA and not the listed exemptions from mandatory
disclosure. Instead, it appears that the County meant
to cite subdivisions 2 and 3 of § 2.2-3705.1,
which clearly address the attorney-client privilege
and work product exemptions from mandatory disclosure,
respectively. Since they are discretionary exemptions,
the response should include language actually stating
that the records are being withheld. The response
provided merely says that the records are subject
to the enumerated exemptions and should more clearly
explain to the requester that the records are being
withheld. Additionally, it appears the County did
not provide the volume or subject matter of the withheld
records, which would be a violation of the requirements
of FOIA.3
2. Use of the Exemptions from Mandatory Disclosure
by the County
The final issue relating to the County's responses
is whether the requested records could be withheld
pursuant to the two exemptions enumerated by the County
on March 16, 2018. Subdivision 2 of § 2.2-3705.1
allows for a public body to withhold from disclosure
written advice of legal counsel to state, regional,
or local public bodies, or the officers or employees
of such public bodies, and any other information protected
by the attorney-client privilege. In Virginia, attorney-client
privilege is governed by the principles of common
law as interpreted by the courts of the Commonwealth,
and this office has previously opined that six elements
must be present to invoke the privilege: (1) communications
from a client, (2) to the client's lawyer or lawyer's
agent, (3) relating to the lawyer's rendering of legal
advice, (4) made with the expectation of confidentiality,
(5) not in the furtherance of a future crime or tort,
and (6) absent waiver of the privilege.4 Subdivision
3 of § 2.2-3705.1 allows a public body to withhold
"[l]egal memoranda and other work product compiled
specifically for use in litigation or for use in an
active administrative investigation concerning a matter
that is properly the subject of a closed meeting under
§ 2.2-3711."5
On
March 1 and March 6, 2018, you requested the results
of the email search that was done on the Director's
past emails that were then given to the Board, including
emails to or from you. You stated that the emails
were between members of the public and the Director,
meaning they would not, by themselves, be subject
to the exemptions used by the County. It would appear
that the emails would not include advice from an attorney
or include any other attorney-client privileged information,
considering that they are between citizens and the
Director with no inclusion of legal counsel. Assuming
that is the case, the emails themselves would likely
not fall under the exemption under subdivision 2 of
§ 2.2-3705.1. Additionally, on the basis of the
given information, it does not appear that these emails
would be likely to qualify as legal memoranda or work
product compiled for use in litigation or an active
administrative investigation since they are between
citizens and the Director and do not appear to be
created for those purposes. Furthermore, the mere
fact that records otherwise open to inspection are
viewed by an attorney or in a closed meeting does
not mean that the records would be subject to either
of these exemptions. However, in the March 1, 2018,
and March 6, 2018, emails you asked for the search
that was done on the emails that were then given to
the Board. It is possible that such a search and the
records compiled as a result of the search and turned
over to the Board would be different than the emails.
For example, if an attorney designated particular
emails or portions of emails and included them in
a document that detailed the legal ramifications of
such information, that could potentially be viewed
by a court as legal memoranda or work product. Without
more information on the exact records the County has
and what format they are in, we are unable to determine
if they would qualify for the exemptions. Ultimately
a court of law would be the appropriate body to determine
a factual dispute as to whether the records were properly
withheld pursuant to the exemptions.
Conclusion
Public bodies have five working days from receipt
of a request for records to provide a response. A
proper response would be to provide the records or
one of the following four responses in writing: (A)
that the records are being entirely withheld, providing
the volume and subject matter of the records being
withheld as well as the specific Code section that
authorizes the withholding; (B) that the requested
records are being provided in part and are being withheld
in part, providing the subject matter of the records
being withheld as well as the specific code sections
that authorize the withholding; (C) that the requested
records could not be found or do not exist; or (D)
that it is not possible to complete the request within
the five-working-days period, specifying the conditions
that make the response impossible, and that the public
body requests an additional seven working days to
provide one of the responses.
On the basis of the given facts, it appears that the
County did not properly state a reason for the requested
time extension beyond the initial five working days.
If the County had properly identified the need for
the extension, then the response would have been timely
and appropriate, since the records were provided.
If there is a dispute about the records provided,
a court of law would be the appropriate place to make
any necessary determinations of fact. In relation
to the second response from the County on March 16,
2018, on the basis of the given facts, it appears
that the County did not state that records were actually
being withheld and did not identify with reasonable
particularity the volume and subject matter of the
withheld records. If true, that would be a violation
of the requirements of FOIA.
Correspondence, including emails, that are otherwise
open to inspection under FOIA would not automatically
fall under the attorney-client privilege and work
product exemptions from mandatory disclosure solely
because they were viewed by an attorney or in a closed
meeting. Your request of March 1 and March 6, 2018,
however, was for a search that was conducted on certain
emails that was then provided to the Board. It is
possible that such a request would result in records
that do fall under those two exemptions depending
on how the information was compiled and given to the
County. Ultimately we do not have enough information
before us to say for certain, and if there is a factual
dispute regarding what the records contain, a court
of law would be the appropriate body to make that
determination. In that instance, the County would
bear the burden of proof by a preponderance of the
evidence to establish the exemption.6
Topic
Area II: General Questions about FOIA
1. Who has the responsibility to clarify an ambiguity
of the substance of a request for public records?
FOIA
requires requesters to identify requested records
with reasonable specificity pursuant to subsection
B of § 2.2-3704. As previously opined by this
office, 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. Responsibility
for clarification therefore depends on the specific
factual situation. Initially, the duty is on the requester
to provide reasonable specificity of what records
are sought. If clarification is needed after that,
then the public body should follow up with questions
for the requester. The issue, however, is that a public
body may not always view a request as ambiguous and
may proceed with fulfilling a request for records
that is not necessarily what the requester intended.
In such a case, it would be up to the requester to
provide further clarification, since the public body
may be unaware that it did not understand the request.
Ultimately, both the requester and a public should
work to clarify any ambiguities with clear and concise
communication.7
2.
Can public bodies or individuals be fined for willful
violations of FOIA?
Pursuant to § 2.2-3713, individuals may petition
a court alleging a denial of the rights and privileges
provided under FOIA. If a court finds that the rights
and privileges provided under FOIA have been violated,
the petitioner may be entitled to recover reasonable
costs, including costs and fees for expert witnesses,
and attorney fees from the public body.
Additionally, § 2.2-3714 allows a court to impose
a civil penalty paid to the State Literary Fund of
at least $500 but not more than $2,000 on an officer,
employee, or member of a public body in his individual
capacity, if the court finds that such officer, employee,
or member made a willful and knowing violation of
FOIA. For a second or subsequent violation, a court
shall impose a civil penalty of not less than $2,000
nor more than $5,000. It would therefore be up to
a court to make a factual determination and decide
the appropriate remedy.
3. May a public body assess charges for a FOIA
request for documents that are legally exempted and
not provided?
FOIA states in subsection F of § 2.2-3704 that
a public body may make reasonable charges incurred
in accessing, duplicating, supplying, or searching
for the requested records. Therefore, a public body
can charge a reasonable fee even if it is only for
searching for or accessing the records. It is possible
that it could take time and resources for a public
body to locate and review records in order to make
an initial determination that they are subject to
an exemption from mandatory disclosure. FOIA provides
for this by allowing public bodies to charge fees
for searching and accessing requested records. It
is important to note, though, that the charges must
be reasonable and not exceed the actual cost incurred.
If there is a factual dispute over the charges, a
court of law would be the appropriate place to make
any factual determination. As a best practice, if
a public body expects to incur costs while accessing
or searching for records that the public body knows
are exempt and will be withheld, the public body should
inform the requester beforehand of those facts, so
that the requester may decide whether to proceed.
4. What remedies does a citizen have if a public
body refuses to release records due to a disputed
FOIA reproduction charge?
FOIA states in subsection I of § 2.2-3704 that
a public body may require the requester to pay any
amounts owed to the public body for previous requests
for records that remain unpaid 30 days or more after
billing, before processing another request for records.
Therefore, if amounts for previous requests remain
unpaid 30 days or more after billing because of a
dispute, the public body may elect to not process
a further request until the previous amount is paid.
If there is a dispute about charges or a public body's
response to a request, an individual may petition
a court for relief pursuant to § 2.2-3713, and
the court would make a factual determination regarding
the charges and the response.
Thank you for contacting this office. We hope that
we have been of assistance.
Sincerely,
Chad
M. Ayers
Attorney
Alan
Gernhardt
Executive Director
1Subdivisions
2 and 3 of § 2.2-3705.1 of the Code of Virginia.
2Freedom of Information Advisory Opinions
06 (2014), 01 (2009), 02 (2008), and 08 (2007).
3It is important to note that the Supreme
Court of Virginia has previously found that failure
to identify the specific Code section of an exemption
does not bring about a denial of rights or privileges
afforded to the requester if the records could in
fact be withheld. See Lawrence v. Jenkins,
258 Va. 598 (1999) (finding that a writ of mandamus
was not an appropriate remedy).
4See Freedom of Information Advisory
Opinions 06 (2018), 04 (2011), and 25 (2003) (examining
the requirements of the attorney-client privilege
exemption from mandatory disclosure in various contexts).
5See
Freedom
of Information Advisory Opinion 25 (2003) (discussing
the work product doctrine).
6See
subsection E of § 2.2-3713 (stating, "In
any action to enforce the provisions of this chapter,
the public body shall bear the burden of proof to
establish an exclusion by a preponderance of the evidence").
7See, e.g., Freedom of Information
Advisory Opinions 16 (2004), 03 (2008), and 07 (2008).
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