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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-08-19
August
22, 2019
William
H. Turner
Onley, 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 dated July 17, 2019, facsimile
transmission dated August 20, 2019, and electronic
mail dated August 22, 2019.
Dear Dr. Turner:
You
have asked for an advisory opinion regarding four
inquiries concerning the Virginia Freedom of Information
Act (FOIA), each of which is addressed in turn below.
First,
you have asked us to opine regarding whether subdivision
13 of § 2.2-3705.1 allows a public body to withhold
the names of credit card holders. By its own terms,
that exemption allows a public body to withhold "[a]ccount
numbers or routing information for any credit card,
debit card, or other account with a financial institution
of any person or public body." The exemption
is silent regarding the names of credit card holders.
Subsection B of § 2.2-3700 states that "all
public records shall be available for inspection and
copying upon request ... and no record shall be withheld
... unless specifically made exempt pursuant to this
chapter or other specific provision of law."
The same subsection also directs that "[a]ny
exemption from public access to records or meetings
shall be narrowly construed." Applying this policy
to your inquiry, subdivision 13 of § 2.2-3705.1
does not provide an exemption for the names of credit
card holders, only for certain account numbers and
routing information. Therefore, records containing
the names of credit card holders must be disclosed
upon request unless some other exemption or prohibition
applies.
Second,
you asked, "In an expedited hearing can this
be filed in a district court?" The statutory
remedy for a FOIA violation is to file a petition
for mandamus or injunction supported by an affidavit
showing good cause pursuant to § 2.2-3713. Subdivisions
A 1, A 2, and A 3 of that section set forth the appropriate
venue for such a petition depending on whether the
responding public body is of local, regional, or state
character. Each subdivision gives the petitioner the
option of filing in general district court or circuit
court. Subsection C provides for an expedited hearing
on FOIA petitions:
Notwithstanding
the provisions of § 8.01-644, the petition
for mandamus or injunction shall be heard within
seven days of the date when the same is made, provided
the party against whom the petition is brought has
received a copy of the petition at least three working
days prior to filing. However, if the petition or
the affidavit supporting the petition for mandamus
or injunction alleges violations of the open meetings
requirements of this chapter, the three-day notice
to the party against whom the petition is brought
shall not be required. The hearing on any petition
made outside of the regular terms of the circuit
court of a locality that is included in a judicial
circuit with another locality or localities shall
be given precedence on the docket of such court
over all cases that are not otherwise given precedence
by law.
These
timing provisions do not set forth different timing
provisions for filing the petition in general district
court versus filing in circuit court. Reading all
of these provisions together, the petitioner may choose
to file in either general district court or circuit
court, and the expedited timing provisions apply regardless
of which court the petitioner chooses.
Third,
you asked whether "a requester for [a] FOIA document
[may] file a complaint if he feels he is being overcharged."
Subsection F of § 2.2-3704 provides that public
bodies may charge for producing public records within
certain limits:
A
public body may make reasonable charges not to exceed
its actual cost incurred in accessing, duplicating,
supplying, or searching for the requested records.
No public body shall impose any extraneous, intermediary,
or surplus fees or expenses to recoup the general
costs associated with creating or maintaining records
or transacting the general business of the public
body. Any duplicating fee charged by a public body
shall not exceed the actual cost of duplication.
The public body may also make a reasonable charge
for the cost incurred in supplying records produced
from a geographic information system at the request
of anyone other than the owner of the land that
is the subject of the request. However, such charges
shall not exceed the actual cost to the public body
in supplying such records, except that the public
body may charge, on a pro rata per acre basis, for
the cost of creating topographical maps developed
by the public body, for such maps or portions thereof,
which encompass a contiguous area greater than 50
acres. All charges for the supplying of requested
records shall be estimated in advance at the request
of the citizen.
As
stated above, the statutory remedy for a FOIA violation
set out in § 2.2-3713 is to file a petition for
mandamus or injunction supported by an affidavit showing
good cause. Specifically, subsection A of that section
provides that "[a]ny person ... denied the rights
and privileges conferred by this chapter may proceed
to enforce such rights and privileges by filing a
petition for mandamus or injunction, supported by
an affidavit showing good cause." Therefore,
a requester may file a petition for mandamus or injunction
if he feels that a public body has violated the statutory
limits on charges.
Fourth,
you inquire as to whether "an official opinion
of the FOIA [may] be called hearsay by the court"
and whether such an opinion would be considered expert
testimony. Generally, this office has no authority
to advise regarding evidentiary matters as our statutory
authority under § 30-179 is limited to FOIA.
For that reason, you may wish to consult your own
attorney regarding whether any particular item is
hearsay or not. However, I would note that as of July
1, 2019, new § 2.2-3715 provides as follows:
Any
officer, employee, or member of a public body who
is alleged to have committed a willful and knowing
violation pursuant to § 2.2-3714 shall have
the right to introduce at any proceeding a copy
of a relevant advisory opinion issued pursuant to
§ 30-179 as evidence that he did not willfully
and knowingly commit the violation if the alleged
violation resulted from his good faith reliance
on the advisory opinion.
Regarding
whether opinions of this office may be considered
expert testimony, I would direct your attention to
the litigation policy of the FOIA Council where it
states as follows:
The
Executive Director of the Council will not accept
a request by a citizen, public official, or reporter
to testify as an expert witness in any lawsuit involving
FOIA issues. If subpoenaed to testify by either
party, the Council delegates authority to the Executive
Director to file, in his discretion, a motion to
quash the subpoena.1
Thank
you for contacting this office. We hope that we have
been of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
Ashley
Binns
Staff Attorney
1The
litigation policy of the FOIA Council may be viewed
in full at http://foiacouncil.dls.virginia.gov/litigation.pdf. |