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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-20
May
25, 2020
Julie
Grimes
Via Email
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 from February
and March 2020, and my conversations with staff of
the Office of the State Inspector General in March
2020.
Dear
Ms.Grimes:
You have asked for an advisory opinion regarding a
response you received from the Office of the State
Inspector General (OSIG) for certain case reports.
In February 2020, you asked for three final reports
from specific cases based on investigations initiated
through a call to the State Fraud, Waste and Abuse
Hotline. All of the investigations concerned the Virginia
Department of Education (VDOE). The initial response
from OSIG appears to have been to provide redacted
copies of two of the reports and a redacted summary
of the third report, copies of which were attached
to your email messages. The response cited subdivision
7 of § 2.2-3705.3 of the Code of Virginia as
the legal basis for all of the redactions. The redacted
summary of the third report stated that it was "provided
after the completion of a more detailed official investigative
report submitted to you [OSIG]1 on February 13, 2020."
You stated that, based on your experience as the former
FOIA officer for OSIG, you were surprised that you
received a redacted summary of the third report rather
than a redacted copy of the final report itself. You
replied to OSIG by submitting a revised request for
"the final redacted Hotline investigative report
regarding the Virginia Department of Education involving
substantiated allegations of waste, fraud and abuse
completed in calendar year 2020." You then contacted
this office about this matter and expressed particular
concern regarding the duty to redact public records
expressed in § 2.2-3704.01. With your agreement,
I contacted staff at OSIG who indicated she would
speak with others within the agency then get back
to you directly. You provided a copy of the second
response from OSIG, which reads as follows: "Based
on guidance from counsel, please be advised OSIG has
no further responsive records to your request, FOIA
2020-078 Department of Education Hotline Case Reports
17976, 17891 and 18047. OSIG remains steadfast in
that what we have provided you is sufficient for your
FOIA request, and is consistent and in compliance
with Code of Virginia § 2.2-3705.3 [7]."
You then followed up on your initial request to this
office for a written advisory opinion regarding whether
OSIG was in compliance with FOIA when it provided
a redacted summary rather than a redacted version
of the final report.
Applicable
law
The general policy of FOIA 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." With regard to exemptions, the policy
further specifies that "[a]ny 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." The policy also provides the following
direction: "All public bodies and their officers
and employees shall make reasonable efforts to reach
an agreement with a requester concerning the production
of the records requested."
When replying to a records request, subsection B of
§ 2.2-3704 provides five responses, one of which
must be sent within five working days of receiving
the request: (1) provide the records, (2) deny the
request in its entirety, (3) provide some portion
of the requested records while withholding the rest,
(4) state that the records cannot be found or do not
exist, or (5) invoke an additional seven work days
to respond. If records are withheld in whole or in
part, the public body "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." Regarding redaction,
§ 2.2-3704.01 provides in full as follows:
No provision of this chapter is intended, nor shall
it be construed or applied, to authorize a public
body to withhold a public record in its entirety
on the grounds that some portion of the public record
is excluded from disclosure by this chapter or by
any other provision of law. A public record may
be withheld from disclosure in its entirety only
to the extent that an exclusion from disclosure
under this chapter or other provision of law applies
to the entire content of the public record. Otherwise,
only those portions of the public record containing
information subject to an exclusion under this chapter
or other provision of law may be withheld, and all
portions of the public record that are not so excluded
shall be disclosed.
The
specific exemption cited in this instance was subdivision
7 of § 2.2-3705.3, which provides in relevant
part a discretionary exemption from mandatory disclosure
for the following:
Investigative
notes, correspondence and information furnished
in confidence, and records otherwise exempted by
this chapter or any Virginia statute, provided to
or produced by or for . . . (iv) the Office of the
State Inspector General with respect to an investigation
initiated through the Fraud, Waste and Abuse Hotline
or an investigation initiated pursuant to Chapter
3.2 (§ 2.2-307 et seq.) . . .. Information
contained in completed investigations shall be disclosed
in a form that does not reveal the identity of the
complainants or persons supplying information to
investigators. Unless disclosure is excluded by
this subdivision, the information disclosed shall
include the agency involved, the identity of the
person who is the subject of the complaint, the
nature of the complaint, and the actions taken to
resolve the complaint. If an investigation does
not lead to corrective action, the identity of the
person who is the subject of the complaint may be
released only with the consent of the subject person.
Local governing bodies shall adopt guidelines to
govern the disclosure required by this subdivision.
Regarding
the creation of new records, subsection D of §
2.2-3704 provides that "[s]ubject to the provisions
of subsection G, no public body shall be required
to create a new record if the record does not already
exist. However, a public body may abstract or summarize
information under such terms and conditions as agreed
between the requester and the public body."2
Analysis
From the initial facts provided, it appears that OSIG
had three reports that you requested, and while it
provided redacted copies of two of those reports,
it provided a redacted summary of the third report
rather than providing a redacted copy of the full
report. There is no indication that OSIG discussed
with you the option of providing a redacted summary
rather than the third full report, and in any case,
you specifically followed up by asking for the full
report. In considering previous situations where a
public body created new records in order to respond
to a request without first reaching an agreement with
the requester, we opined that "if a public body
decides to create a new record in response to a request,
and would like to charge the requester for the time
spent in creating that record, it must first consult
with the requester to reach agreement as to the charges."3
In that situation, the public body argued that it
had to create a spreadsheet showing salary records
because FOIA requires salary information to be disclosed
and the public body did not already have a record
responsive to the request. In that instance, the dispute
was over the charges, as the requester had not agreed
to pay for the creation of a new record and so we
opined that the public body could not charge for it
absent such an agreement. In the facts presented here,
it appears that the final report already existed when
you made your request, so it is unclear why OSIG made
a summary of it rather than providing you with a redacted
copy as it did with the other two reports, and there
does not appear to be a dispute over charges. In a
situation where a public body wishes to create a new
record in order to respond to a request, does so within
the required five working days response time set out
in subsection B of § 2.2-3704, and does not charge
the requester, there is nothing wrong with creating
a new record. However, creating a new record—even
if done on time and for free—does not remove a public
body's responsibility to provide other existing public
records that are not exempt from disclosure unless
the requester agrees to accept the new record in place
of the other existing public records. As there was
no such agreement here, based on the facts as you
presented them, it would appear that OSIG's decision
to provide you with a redacted summary in place of
the final report (which we presume would also be redacted
pursuant to the same exemption, as discussed below)
is not in compliance with FOIA's general requirements
to provide existing public records.
Turning to the redactions that were made in the records
you were provided, you do not argue that subdivision
7 of § 2.2-3705.3 does not apply or that it was
used improperly regarding the redacted records you
received. Instead, your assertion would be that the
exemption was improperly used to withhold the third
final report in its entirety, rather than by providing
a redacted copy of that full report. You first pointed
out your concern that OSIG was ignoring the provisions
of § 2.2-3704.01, which provides among other
things that "[a] public record may be withheld
from disclosure in its entirety only to the extent
that an exclusion from disclosure under this chapter
or other provision of law applies to the entire content
of the public record." Additionally, you included
correspondence you had with Megan Rhyne, Executive
Director of the Virginia Coalition for Open Government,
in which Ms. Rhyne pointed out that the cited exemption
itself states that "[i]nformation contained in
completed investigations shall be disclosed in a form
that does not reveal the identity of the complainants
or persons supplying information to investigators,"
thus setting out the rule to provide redacted copies
of records of completed investigations rather than
providing that such records be withheld entirely.
Reading all of the foregoing provisions together,
it is clear that when an investigation subject to
subdivision 7 of § 2.2-3705.3 has been completed
and a final report has been created, that report must
be produced in response to a valid FOIA request, but
may be redacted as set forth in the exemption. Therefore,
it again appears that based on the facts you presented,
OSIG should have produced a redacted copy of the third
final report in response to your request.
However,
note the exact language of OSIG's second reply stating
that "OSIG has no further responsive records
to your request." As stated above, the redacted
summary report that was given to you indicated that
it was "provided after the completion of a more
detailed official investigative report submitted to
[OSIG] on February 13, 2020." These two statements
appear to be contradictory in that the first appears
to be saying that OSIG only has the summary version
of the third final report, and therefore does not
have a copy of the full report to give to you, while
the second statement, taken from the summary itself,
appears to indicate that OSIG does have a copy of
the full final report. Unfortunately, these statements
thus present a question of fact that cannot be resolved
by this office: Does OSIG actually have the full final
report? If it does, then FOIA would require that OSIG
provide to you a copy of that report in response to
your request, although it may be redacted as appropriate.
However, if OSIG does not have a copy, then it would
not be responsible to provide you with a copy of a
record of which it is not the custodian, but pursuant
to subdivision B 3 of § 2.2-3704, it should have
clearly stated that it does not have the record and
given you contact information if it knew that another
public body had the record.4
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
1Note
that the name of the recipient of the redacted summary
was one of the items redacted, but the summary report
was sent to OSIG from VDOE. Of the other two final
reports, one was also a report apparently from VDOE
sent to OSIG that was similarly redacted regarding
the name of the recipient. The other appears to be
a report from OSIG sent to the Secretary of Education
(whose name was not redacted).
2Subsection G of § 2.2-3704 concerns
electronic records and is not at issue for purposes
of this opinion.
3Freedom of Information Advisory Opinion
04 (2015) (quoting Freedom of Information Advisory
Opinion 04 (2004)).
4Subdivision B 3 of § 2.2-3704 provides
for the following response: "The requested records
could not be found or do not exist. However, if the
public body that received the request knows that another
public body has the requested records, the response
shall include contact information for the other public
body." In this instance, the summary report was
sent on VDOE letterhead, so it would follow that if
OSIG did not have the full report, VDOE would likely
have it. |