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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-23
July
21, 2023
David
Kinder
Pulaski County, 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 message and attachments
from December 14 and December 28, 2022.
Dear
Mr. Kinder:
You have submitted four questions regarding whether
the Town of Dublin has correctly claimed subsection
D of § 15.2-2907 of the Code of Virginia as the
basis for denying access to certain records you requested
from the Town.
Factual Background
As background, you provided several pieces of correspondence
sent between you and the town attorney, who also serves
as the Freedom of Information Act (FOIA) officer for
the Town, two announcements published in the local
newspaper, and a screenshot of the Town's website.
The first announcement, which appeared in the local
newspaper, The Patriot, on September 14,
2022, stated that the town council "has developed
a plan for a jurisdictional boundary adjustment and
settlement with Pulaski County, which plan [sic] will
enable the Town of Dublin to extend its boundaries
and thus better serve the residents and businesses
within the proposed adjusted boundaries." Subsequently,
on the next day, September 15, 2022, another announcement
appeared in The Patriot that stated that
the town council "has elected to discontinue
its recently announced plans to seek a consensual
boundary line adjustment agreement with the County
of Pulaski." Additionally, the press release
issued by the Town on September 15, 2022, stated that:
"The previously announced public information
sessions of the town council [of Dublin] regarding
such potential agreement have been cancelled."
On November 2, 2022, you submitted to the town attorney
a request for the following seven specific items of
information under Virginia FOIA:
1. All correspondence between Town of Dublin officials
(including but not limited to Mayor, Town Council
members, Town Manager, Town Attorney, Town Employees,
or contracted staff) and County of Pulaski officials
(including but not limited to County Administrator,
Board of Supervisors, County Attorney, County Employees,
or contracted staff) regarding the previously proposed
'Consensual Boundary Line Adjustment between the
Town of Dublin and the County of Pulaski.'
2. All correspondence between Town of Dublin officials
(including but not limited to Mayor, Town Council
members, Town Manager, Town Attorney, Town Employees,
or contracted staff) and the Commonwealth of Virginia
Department of Housing and Community Development
regarding the previously proposed 'Consensual Boundary
Line Adjustment between the Town of Dublin and the
County of Pulaski.'
3. All prepared materials created to support the
proposed public information sessions previously
scheduled for 09/20/2022, 09/21/2022, and 09/22/2022
before they were cancelled on 09/15/2022.
4. Invoices, bills, or equivalent paid by the Town
of Dublin to the County of Pulaski (or possibly
directly to the Pulaski County Public Service Authority
(PSA)) regarding the monthly purchase of water and/or
sewer services for the previous 24 months.
5. Invoices, bills, or equivalent issued by the
Town of Dublin to the consumers of water and/or
sewer services provided by the Town of Dublin for
the previous 24 months. I understand this information
may need to be sanitized or redacted for privacy.
If this information cannot be shared, an aggregated
summary will be an acceptable alternative, provided
it includes the following data points at a minimum:
a. Monthly total of water gallons used by residential
consumers classified as 'in town*' and number
of distinct consumers in this category, and
b. Monthly total of water gallons used by residential
consumers classified as 'out of town*' and number
of distinct consumers in this category, and
c. Monthly total of water gallons used by commercial
consumers classified as 'in town*' and number
of distinct consumers in this category, and
d. Monthly total of water gallons used by commercial
consumers classified as 'out of town*' and number
of distinct consumers in this category, and
e. Monthly total of water gallons used by industrial
consumers classified as 'in town*' and number
of distinct consumers in this category, and
f. Monthly total of water gallons used by industrial
consumers classified as 'out of town*' and number
of distinct consumers in this category, and
g. Monthly total of consumers who were billed
the 'infrastructure rehabilitation fee' (whether
residential, commercial, or industrial).
*All classifications per the Town of Dublin's
definitions for billing purposes
6. Detailed description and dates of work-orders
(or equivalent) completed by the Town of Dublin
in the previous 24 months, specifically regarding
maintenance, improvements, and repairs to waterlines
and/or associated infrastructure owned and/or operated
by the Town of Dublin.
7. All records indicating names and dates of completion
of the required FOIA training for each elected official,
constitutional officer, and FOIA officer of the
Town of Dublin, dating back to the minimum retention
period of 5 years.
The town attorney responded in a letter dated November
10, 2022, asserting that responses to your requests
nos. 1, 2, and 3 were being withheld on the following
basis:
[p]ursuant to the express provisions of Virginia
Code § 15.2-2907.D, all correspondence among
the involved parties and personnel regarding the
previously proposed 'Consensual Boundary Line Agreement
between the Town of Dublin and the County of Pulaski'
are exempt/excluded from the Virginia Freedom of
Information Act, as the formerly contemplated boundary
line adjustment fell under the jurisdiction of the
Commission on Local Government ('CLG'), even though
neither the Town of Dublin nor the County of Pulaski
made any formal submission to CLG before the Town
elected to terminate the action.
This letter stated that the records responsive to
your request no. 4 were provided and enclosed within.
In regards to your request no. 5, the town attorney
requested additional time to compile records applicable
to "this voluminous records request," and
pursuant to subsection H of § 2.2-3704, notified
you that the cost to fulfill this request would likely
exceed the statutory threshold of $200. Furthermore,
the town attorney made suggestions to limit, at least
initially, the period of time covered by the requested
records. Regarding your request no. 6, the town attorney
notified you that the "requested documentation
is being compiled, but will take additional time due
to the long time period of the request." As for
your request no. 7, the town attorney stated that
the "provisions of Virginia Code § 2.2-3704.3
regarding FOIA training did not take effect, by express
provision of the act creating that section, until
July 1, 2020; therefore, at most only 2 years records
regarding 'training of elected local officials' would
be available." The letter stated that a copy
of the FOIA training records of the town council for
2020 were enclosed within. The town attorney informed
you that all members of the town council were scheduled
to receive their biennial FOIA training on November
17, 2022, which he would conduct, and he invited you
to attend.
On November 14, 2022, you sent a letter to the town
attorney expressing your disagreement to the cited
exemption and use of subsection D of § 15.2-2907
for not releasing the records responsive to your requests
nos. 1, 2, and 3. You acknowledged that you would
accept the town attorney's recommendation to limit
the period of time covered by the records requested
in your requests nos. 5 and 6 and requested information
on how to make the down payment deposit of $200 since
it was estimated your requests would exceed that threshold.
Moreover, you made several claims that the town council
had failed to comply with FOIA requirements to publish
a statement of rights and responsibilities pursuant
to § 2.2-3704.1 and to publish meeting notices
pursuant to subsection C of § 2.2-3707.
In your letter dated December 6, 2022, you wrote the
town attorney following up on the status of the requests
you had submitted as, according to your calculations,
the response deadline had expired. You continued to
express your position and dispute the use of the exemptions
cited by the town attorney for not releasing the records
requested in your requests nos. 1, 2, and 3. You requested
information again on how to submit the down payment
deposit of $200 as required.
On December 9, 2022, the town attorney sent you a
letter that asserted that his "denial of your
initial and subsequent requests, as fully exempt from
disclosure/production pursuant to Virginia Code §
15.2-2907.D, remains/stands." Moreover, he stated
that "[c]orrespondence and materials arising
from and/or pertaining in any way to to [sic] 'meetings',
which term includes any and all considerations, deliberations,
[and] discussions of the subject are inextricable
from meetings."
The town attorney further stated that "any and
all communications not made in an open session of
a 'governing body' by that municipality's attorney
to or concerning his client and the client's matters,
together with the attorney's work product for/concerning
such client, are exempt/excluded from FOIA and thus
disclosure pursuant to Virginia Code § 2.2-3705.1.2
and, more importantly and broadly, by the common law
doctrine of attorney-client privilege."
On
December 13, 2022, you sent a letter to the town attorney
stating "[t]hat letter (dated 06 DEC 2022) may
be disregarded since you have now responded. Please
allow today's letter (dated 13 DEC 2022) to serve
as my latest correspondence." In this letter,
you continued to dispute the use of the cited exemption
of subsection D of § 15.2-2907 and the application
of attorney-client privilege and work product exemptions
regarding the denial to release the requested records.
Furthermore, you expressed displeasure at the inability
to make FOIA requests via "a digital communications
route" and to receive the requested documents
in an electronic format.
On
December 22, 2022, the town attorney sent a letter
reaffirming his position that your requests nos. 1,
2, and 3 "remain denied on the grounds previously,
fully, and correctly stated." In regards to your
requests nos. 5 and 6, the town attorney stated that
"after your initial request for 2 years of information,
you subsequently agreed to an initial submission of
only 2 months' worth." He informed you that "Town
personnel prepared 2 years' worth, on a month by month
basis, anyway, thus the number of pages/size of stack
and the total cost therefor. If you still will accept
only 2 months' worth, then please so advise, and specify
the months that you want; July 2020 through June,
2022 [sic] are presently available." He further
informed you that "[a]s to cost, for 2 months
of information, 1/12 of $996.47, i.e., $83.04, seems
appropriate. If you desire additional months, then
the cost for each month will be $41.52." The
town attorney did not address the availability of
providing the requested records in an electronic format.
Questions Presented
You have submitted the following four questions to
this office:
Question No. 1
Regarding your requests nos. 1, 2, and 3, you have
asked: "Is the Town of Dublin correctly claiming
an exemption under VA Code § 15.2-2907(D) for
the records I'm requesting?"
Subsection D of § 15.2-2907 states that:
Except for any hearing or meeting specifically required
by law, Chapter 37 (§ 2.2-3700 et seq.) of
Title 2.2 shall not be applicable to the Commission
nor meetings convened by members of the Commission,
its employees, or by its designated mediators with
local governing bodies or members thereof, nor shall
such chapter be applicable to meetings of local
governing bodies, or members thereof, held for purpose
of negotiating any issues which are or would be
subject to the Commission's review. Offers and statements
made in any negotiation or mediation activity conducted
under the direction of the Commission shall not
be recorded in any report issued by the Commission,
nor shall they be introduced in evidence in any
subsequent court proceeding by the Commission or
any other party.
As
stated in a prior advisory opinion that addressed
FOIA's meeting requirements in light of subsection
D of § 15.2-2907:
If this section applies, therefore, FOIA 'shall
not be applicable.' By its own terms the section
applies to meetings of local governing bodies, or
members thereof, held for purpose of negotiating
any issues which are or would be subject to the
Commission's review. It would be beyond the statutory
authority of this office to offer an opinion regarding
what matters are subject to the Commission's review.1
Note
that subdivision 4 d of § 15.2-2903 states that,
among other powers and duties, the Commission on Local
Government (the Commission) shall have the power and
duty "[t]o settle or adjust boundaries between
localities." Therefore, it would appear on its
face that a "consensual boundary line adjustment"
between the Town and the County would be a matter
that falls under the Commission's purview, and subsection
D of § 15.2-2907 would apply to this transaction.
Subsection
D of § 15.2-2907 excludes the Commission from
the operation of FOIA entirely "[e]xcept for
any hearing or meeting specifically required by law."
Therefore, on its face, the Commission is not required
to comply with FOIA in regard to public meetings,
public records, or other FOIA requirements (such as
posting a rights and responsibilities statement, designating
a FOIA officer, etc.). The first sentence of subsection
D also states that FOIA "shall not be applicable
to" certain meetings:
meetings
convened by members of the Commission, its employees,
or by its designated mediators with local governing
bodies or members thereof, nor shall such chapter
be applicable to meetings of local governing bodies,
or members thereof, held for purpose of negotiating
any issues which are or would be subject to the
Commission's review. [Emphasis added.]
However, while this provision is explicit in stating
that FOIA is inapplicable to these types of meetings,
it does not say anything on its face about access
to public records of local governing bodies or members
thereof under FOIA. With regard to records, subsection
D of § 15.2-2907 provides that "[o]ffers
and statements made in any negotiation or mediation
activity conducted under the direction of the Commission
shall not be recorded in any report issued by the
Commission, nor shall they be introduced in evidence
in any subsequent court proceeding by the Commission
or any other party."
The Supreme Court of Virginia has set out rules of
statutory construction and interpretation that "[i]n
construing statutory language, we are bound by the
plain meaning of clear and unambiguous language. Where
the General Assembly has expressed its intent in clear
and unequivocal terms, it is not the province of the
judiciary to add words to the statute or alter its
plain meaning."2 The Supreme Court of Virginia
also stated as follows:
While
in the construction of statutes the constant endeavor
of the courts is to ascertain and give effect to
the intention of the legislature, that intention
must be gathered from the words used, unless a literal
construction would involve a manifest absurdity.
Where the legislature has used words of a plain
and definite import the courts cannot put upon them
a construction which amounts to holding the legislature
did not mean what it has actually expressed. 3
Applying
these rules, it is clear on its face that the first
sentence of subsection D of § 15.2-2907 exempts
the Commission itself and certain meetings held by
others from the operation of FOIA. However, the second
sentence addressing "offers and statements"
did not mention FOIA at all but instead appears on
its face to restrict the use of these records in reports
issued by the Commission and as evidence in court
proceedings. Because the General Assembly addressed
FOIA in the first sentence, it is clear that it was
aware of FOIA's requirements when it enacted subsection
D of § 15.2-2907. It logically follows that if
the General Assembly had intended to exempt relevant
records that fell under the Commission's purview from
disclosure under FOIA, it would have chosen language
to do so explicitly. However, the plain language of
this statute does not do so, and following the maxims
of statutory construction set out by the Supreme Court
of Virginia, we cannot read a FOIA exemption to exist
where it is not evidenced by the plain language of
the statute. Therefore, it does not appear that the
records you requested in your requests nos. 1, 2,
and 3 were properly withheld pursuant to subsection
D of § 15.2-2907.
Question No. 2
Next, in regards to your requests nos. 1, 2, and 3,
you have asked: "Is the Town of Dublin correctly
claiming the records I'm requesting are 'fully exempt'
on the grounds of attorney-client privilege or attorney
work product?"
It is understood that matters come before the Commission
that generally do involve legal advice, so it is likely
that the attorney-client privilege would apply to
at least some portions of those records, if not all
of them. The Supreme Court of Virginia ruled on the
use of the attorney-client privilege in the FOIA context
in the case Bergano v. City of Virginia Beach
(2018). As stated in Bergano, "a court's
in camera review of the records constitutes
a proper method to balance the need to preserve confidentiality
of privileged materials with the statutory duty of
disclosure under VFOIA."4 As the FOIA
Council has no authority to make binding factual determinations,
to compel the production of records, or to review
them under seal, only a court can make a ruling on
whether any particular withholding is proper.5
The
attorney-client privilege is one of the oldest recognized
legal privileges in our jurisprudence system. The
use of this privilege "is governed by the principles
of common law as interpreted by the courts of the
Commonwealth."6 On previous occasions, this office
has opined that the following six elements must be
present for this privilege to be invoked legally:
communications "(i) from a client, (ii) to the
client's lawyer or lawyer's agent, (iii) relating
to the lawyer's rendering of legal advice, (iv) made
with the expectation of confidentiality, (v) not in
the furtherance of a future crime or tort, and (vi)
absent waiver of the privilege."7
As
noted "in many prior opinions, this office has
no investigative powers and is not a trier of fact",
and if there is a factual dispute about the use of
the attorney-client privilege, only a court can make
a binding determination on whether an exclusion was
utilized properly.8 The Supreme Court of Virginia previously
held that the attorney-client "privilege is an
exception to the general duty to disclose, is an obstacle
to the investigation of the truth, and should be strictly
construed."9 Furthermore, the public body bears
the burden to prove the exemption pursuant to subsection
E of § 2.2-3713, which states that: "[i]n
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."
Therefore, reading these provisions together with
the fact that the records in question are not before
us, we cannot offer any opinion on whether these records
were properly withheld as attorney-client privileged.
Question
No. 3
For your requests nos. 5 and 6, you have asked: "Is
the Town of Dublin permitted to autonomously select
the use of a specific delivery method when providing
the information I requested?"
Pursuant to subsection A of § 2.2-3704, it is
the requester's option either to inspect or to obtain
copies of requested records. Additionally, subsection
G of § 2.2-3704 provides that:
When electronic or other databases are combined
or contain exempt and nonexempt records, the public
body may provide access to the exempt records if
not otherwise prohibited by law, but shall provide
access to the nonexempt records as provided by this
chapter.
Public bodies shall produce nonexempt records maintained
in an electronic database in any tangible medium
identified by the requester, including, where the
public body has the capability, the option of posting
the records on a website or delivering the records
through an electronic mail address provided by the
requester, if that medium is used by the public
body in the regular course of business. No public
body shall be required to produce records from an
electronic database in a format not regularly used
by the public body. However, the public body
shall make reasonable efforts to provide records
in any format under such terms and conditions as
agreed between the requester and public body, including
the payment of reasonable costs. [Emphasis added].
Thus, a requester may choose either to inspect or
obtain copies of records in a specific format, but
a public body is not required to provide the records
in the requested format if it is not a format regularly
used by the public body. Therefore, the answer to
this question depends on what format(s) the Town regularly
uses for these records, and, unfortunately, as this
office does not have any specific knowledge of those
facts, we cannot provide a more specific answer.
Question No. 4
Finally, you asked the following questions: "Do
FOIA laws provide any mechanism to identify and correct
deficiencies of a public body pertaining to the 'requirements'
of FOIA itself and not necessarily relating to a specific
request or record? I understand that a writ of mandamus
is required to seek relief if a specific response
is refuted, but is that same mechanism the only remedy
to alert the governing body of their shortcomings
and force an action to bring them into compliance?"
The
FOIA Council encourages requesters and public bodies
to negotiate and collectively work toward the common
goal of providing public records at a reasonable cost
to both parties. However, it is recognized that in
some circumstances this is not entirely possible.
Virginia law provides that if a citizen's FOIA rights
have been violated, the statutory remedy available,
pursuant to § 2.2-3713, is "filing a petition
for mandamus or injunction" in either general
district or circuit court. The filing of a petition
for mandamus or injunction are "the only two
forms of relief available" under FOIA.10
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
Joe
Underwood
Senior
Attorney
1Freedom
of Information Advisory Opinion 04 (2009).
2Hawkins v. Town of South Hill,
878 S.E.2d 408, 412 (Va. 2023, 2022 Va. LEXIS 72,
Record No. 210848) (citations omitted).
3 Freedom of Information Advisory
Opinion 04 (2020) (quoting Transparent GMU v.
George Mason University, 298 Va. 222, 240-241,
835 S.E.2d 544, 553 (Va. 2019) (internal citation
omitted).
4Bergano v. City of Virginia Beach,
296 Va. 403 p.6, 821 S.E.2d 319, 2018 Va. LEXIS 177,
2018 WL 6380709 (2018).
5Freedom of Information Advisory Opinion
09 (2005).
6Freedom of Information Advisory Opinion
06 (2018).
7Freedom of Information Advisory Opinions
25 (2003), 04 (2011), and 06 (2018).
8Freedom of Information Advisory Opinions
09 (2005) and 03 (2016).
9Walton v. Mid-Atlantic Spine Specialists,
280 Va. 113, 122; 694 S.E.2d 545, 549 (Va. 2010) (citing
Commonwealth v. Edwards, 235 Va. 499, 509; 370
S.E.2d at 301, 1988 Va. LEXIS 93, 4 Va. Law Rep. 3003).
10Transparent GMU v. George Mason Univ.,
97 Va. Cir. 212, 2017 Va. Cir. LEXIS 330 (2017).
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