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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-23
December
5, 2023
Amanda
Locklear
Haymarket, Virginia
Request received 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 email of February 27, 2023.
Dear
Ms. Locklear:
You have requested an advisory opinion from the Virginia
Freedom of Information Advisory Council on whether
a custodian of record complied with the Virginia Freedom
of Information Act (§ 2.2-3700 et seq. of the
Code of Virginia) (FOIA) regarding a request you made
for electronic communications on the Prince William
County Public Schools email server.
Factual Background
As background information, on January 5, 2023, at
11:47 a.m., you submitted a records request via email
to the Prince William County school system (School
System) for "electronic communications on the
Prince William County Email Server" with specific
criteria to be used as a search query. Specifically,
you requested "electronic communication (internal
emails) that are not maintained as part of my son's
educational record." You further clarified that
"to minimize the administrative burden and financial
costs associated with the production of emails, I
would like to provide the following criteria to query
[the] email server: Date Range - September 1, 2022
- January 3, 2023." You also included three email
addresses with five keywords and names, for use in
the search. You stated that you were "willing
to pay fees for this request up to a maximum of $500.00."
You further qualified your request by expressing that
"[i]f you estimate that the fees will exceed
this limit, please inform me first before filling
my request" and provided that the information
may be sent via "U.S. mail, email, or in person,
but I would prefer email." The FOIA Officer for
Prince William County Public Schools (FOIA Officer)
responded on the same day at 3:35 p.m. acknowledging
that your request had been received and was "being
processed." She also wrote that she would "let
you know if the cost exceeds $200, and will notify
you of the required deposit if that is the case, or
if I need more information or clarification."
On January 6, 2023, at 10:07 a.m., the FOIA Officer
communicated the following to you: "After communicating
with staff responsible for providing the responsive
records you are asking for, it was brought to my attention
that the search cannot be conducted with 'potential
participant names and/or email addresses' as you stated."
She further requested for you to "provide the
specific staff emails and names you wish to have searched."
You responded on the same day at 10:58 a.m. with the
names and email addresses of six staff members.
On
January 12, 2023, at 3:13 p.m., the FOIA Officer emailed
you that she had obtained from the Information Technology
(IT) Department the emails of the six staff members
you had specified from your requested date range of
September 1, 2023, to January 3, 2023, and provided
you a cost estimate of $269.62 for fees associated
only with the labor costs in "reviewing, redacting
as necessary, and producing the applicable records."
The FOIA Officer stated that she was reviewing "a
few hundred emails combined, between all staff, and
review for applicable student information must be
redacted when and if other children are being included
or mentioned in the staff's emails." She also
stated that she was "only charging you for 3
hours, although I have already spent over 5 hours
and all emails have not been reviewed yet." She
further notified you that a $200 deposit or payment
of the total amount of $269.62 was required "if
you want to proceed with your request at this time."
You responded to her on the same day at 3:35 p.m.
that you appreciated her and her time and to "proceed
with the request" and made arrangements to provide
the required payment of $269.62.
On
January 13, 2023, at 9:47 a.m., you emailed the FOIA
Officer that you had dropped off the check in person
at the Edward L. Kelly Leadership Center. The FOIA
Officer responded on the same day at 12:53 p.m. that
your check had been received with full payment of
$269.62 and that she "will proceed with processing
your request." She also informed you that "it
is not practically possible to provide the requested
information within the five (5) working day period
of the original request" and notified you that
"an additional seven (7) working days in which
to respond to your request as provided by Virginia
Code 2.2-3704(B)(4)" was required. In your email
to her on the same day at 1:06 p.m., you acknowledged
invocation of the additional time required to fulfill
your request.
On
January 25, 2023, at 3:47 p.m., the FOIA Officer emailed
you that "[w]e are providing this response consistent
with Virginia Code § 2.2-3704" along with
access to the requested records via an enclosed hyperlink.
Since the provided hyperlink was set to expire on
February 1, 2023, her email noted that "[d]ue
to the large number or records being provided to you,
if you need additional time to download or review
beyond the due date, please do not hesitate to contact
me so I may grant you access." Moreover, the
FOIA Officer's response stated that "[a] separate
email will be sent to you containing the password
to access this link." Her response also stated:
In
accordance with Virginia Code § 2.2-3705.4,
§§ 22.1-287.02 [et seq.], and the Family
Educational Rights and Privacy Act, counts fewer
than 10 are exempt from release in order to protect
student-identifiable information; therefore, these
counts have been redacted, as well as other student's
names, and their legal guardians [sic] email addresses
which were included in several emails, and attachments,
amongst those staff members you provided.
In
addition, the FOIA Officer requested that "[f]or
accountability purposes, please acknowledge receipt
of this email." On the same day at 3:54 p.m.,
you emailed the FOIA Officer thanking her for her
assistance and confirming receipt of her email but
acknowledging that you had "not received the
password yet though [sic]." You asked for clarification
as to the meaning of the statement she provided regarding
"counts fewer than 10 are exempt from release."
You further asked, "Does this mean 10 emails
are exempt from release all together?" The FOIA
Officer responded on the same day at 4:03 p.m. that
she had "sent the password email at 3:49. Please
let me know if you still have not received it."
She also wrote that:
What the statement below means, is that in some
emails the teachers had different documents attached,
of say a class list, so all the student names, their
student ID numbers, grades, or other information
considered protected student records, has been redacted
in accordance to those FOIA and FERPA exemptions.
In regard to mentioning any count under 10, applies
to any time in an attachment the teacher(s) tracked
how a number of students in his class. It is not
to be interpreted as there only being 10 emails,
there are several hundred emails for you to review
from all staff as requested.
You emailed the FOIA Officer on the same day at 5:44
p.m. thanking her for the clarification and informing
her that you had received the password email. You
also asked, "By any chance do you still have
the hard copies? May I come by the Kelly Leadership
building and pick them up if you do?"
On January 26, 2023, the FOIA Officer responded via
email at 8:13 a.m. as follows: "The responsive
records provided to you were never hard copies, all
of the review and redacting was done electronically
over a period of days and took many hours. There was
never a print and per page charge included in your
estimate. I do not have any hard copies."
Apparently,
you spoke with the FOIA Officer on the phone later
on the same morning and, during the conversation,
said that in some cases you had "more emails
than I had received from the request." You noted
that you had only received "a sent folder for
one of the employees that contained four emails"
and asked "why my FOIA request did not include
delete folders or any other folders that contained
the query information?" According to you, the
FOIA Officer said during this phone call that she
had realized this as well and said "she would
reach out to the IT Department for more information."
You
emailed the FOIA Officer on the same day at 11:44
a.m. thanking her for the phone call that morning
and said that after having "a chance to go through
some of the documents again," you noticed the
name of a child who is the son of a teacher at the
school being mentioned in some of the records and
noted that his name "needs to be redacted."
You also inquired about an email sent by one of teachers/administrators
to an unfamiliar person's email. You stated that you
did not know who this person was receiving these emails
but that this "email address shows up on various
documents throughout," and you believed that
"it is supposed to be redacted." You claim
that you were "not told my son's information
was sent to someone outside of the school." Additionally,
you stated, "There are missing emails."
You claimed that you had "some [emails] that
are not there," apparently indicating you had
obtained other copies of emails that were responsive
to your request that were not included with the copies
provided by the School System. You wrote, "I
noticed the folders say Inbox and Sent under each
individual. Are deleted emails included as well?"
You also wrote, "If you go into [teacher/administrator
A's] file there is only a folder that says sent. However,
[teacher/administrator B's] sent folder contains emails
that she has forwarded to [teacher/administrator A]."
You asked, "Should those show in an inbox folder
for [teacher/administrator A] or have they been deleted
and not retrieved in the search? This was the easiest
exemple [sic] to use."
On
February 1, 2023, at 9:54 a.m., you emailed the FOIA
Officer once again because you "wanted to check
back with [her] regarding my request for internal
email communication on the server from January 5,
2023." You asked whether she was "able to
find out why the one drive documents [sic] did not
contain emails from any other folder besides the inbox
or sent folder?" You also asked, "Is this
FOIA request considered fulfilled and closed on your
end?" You stated that you had yet to receive
a reply directly from the FOIA Officer.
You
stated that you reached out to the Office of the Associate
Superintendent for Special Education for the School
System for assistance on February 14, 2023, and received
a response via email on February 15, 2023, at 9:37
a.m. In her email, the administrative assistant for
the Associate Superintendent for Special Education
said that she had spoken with the FOIA Officer "who
confirmed that she has released all records that the
IT Department provided in response to your FOIA request."
The administrative assistant added, "If you have
questions that are specific to special education services
or staff, please let me know and I will find the appropriate
person to get you the answers you need." You
responded via email to the administrative assistant
on the same day at 10:11 a.m. thanking her for the
"follow up."
Analysis
In summary, you have requested guidance from our office
pertaining to the interpretation and application of
FOIA regarding a specific records request that you
submitted to the School System on January 5, 2023.
In the request email to our office, you stated that
you feel that in this instance "there might be
disconnect here pertaining to the interpretation and
application of FOIA" and would like a written
advisory opinion regarding what has transpired. You
also have asked that "if there are violations,
what remedies are available[?]" You provided
our office with "all email communication with
the FOIA Officer regarding [your] request and the
email from the Associate Superintendent's Office."
You have asked whether a FOIA Officer should respond
"to an email follow up regarding a FOIA request"
or "is no response considered appropriate once
information is sent?"
You
stated that your "request was for electronic
communications on the Prince William County Email
Server with specific query information" and that
you "received only inbox and sent box folder
information." You stated that "upon downloading
and reviewing, I realized what I received was incomplete;
emails were missing, and the file contained only inbox
and sent box folders from Microsoft Office."
You also asked, "Does this constitute withholding
records that are not exempt?" In addition, you
asked, "If IT did not provide the required information
to completely respond to the FOIA request[,] what
actions should be taken and who is responsible for
taking those actions?" You stated that it was
your understanding that "[d]epartments and individuals
who are not responsive, delay, and/or withhold information
for release will receive a letter of non-compliance
from the FOIA Officer."
FOIA
policy in § 2.2-3700 of the Code of Virginia
provides that: "All public records and meetings
shall be presumed open, unless an exemption is properly
invoked." The policy further states that:
The provisions of this chapter shall be liberally
construed to promote an increased awareness by all
persons of governmental activities and afford every
opportunity to citizens to witness the operations
of government. 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.
Subsection B of § 2.2-3704 provides that requests
"for public records shall identify the requested
records with reasonable specificity." In this
matter, it appears that, after minimal discussion
with the FOIA Officer, you provided sufficient criteria
with reasonable specificity, such as the names of
six individuals, email addresses, and date range,
to be used as a search query for the electronic communications
information you sought.
Upon
receipt of a valid FOIA request, a public body, as
defined in § 2.2-3701, shall respond, as provided
in subsection B of § 2.2-3704, "promptly,
but in all cases within five working days of receiving
a request, provide the requested records to the requester"
or respond with one of the four responses set out
in in subsection B. Subsection E of § 2.2-3704
provides that "[f]ailure to respond to a request
for records shall be deemed a denial of the request
and shall constitute a violation of this chapter."
It appears that your initial request was made on January
5, 2023, but as it was written, the School System
was unable to perform the necessary search to find
the records. After further communication, your request
was clarified on January 6, 2023, the School System
notified you on January 12, 2023, that deposit or
payment of the total amount of the fees associated
with fulfilling your request was required, and the
School System invoked on January 13, 2023, an additional
seven working days to respond to your request. After
the invocation of the additional seven working days
provided by subdivision B 4 of § 2.2-3704 and
a determination pursuant to subsection H of §
2.2-3704 that a deposit for estimated fees in excess
of $200 was required, the FOIA Officer appears to
have responded to your request in accordance with
the timelines and parameters established under FOIA.
The email communications sent and received and phone
calls made and received between the FOIA Officer and
yourself appear to have been prompt, almost immediate
in some instances, and courteous as noted in the records
provided. For the most part, except for your request
for hard copies of the emails at the end of the process
and perhaps an unclear response to one of your inquiries,
there appears to have been clear and considerate communication
exchanged between both parties without any adversarial
posturing.
Subdivision
B 1 of § 2.2-3704 provides that the custodian,
if withholding the entirety of records requested,
"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." If the requested records are
being provided in part and are being withheld in part,
subdivision B 2 of § 2.2-3704 provides that the
custodian "shall identify with reasonable particularity
the subject matter of withheld portions, and cite,
as to each category of withheld records, the specific
Code section that authorizes the withholding of the
records." Moreover, § 2.2-3704.01 provides
that:
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.
For records containing both excluded and nonexcluded
information, pursuant to § 2.2-3704.01, the custodian
is required to review the requested records to ensure
the release of information that is not exempt while
also deciding whether to release information that
is subject to any discretionary exemption and withholding
any information that is prohibited from release. In
a prior advisory opinion, this office opined that
if the requested records are within the terms of an
exemption and the custodian elects to utilize his
discretion provided by the exemption, then the records
at issue may be properly withheld from release to
the public as long as the custodian identifies "with
reasonable particularity the volume and subject matter
of withheld records, and cite[s], as to each category
of withheld records, the specific Code section that
authorizes the withholding of the records."1
In
this matter, the custodian released the requested
records in part and withheld those portions of the
records that she deemed to be exempt. The FOIA Officer
acknowledged in her January 25, 2023, email that she
was providing the requested records "consistent
with Virginia Code § 2.2-3704" but "in
accordance with Virginia Code § 2.2-3705.4, §§
22.1-287.02 [et seq.], and the Family Educational
Rights and Privacy Act [FERPA], counts fewer than
10 are exempt from release in order to protect student-identifiable
information." After you inquired further as to
the meaning of this statement, the FOIA Officer clarified
that:
What the statement below means, is that in some
emails the teachers had different documents attached,
of say a class list, so all the student names, their
student ID numbers, grades, or other information
considered protected student records, has been redacted
in accordance to those FOIA and FERPA exemptions.
In regard to mentioning any count under 10, applies
to any time in an attachment the teacher(s) tracked
how a number of students in his class. It is not
to be interpreted as there only being 10 emails,
there are several hundred emails for you to review
from all staff as requested.
The FOIA Officer declared that this information was
withheld "to protect student-identifiable information"
and "therefore, these counts have been redacted,
as well as other student's names, and their legal
guardians [sic] email addresses which were included
in several emails, and attachments, amongst those
staff members you provided." Whether individual
students could be identified if the records had been
released without redactions is a matter only a court
may decide, as this office does not have authority
to order the production of records or rule on disputed
facts. Therefore, given the background provided and
without additional facts to the contrary, it would
appear that the FOIA Officer acted appropriately in
withholding exempt information concerning identifiable
individual students.
Our
office acknowledges the difficulty for a requester
regarding the uncertainty that the custodian has provided
all applicable records as requested. In most cases,
a requester does not know whether the custodian is
providing all of the requested information and is
complying with FOIA. In a prior advisory opinion,
this office addressed this concern when stating that:
Considering the policy of FOIA, the legal duties
it imposes, and the presumption that public officials
will obey the law in carrying out their duties,
therefore, it must be presumed that while the methods
and extent of searches may vary, any search for
records made under FOIA must be carried out in good
faith.2
Accordingly, subsection C of § 2.2-3704.2 requires
local public bodies to provide "the name and
contact information of the public body's FOIA officer
to whom members of the public may direct requests
for public records and who will oversee the public
body's compliance with the provisions of this chapter."
Moreover, subsection E of § 2.2-3704.2 provides
that:
Any
such FOIA officer shall possess specific knowledge
of the provisions of this chapter and be trained
at least once during each consecutive period of
two calendar years commencing with the date on which
he last completed a training session by legal counsel
for the public body or the Virginia Freedom of Information
Advisory Council (the Council) or through an online
course offered by the Council. Any such training
shall document that the training required by this
subsection has been fulfilled.
As
such, a designated FOIA officer is required to obtain
the proper training on FOIA and adhere to his duty
in providing the appropriate records in accordance
with the law. The issue of determining whether a FOIA
officer has received the required training in accordance
with the law may be verified simply by submitting
a request to the custodian for copies of the FOIA
officer's training records.
You
said that some information was "incomplete"
and that "emails were missing, and the file contained
only inbox and sent box folders." In particular,
you inquired on more than one occasion whether the
provided records included information contained in
"delete folders." Additionally, you claim
that the FOIA Officer did not answer this question
or respond to your inquiries about whether this FOIA
request was "considered fulfilled and closed
on [their] end" after the records were provided.
Addressing this last concern first, "FOIA applies
to requests for public records, not requests for information
or for answers to questions."3 FOIA does not require
a custodian to answer questions, grant interviews,
or provide explanations. "FOIA only requires
a public body to provide access to public records
of which it is the custodian."4
On
the issue of whether the FOIA Officer and the custodian
failed to answer your inquiries about potentially
unreleased information from the teachers' "delete
folders," it appears that there may have been
some miscommunication. The administrative assistant
for the Associate Superintendent for Special Education
said that she had spoken with the FOIA Officer "who
confirmed that she has released all records that the
IT department provided in response to your FOIA request."
The custodian and its FOIA Officer appear to assert
that they have provided all of the requested information
except for those portions of the records specifically
withheld because they contain exempt student-identifiable
information. From your perspective, it appears that
they did not address specifically your inquiry about
any information from the "delete folders"
and may not have provided all of the requested information
as required by FOIA. Thus, there appears to be a factual
dispute concerning whether you believe the custodian
and FOIA Officer complied with FOIA.
On
prior occasions, our office has opined that "[i]f
a factual dispute about the content or purpose of
the records exists, a court of law is the appropriate
place to make any necessary determinations of fact."5
The Supreme Court of Virginia has stated that "as
a threshold matter, 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."6
We
next address your inquiries of whether the custodian
provided the required information in full and "what
actions should be taken and who is responsible for
taking those actions?" If you believe that your
FOIA rights have been violated or the custodian or
FOIA Officer has not performed in accordance with
the law, the statutory remedy, as provided in §
2.2-3713, is for a person to file a petition for mandamus
or injunction in either general district or circuit
court (petitioner's choice). Subsection C of §
2.2-3713 provides that:
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.
In addition, subsection D of § 2.2-3713 provides
that:
The petition shall allege with reasonable specificity
the circumstances of the denial of the rights and
privileges conferred by this chapter. A single instance
of denial of the rights and privileges conferred
by this chapter shall be sufficient to invoke the
remedies granted herein. If the court finds the
denial to be in violation of the provisions of this
chapter, the petitioner shall be entitled to recover
reasonable costs, including costs and reasonable
fees for expert witnesses, and attorney fees from
the public body if the petitioner substantially
prevails on the merits of the case, unless special
circumstances would make an award unjust. In making
this determination, a court may consider, among
other things, the reliance of a public body on an
opinion of the Attorney General or a decision of
a court that substantially supports the public body's
position.
FOIA requires public bodies to provide all requested
records unless otherwise excluded by law from release.
If there is a factual dispute regarding whether all
records have been provided, only a court may make
a binding determination of fact. However, note that
subsection E of § 2.2-3713 provides specifically
that:
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. No court shall be required to accord
any weight to the determination of a public body
as to whether an exclusion applies. Any failure
by a public body to follow the procedures established
by this chapter shall be presumed to be a violation
of this chapter.
Thus, if there is a dispute regarding the withholding
of records in whole or in part, because the public
body is the only party with access to the unredacted
records, the public body must bear the burden to prove
that any redactions were properly made in accordance
with any applicable discretionary exemption(s) or
prohibition(s).
On
previous occasions, our office has opined that "FOIA
operates most effectively as a tool that can be used
by citizens to obtain government records" and
that "invoking FOIA rights should not be interpreted
as the invocation of an adversarial process staking
government against citizens."7 There
have been unfortunate situations that escalated and
required citizens to enforce their FOIA rights in
court.8 However, our office continues to
advocate that clear and concise communication between
a requester and a government official is the most
efficient manner in which to resolve any concerns
about a FOIA request.9 As a state agency, our office
does not make recommendations regarding hiring attorneys
or initiating litigation. Please be advised that if
you are considering filing a petition, as with any
other type of court proceeding, you may wish to consult
your own attorney before deciding whether to do so.
In
regards to your query of whether "[d]epartments
and individuals who are not responsive, delay, and/or
withhold information for release will receive a letter
of non-compliance from the FOIA Officer," our
office is unable to address any such disciplinary
action for nonperformance. That type of determination
would likely be controlled by an internal policy of
an individual public body. FOIA does not contain a
specific disciplinary action for a FOIA officer except
for what is provided by §§ 2.2-3713 and
2.2-3714.
Thank you for contacting this office. We hope that
this opinion is of assistance.
Sincerely,
Joseph
Underwood
Senior Attorney
Alan
Gernhardt
Executive Director
1Freedom
of Information Advisory Opinion 01 (2014).
2Freedom of Information Advisory Opinion
04 (2010).
3Freedom of Information Advisory Opinions
07 (2011) and 06 (2005) (citing Freedom of Information
Advisory Opinions 14 (2000) and 47 (2001); 1991 Op.
Att'y Gen. Va. 13; 1991 Op. Att'y Gen. Va. 9).
4Freedom of Information Advisory Opinion
07 (2011).
5Freedom of Information Advisory Opinions
02 (2023) and 08 (2018).
6Hawkins v. Town of South Hill,
87 S.E.2d 408, 416 (Va. 2022) (alterations and citations
omitted).
7See Freedom of Information Advisory
Opinions 06 (2009), 06 (2005), 25 (2004), 16 (2004),
15 (2003), and 11 (2003).
8Id.
9Id.
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