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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-24
February
15, 2024
David
Williams
Colonial Beach, 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 April 24, 2023.
Dear
Mr. Williams:
You have requested an advisory opinion 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 an Excel copy of your town's budget.
Factual Background
As background information, you serve as a council
member in the Town of Colonial Beach and requested
an Excel copy of the town's budget for fiscal year
2024 "to do a more thorough review for the citizens
that count on [you] to be fiscally responsible with
their tax dollars." You have provided copies
of emails and correspondence that document the following
exchange of communications between you and the town
manager.
You
stated that you attended a meeting on April 4, 2023,
with Colonial Beach's town manager, mayor, and chief
financial officer (CFO) to get a budget overview.
At the end of that meeting, you stated that "you
requested an [E]xcel version of the proposed budget"
and that the town manager said "you can have
a [PDF] version." You again stated that you would
like an "[E]xcel copy," but the town manager
refused your request saying "something about
it being proprietary." You stated that "for
the sake of transparency I'd like the [E]xcel version."
You said that the "conversation basically ended
there."
You
stated that the town council received a PDF version
of the budget on April 5, 2023. You provided our office
with a copy of an email that you sent to the town
manager on April 7, 2023, in which you again requested
"an [E]xcel document version of the budget."
In the email, you further inquired about the reason
why the "council was only allowed to have the
[PDF] version" since it was your understanding
that she previously stated that it "was for proprietary
reasons." You requested that the town manager
"reconsider sending [you] the [E]xcel version,"
and if she would not provide it, you asked "can
you explain the reason as I'm not sure I understand?"
You stated that you "received no answer"
to your inquiries. You noted that in your email "you
incorrectly referenced the town meeting on 4/3 in
error with the correct date being 4/4/23."
On
April 18, 2023, the town manager emailed all of the
council members a link to a shared file site that,
according to you, had "a completely locked down
[E]xcel version of the budget" for fiscal year
2024. You stated that the version of the budget provided
in the shared link "could not be downloaded,
saved, [sorted] or searched so basically no better
than [the PDF] version." The email from the town
manager contained the following message:
At
the request of a councilmember, I am sharing the
Excel version of the FY24 proposed budget for your
review. PDFs of the line-item budget were sent to
your email by the CFO on 4/5.
On
April 20, 2023, you emailed the town manager again
requesting her to provide a "regular [E]xcel
version of the report that is not completely locked
down or is only viewable on a shared site," and
you stated that your "request is authorized under
Virginia [C]ode 2.2-3704 which allows a requester
to receive the document in a readily available format
of his or her choosing." The town manager's reply
email to you on April 24, 2023, stated that:
As
the Chief Executive Officer appointed by the Town
of Colonial Beach, I have provided all documentation
required to fulfill this request in accordance with
the Virginia FOIA [C]ode section you referenced
below and others. Information related to this request
was provided to you in various formats, including
paper on 4/4, electronically PDF on 4/5, and electronically
Excel as you requested on 4/18, and is publicly
available on the Town's website. Given that I take
direction from the council as a body, and I have
satisfied all requirements under FOIA, should a
majority of the council wish to discuss this further,
I'd be willing to discuss it further in a closed
session on May 3rd as part of my performance evaluation,
as this seems to be a question most related to this
topic. Otherwise, this will be my last written correspondence
regarding this matter.
I
am blind copying all the council for their awareness.
You
stated in an email to our office that:
Per
a discussion you had with a fellow council member
we agreed it would be worth pursuing an official
opinion on this potential FOIA violation considering
a requestor is allowed to request a document in
a readily available format and this format is indeed
readily available since it was presented to myself
and the Mayor on 4/4/23.
Analysis
"In considering any records request, the initial
step is to determine whether the records sought are
public records subject to FOIA."1 Section 2.2-3701
of the Code of Virginia defines "public records"
as:
[A]ll
writings and recordings that consist of letters,
words, or numbers, or their equivalent, set down
by handwriting, typewriting, printing, photostatting,
photography, magnetic impulse, optical or magneto-optical
form, mechanical or electronic recording, or other
form of data compilation, however stored, and regardless
of physical form or characteristics, prepared or
owned by, or in the possession of a public body
or its officers, employees, or agents in the transaction
of public business.
In general, a "public record" is all writings
and recordings in various types of formats that have
been "prepared or owned by, or in the possession
of a public body or its officers, employees, or agents
in the transaction of public business." Therefore,
a copy of the town's budget for fiscal year 2024,
in accordance with § 2.2-3701, would qualify
as a public record under FOIA.
Subsection
A of § 2.2-3704 provides, in relevant part, that:
Except as otherwise specifically provided by law,
all public records shall be open to citizens of
the Commonwealth, representatives of newspapers
and magazines with circulation in the Commonwealth,
and representatives of radio and television stations
broadcasting in or into the Commonwealth during
the regular office hours of the custodian of such
records. Access to such records shall be provided
by the custodian in accordance with this chapter
by inspection or by providing copies of the requested
records, at the option of the requester.
In
review of the provided information, as a citizen of
Virginia, you have the option to either inspect or
obtain copies of the town's budget. In your email
to our office, you acknowledge that even though you
are a council member for the Town of Colonial Beach,
you know that your rights under FOIA are no more or
less than those of "average citizens." Our
office concurs. In prior opinions, our office affirmed
that when a government employee makes a FOIA request,
"he is acting in his capacity as a citizen and
is entitled to the same rights and protections as
other citizens making the same request."2 In addition,
a government employee's "FOIA request should
not be responded to any differently than other requests,
and should be handled in the same routine manner."3
FOIA "does not distinguish between a citizen
of the Commonwealth and government employees."4
In general, there is no provision in FOIA that "establishes
additional, separate, or different rights for elected
officials or public employees."5 Thus, FOIA grants
all citizens of the Commonwealth and applicable media
representatives the same rights of access to public
records and meetings regardless of whether a person
is a private citizen, a government employee, or an
elected or appointed government official.6
Subsection
B of § 2.2-3704 provides that:
A request for public records shall identify the
requested records with reasonable specificity. The
request need not make reference to this chapter
in order to invoke the provisions of this chapter
or to impose the time limits for response by a public
body. Any public body that is subject to this chapter
and that is the custodian of the requested records
shall promptly, but in all cases within five working
days of receiving a request, provide the requested
records to the requester or make one of the following
responses in writing:
1. The requested records are being entirely withheld.
Such response 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.
2. The requested records are being provided in part
and are being withheld in part. Such response 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.
3. 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.
4. It is not practically possible to provide the
requested records or to determine whether they are
available within the five-work-day period. Such
response shall specify the conditions that make
a response impossible. If the response is made within
five working days, the public body shall have an
additional seven work days or, in the case of a
request for criminal investigative files pursuant
to § 2.2-3706.1, 60 work days in which to provide
one of the four preceding responses.
In reviewing the provided information, it appears
that the town manager did not deny your request for
the record or cite to an applicable exclusion of law
that would preclude, entirely or in part, the release
of the requested record as required in subdivisions
B 1 and B 2 of § 2.2-3704. You stated that the
town manager made a general reference to "propriety"
but did not provide, as required, a specific Code
section authorizing the withholding of the records
or justifying any exclusion under law.
Subsection D of § 2.2-3704 provides that "no
public body shall be required to create a new record
if the record does not already exist." Additionally,
"a public body may abstract or summarize information
under such terms and conditions as agreed between
the requester and the public body." The budget
was obviously a record that existed as it had previously
been provided on several occasions upon request. There
does not appear to be a need for the town manager
or other office personnel to "abstract or summarize"
the requested information. The policy of FOIA set
forth in subsection B of § 2.2-3700 provides
that "[a]ll 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." In this instance,
it seems that the town manager also did not to attempt
to enter into any sort of an agreement or understanding
with you concerning the production of the requested
record as allowed under FOIA.
Subsection G of § 2.2-3704 provides, in relevant
part, that:
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. The excision of
exempt fields of information from a database or
the conversion of data from one available format
to another shall not be deemed the creation, preparation,
or compilation of a new public record. [Emphasis
added].
In this matter, you clearly identified the public
record and the medium you sought when you requested
a copy of the town's budget in an unlocked Excel version.
FOIA requires public bodies to provide "nonexempt
records maintained in an electronic database in any
tangible medium identified by a requester . . . if
that medium is used by the public body in the regular
course of business." In a prior opinion, our
office concluded that "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."7
However, it appears that the town manager provided
the budget record in a medium that she preferred —
first as a PDF, then as a locked Excel file — but
not in a medium requested by you (an unlocked Excel
file).
A
final determination on this issue depends on what
medium the town's budget officers regularly use for
these records. According to the provided information,
it appears that an unlocked Excel version of the town's
budget would be a medium used by the town manager's
office in the regular course of business. Otherwise,
the town manager, CFO, and office personnel would
be unable to enter and remove data from the Excel
spreadsheet or to update or revise any budgetary information
throughout the drafting and approval process. Our
office has previously opined that subsection G of
§ 2.2-3704 "requires that a public body
provide a public record in a requested medium if regularly
used in the course of business by the body."8
Thus,
it becomes a matter of fact whether there was a violation
of FOIA when the town manager denied your request
for a copy of the town's fiscal year 2024 budget in
an unlocked Excel version. A determination of a violation
depends primarily on the issue of whether an unlocked
version of Excel is a tangible medium used in the
regular course of business by the public body. Generally,
our office defers making any determination of fact
since "a court of law is the appropriate place
to make any determinations of fact."9 Nevertheless,
if the town manager or other officials in the town's
budgetary office utilize an unlocked Excel version
in their regular course of business, then it would
appear that the town manager failed to comply with
FOIA when she did not provide the requested record
in the identified medium.
In
addition, the town manager appears to have repeatedly
refused to provide the public records in the medium
identified and requested by you and cut off further
communication. Specifically, in her April 24 email,
she stated that "this will be my last written
correspondence regarding this matter." A FOIA
request is intended to be a cooperative and collaborative
process between the public body and the requester
and "is not an adversarial event."10 As stated
previously, the established policy of FOIA, in subsection
B of § 2.2-3700, provides that "[a]ll 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."
In support of this policy, our office has advocated
on prior occasions that "a FOIA request is not
meant to be an adversarial process."11 Moreover,
"[a]ny attempt by a government entity to intimidate
or discourage requesters from exercising this right
creates a hostile and adversarial environment, pitting
government against the very people that it serves,
which clearly goes against the legislative intent
of the law."12 In 2004, this office offered the
following advice that is still relevant and appropriate
today:
FOIA
operates most effectively as a tool that can be
used by citizens to obtain government records; invoking
FOIA rights should not be interpreted as the invocation
of an adversarial process staking government against
citizens. Unfortunately, situations do sometime[s]
escalate and require a citizen to enforce his FOIA
rights in court. However, the practical perspective
of dealing with the application of FOIA on a daily
basis has taught me that clear and concise communication
between a requester and a government official —
relying on the requirements set forth in the law
and not on editorial comment — is often the best
way to successfully resolve any concerns about a
FOIA request.13
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 05 (2006).
2Freedom of Information Advisory Opinions
07 (2015), 02 (2014), and 15 (2003).
3Freedom of Information Advisory Opinion
15 (2003).
4Id.
5Freedom of Information Advisory Opinions
07 (2015) and 02 (2014).
6See id.
7Freedom of Information Advisory Opinion
01 (2023).
8Freedom of Information Advisory Opinion
11 (2000).
9Freedom of Information Advisory Opinion
08 (2018).
10Freedom of Information Advisory Opinion
15 (2003).
11Freedom of Information Advisory Opinions
06 (2009), 06 (2005), 25 (2004), 16 (2004), 15 (2003),
and 11 (2003).
12Freedom of Information Advisory Opinion
15 (2003).
13Freedom of Information Advisory Opinion
16 (2004). |