VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

July 27, 2006, Richmond

The Fifth Response Subcommittee¹ met on July 27, 2006 to discuss whether to add a "fifth response" within FOIA to address situations where a public body receives a records request for records that do not exist or cannot be found. FOIA currently does not specify what response a public body is to provide in such a situation. FOIA currently provides four responses to requests for public records: (1) provide the records; (2) withhold the records in their entirety pursuant to an appropriate exemption; (3) provide the records in part and withhold them in part, again pursuant to an appropriate exemption; and (4) invoke an additional seven working days to respond because it is not practically possible to provide the records or determine whether they are available within the five working day period.

Mr. Fifer opened the meeting with a discussion of the FOIA Council's considerations of this issue last year, and asked for consensus on whether the subcommittee felt it was necessary to add a fifth response within FOIA. Staff described experiences with citizen complaints regarding vague responses, or a lack of response, from public bodies where it seemed likely that the public body did not have or could not find the requested records. The FOIA Council has issued three advisory opinions² recommending that public bodies clearly state when records do not exist, in order to avoid confusion and frustration on the part of the requester. The subcommittee agreed, with input from representatives of the Virginia Press Association (VPA), the Virginia Coalition for Open Government (VCOG), the Virginia Department of Transportation (VDOT), and the Virginia Association of Counties (VACO), that for public bodies to inform requesters when records do not exist is a matter of common courtesy and common sense. Many public bodies already respond in such fashion, by clearly informing requesters when the public body does not have the requested records. However, the subcommittee agreed that in light of prior experiences where public bodies did not respond in such a clear manner, it is necessary to add an additional response within FOIA in order to address such situations. Concerns were expressed regarding the challenge of trying to legislate common courtesy and common sense, particularly that the wording of such a response must be such that it does not lead to misinterpretation, miscommunication, or additional delay in providing records.

An alternative draft version of § 2.2-3704 of FOIA, prepared by Mr. Fifer, was distributed as a working document for discussion of the issues before the subcommittee. The subcommittee and meeting attendees discussed the details of the language to be used in the proposed amendment to § 2.2-3704. Language was drafted so that public bodies could state either that the requested records could not be found or that the records do not exist. Concern was expressed that simply stating that the records "do not exist" could lead to the problem of having to prove a nullity, thus leading to the conclusion that stating that the records "could not be found" was preferable in some situations. On the other hand, in other situations it may be readily known that the public body does not have the requested records,³ and so stating that the records "could not be found" would imply that a search was made for the records when none was conducted. Therefore the added language allows for either response, to be used as appropriate under the circumstances of each request. The subcommittee also decided that it was unnecessary to add specific language concerning a search for records, as making a good faith search for records is already an implicit requirement of FOIA whenever requested records are not immediately available or known not to exist. The draft language also provides that if the public body that receives the request does not have the requested records, but knows that another public body does have them, then the requester shall be so informed.

Additionally, the subcommittee decided to make certain technical changes to the existing language of subsections B and C of § 2.2-3704. There was some confusion in the existing language regarding whether a public body had to provide non-exempt records within five working days, or only had to inform the requesters that the records will be provided. Consistent with prior advisory opinions, the changed language clarifies that non-exempt records must actually be provided within five working days, unless the public body invokes an additional seven days to respond, reaches agreement with the requester concerning additional time to respond, or petitions a court for additional time to respond as allowed by FOIA. Currently subsection C of § 2.2-3704 allows a public body to petition a court for additional time to respond to a request only when the request is for an extraordinary volume of records and a response within the time required would prevent the public body from meeting its operational responsibilities. The proposed amendment would also allow a public body to so petition a court when the request would require an extraordinarily lengthy search, regardless of the volume of records requested, while retaining the requirement that such petition is to be made only if a response within the time required would prevent the public body from meeting its operational responsibilities. This amendment is meant to cover situations where the requester has not requested a large volume of records, but for practical reasons it is unusually difficult to find and access the requested records.

Concerns were also expressed regarding the use of the undefined term "custodian" in the current language of subsection B of § 2.2-3704 and how that language would interact with the proposed fifth response. In particular, if a public body does not have the requested records, it is not the custodian of those records. Pursuant to the current law, it is the custodian who is required to respond to a request. This language, in combination with an added fifth response, leads to the paradoxical situation where a public body that does not have requested records is required to so inform the requester, but at the same time it is not required to respond because it is not the "custodian" of records it does not have. Therefore the "custodian" language was removed from subsection B of § 2.2-3704 in order to clarify that all public bodies subject to FOIA must respond when a records request is received.

The subcommittee concluded its work by voting unanimously to recommend the draft as amended to the FOIA Council for its consideration, and directing staff to prepare the draft for presentation to the FOIA Council at its next meeting.

¹ Subcommittee members Fifer, Bryan, and Malveaux were present; Subcommittee member Griffith was absent; Council member Yancey-Spencer was also present.
² See Freedom of Information Advisory Opinions 16 (2004), 25 (2004), and 05 (2005).
³ For example, when the request is for records of a type the public body does not prepare or retain, or if it is known that the records were destroyed according to their retention schedule under the Virginia Public Records Act.