Over the next two pages we have samples of questions Virginia citizens (and a few from outside the state) have asked us via our new “Ask Us a FOIA Question” on our Web site, www.opengovva.org. We have answered at least 100 questions since out Web site debuted in November. The following samples have been edited for style, length and clarity.
Q: Did I have to reference FOIA in my request for records? My first request for records did not mention FOIA and was denied. My second and third requests did not mention FOIA, either, and they were ignored. My fourth request mentioned FOIA and the general registrar, to whom the request was directed, turned over the records because, the registrar said, I referenced FOIA.
A: The registrar was wrong to ignore your requests until you invoked the magical word “FOIA.” FOIA itself (§2.2-3704(B)) could not be any more explicit: “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.”
Assuming your requests were reasonably specific, the county had a duty to respond to all of your requests. The written denial to the first request should have cited the specific exemption in FOIA (or elsewhere in the Va. Code) that the county was invoking. (Of course, if they cited a FOIA exemption to you, doesn’t that mean they considered your request to be made under FOIA even if you didn’t cite it!?).
The second and third requests should have been responded to – — even if the responses merely said the requests were again denied. There is no provision in FOIA saying the custodian of record can refuse to respond to multiple requests from the same party. In fact, §2.2-3704(E) says that failure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter.
Q: Are city and county dog license records subject to FOIA? Could marketers get a list through of who owns a dog in a locality?
A: Since dog licenses are issued by the government, a record of who has been issued a dog license is a public record. There is no FOIA exemption shielding release of dog license information — not even personally identifying information, such as a person’s name, address, dog breed, etc. Furthermore, the statute that authorizes local governments to issue licenses (§3.1-796.86) specifically says that information on dog (or cat) licenses shall be “open to public inspection.”
There’s no limit on the number of records a person can ask for under FOIA, provided you’re willing to pay the actual cost of making copies. And except for prisoners and out-of-state requesters, there’s no limit on who can ask for records. A commercial entity can ask for copies of one or all dog licenses issued by the locality just as an individual citizen can. The government cannot ask for what purpose the records will be used, regardless of whether that use is commercial in nature.
Finally, a requester can ask for the records in whatever format she wants (provided the government uses that format). For example, if the records are in paper form, she can ask for paper copies. If the records are in electronic form, she can ask for them to be e-mailed in the format the government keeps them, burned onto a CD, transferred onto a memory stick (flash/thumbnail drive), etc., again, so long as she is willing to pay for the cost of doing so.
Q: Is a non-profit organization, wholly funded by an agreement between a county and a cable TV company subject to FOIA?
A: While FOIA does not apply to private entities, what are we to do when government starts privatizing government functions, creates private foundations that don’t spend public money but that act on behalf of a government entity, or enters into non-profit partnerships with private companies?
The FOI Advisory Council has come up with a general guideline for determining whether a “quasi-public body,” as they are known, is subject to FOIA. The council has found that if an entity receives at least two-thirds of its funding from public sources, then it is a “public body” and must comply with FOIA. In coming up with the two-thirds amount, the council says money from federal grants should not be counted (a finding we’re not crazy about). The council has also said that the entity’s financial structure should be evaluated at the time a FOIA request is made (i.e., what the PRESENT budget reveals, not what PAST budgets were based on).
An additional factor is what type of function the non-profit entity is performing. A entity that performs an essential function, even if it receives less than two-thirds public funds, may still be considered a public body. Likewise, an entity that performs a discretionary function may require hard two-thirds funding to be considered a public body. Keep in mind, too, that some of these quasi-public entities will perform purely private functions in addition to the public function they perform for the government. In that case, the entity would have to comply with FOIA with respect to the government-related functions, but not its private ones.
Q: Is it possible to file a FOIA request with the Virginia Supreme Court? I’m hoping to obtain a manual that clerks and deputy clerks use when they’re processing orders from judges and the procedures they must follow.
A: Though there may be separation of powers issues that, if pressed, a court might say exempt the entire judiciary from FOIA, that is not how FOIA has operated in practice and it’s not in keeping with the spirit behind FOIA. Constitutional offices, such as commonwealth attorneys and clerks of court are specifically covered by FOIA, and except for a court case that prompted the addition of that language, everyone had been operating under the assumption that they were already covered. So there doesn’t seem to be a blanket exemption for the judicial branch.
As most local court clerks understand, there is a difference between the records the judiciary keeps as they pertain to cases before them, like John Doe v. Jane Smith, and other records in their possession. Case records are available to the public, but it is the First Amendment and common-law principles that guarantee access to those records. There are also special rules for these kinds of records as to how much a clerk may charge for copies and other things. FOIA does not apply to these records.
There are other records held by clerks, though, as the official repository of certain records (like land records), as well as records pertaining to the administration of the courts generally. In our opinion, a court — even the Supreme Court — would be required to turn over certain administrative records under FOIA. These administrative records would include budgets, expenditures, case statistics, reimbursements, etc., just not those records that could compromise the deliberative process of the judges.
The manual you seek seems to be an administrative record that should be disclosed under FOIA. This isn’t revealing anything about the deliberative process, it’s only showing what must be done, when and in what order.
Q: A citizen has written at least one FOIA letter a day, often without a question, for years. As we are responsible for answering letters within five days, at what point does his behavior become harassment. Is there anything we can do to keep this citizen from the same comments and non-questions?
A: We hear about overzealous records requesters from localities across the state. Unfortunately, just as there are those misinformed government records custodians who think the records are their own property and wrongly withhold them, there are those misinformed citizens who use FOIA to distract and abuse government workers.
Despite the aggravation and annoyance these multiple requests cause, there’s not much you can do. You do have a legal obligation to answer this person’s FOIA requests within five days.
However, there are a few things you might be able to do to dampen the aggravation. First, if there is a way to reliably distinguish between the letters that are actually asking for records and those that are just spouting off opinions, then sort the letters accordingly. Respond to the FOIA requests as you would normally be required to, and come up with another course to follow (if any) for the other letters. You don’t have an obligation under FOIA to respond to general rants that do not include a request for records.
In sorting the letters out, however, be mindful of the fact that a request for records does not have to specifically mention FOIA, so a legitimate request could be lurking within a diatribe. On the other hand, a request for records must identify the requested records with reasonable specificity. As the FOI Advisory Council frequently states, FOIA is a statute governing access to records and meetings; it is not a statute governing information generally. If he’s just asking questions without asking for records, presumably FOIA’s time-limits would not kick in.
Another thing you can do is make up some form letters just for him. When you get a letter, if it doesn’t really ask for records (or even if it does and you’ve already provided the records to him in an earlier request) fill out the form letter and mail it back. Make the response process as easy as possible.
Remember, too, that FOIA allows you to delay processing a FOIA request until any FOIA-related invoice over 30 days old is paid. Does your letter-writer have outstanding FOIA bills?
We appreciate the position you’re in, your respect for FOIA’s requirements and your willingness to seek our advice. You’re between a rock and a hard place, for sure, but as you recognize, FOIA doesn’t distinguish between the gracious records requester and the swear-inducing one.