Over the next two pages we have samples of questions Virginia citizens (and a few from outside the state) have asked us via the “Ask Us a FOIA Question” feature on our Web site, www.opengovva.org. We answer an average of seven questions per week. Questions were answered by former VCOG Executive Director Frosty Landon and Associate Director Megan Rhyne. The following questions have been edited for style, length and clarity.
Q: A non profit Community Dental Center was established in our community through individual contributions, grant funding from foundations and organizations, as well as a small portion granted from the General Assembly. The annual operating budget is over $300,000/year. The General Assembly has donated $25,000/year. Additionally the center receives Medicaid reimbursements for the dental care provided. Due to the fact that the center receives Medicaid reimbursements for it’s services, does it need to follow FOIA guidelines? If the board goes into executive session, does anyone record minutes of that session? If so, are they required to share those minutes with the public?
A: The short answer, in my opinion, is that, as you describe it, the center would not be subject to FOIA. First, receipt of Medicaid reimbursements does not turn an entity into a governmental entity subject to FOIA. Otherwise, virtually the whole health-care industry would be considered a governmental entity. Second, Virginia’s FOIA defines a public body as one that is supported wholly or principally by public funds. The Virginia Freedom of Information Advisory Council has interpreted this phrase as meaning that approximately two-thirds of an entity’s budget must come from public funds before it is considered a public body. The FOIAC has also said that in calculating that two-thirds amount, federal grants and reimbursements do not count. As you describe it, only 8 percent of the budget comes from public funds. We at VCOG think the two-thirds threshold is a little too high, preferring it to be closer to 51 percent, but 8 percent could hardly be considered “wholly or principally.” If the center were a public body, there would not be a requirement that minutes be taken in executive session, though VCOG would like to see minutes be mandatory so a paper trail is created in case of a possible FOIA violation. We would encourage you to be as open and forthright in the center’s meetings and minutes as possible – honesty, trust and communication are as important to community-based endeavors as they are to individual relationships.
Q: A relative of mine was offered a teaching position at a Virginia county school and told to resign her current position in another county school system. She did, and after communicating with the principal at the new school, she was contacted by the personnel office to arrange a time to complete all the new-hire paperwork. The same day, a letter came in the mail withdrawing the offer. The personnel office will not tell her the reasons. Does FOIA apply here? Must she make a formal written request?
A:If there is a written record that gives the reason the offer was withdrawn, then that record would presumably be in your relative’s personnel file. And if there’s not a file, per se, the record (wherever it is kept) would still be considered a personnel record. Personnel records are exempt from disclosure under FOIA, but that exemption does not apply when it is the subject of the record (i.e., your relative) who asks for it. (There is a chance, however, that the decision to withdraw the offer was never committed to paper — or e-mail, text message, tape recording, etc. — and was simply an oral decision. If that is the case, unfortunately, FOIA cannot help you. Despite its name, the Freedom of INFORMATION Act, FOIA actually only applies to requests for records, not for information not contained in a record. FOIA specifically says that if no record exists, one needn’t be created [there’s an exemption to this, too, but it would not apply in this case].) To make a FOIA request, your relative need only ask for the record. She does not have to make a formal request, commit it to writing or even say the request is being made under FOIA. FOIA only requires that a requester describe the record sought. Now, having said that, it is nonetheless a better practice to go ahead and submit a written request, citing FOIA, and describing the record she wants. This is simply because a written request will get everyone “on the same page” as to what she’s seeking and what day she’s submitted her request (for purposes of triggering FOIA’s timeline) and it will create a paper trail should there be any problems down the road.
Q: Prior to our marital separation my estranged wife was a city employee engaged in an adulterous affair with another city employee. Is e-mail between the two of them archived by the city subject to FOIA?
A: E-mail records within city government are supposed to be treated the same way as paper records are. The records you seek MIGHT be exempt under the personnel exemption if they have made their way into the employees’ personnel files. But the city would have to specifically say they were not releasing records for this reason. The records you seek also might not fit the definition of “public records.” The definition includes writings and recordings of all types “prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.” The key phrase for purposes of your inquiry is “in the transaction of public business.” This means that e-mail and records having to do with things in the service of the public — the usual parts of every public employee’s job — would be covered by FOIA (making them either open to the public or subject to an exemption). E-mail and notes of a personal nature, or those that do not involve public business (such as invitations to the birthday party in the conference room) would not be considered public records at all and would not have to be released. While I would strongly argue that there is public value in knowing that public employees are using the public’s time and money to e-mail each other about personal matters (instead of doing their jobs), the individual records themselves may not be public records at all. There is no harm in asking for the records. Be as specific as you can in listing what you want: e-mail between this person and that person between this date and that date. This would force the city to examine the e-mails between those two people to determine if they should be released or not. You may get the records you are looking for. And, as a side benefit, you may also bring to their supervisors’ attention the fact that they’ve been using the public’s time to pursue a personal relationship.
Q: I am a taxpaying parent with children in the Fairfax County Public Schools, which has stated that there shall be public access to its audits. I have been told, however, that this must be done through a FOIA request which, in turn, may take time and money. It seems that the unstated requirement of having to go through FOIA is a detriment to getting access to those audit reports. Doesn’t “public access” mean something broader than FOIA? We feel like we are getting railroaded.
A:Your message astonishes me! Virginia’s public bodies must adhere to procedural rules for disclosure of public records, whether or not a requester ever makes reference to the Freedom of Information Act . . . and whether or not the request is written or oral. The burden is on the public body to comply with the FOI Act even if a requester has never heard of it. That act also makes clear that a public record must be made available for inspection and/or copying within five working days. If a fee is to be imposed (and that is discretionary), it must be based on actual cost (no overhead add-ons are allowed), and if there is to be a charge, you are entitled to see an itemized breakdown so you can make certain that it’s reasonable (one test: is employee time that of the lowest paid employee capable of doing the copying?). Search time also can be part of the cost, although I can’t imagine a need for having to search around for an audit. If you do in fact get railroaded, you should contact your delegate or state senator.
Q: The county board of supervisors has voted to have a “retreat” to discuss county busniess matters. The location has some citizens concerned. First, it is over a half hour away from the usual meeting place. Secondly, it is planned for 9 a.m. on a weekday, thus limiting the number of people who may be able to attend (most meetings are in the evening hours), and, finally, access to the Skyline Drive (the meeting is to be held at Skyland Resort) requires a $15 payment at the gate. Is this meeting lawful?
A:Whatever the venue, whatever the start time, meetings at remote sites are legal as long as proper advance notice is given, and agendas and agenda packets are made available to the public at the same time the supervisors receive them. Not right, but legal! Some local governments and school boards hold retreats even two or three hours away from home, and always claim it’s just to avoid distractions of ringing phones and e-mails. We insist that while technically legal, these away-from-home retreats are clearly a violation of the spirit of Virginia’s open-meeting laws. The public should always be provided easy access to meetings of government bodies, close to home and at a convenient hour. Unfortunately, there is nothing in the law that says that. As for requiring 15 bucks to enter the grounds, it’s an absurd roadblock to easy access, and a citizen could certainly go into General District Court asking for an order prohibiting an admission fee — assuming there is no other way to get into the retreat. And if a citizen must pay the 15 bucks, you might want to suggest that supervisors and staff pay the same fee – out of their own pockets!