The followin are 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 VCOG Associate Director Megan Rhyne. The following questions have been edited for style, length and clarity.
Q:A town council member has asked that I, as Town Administrator, secure the e-mail addresses of citizens so we (the town) can send our newsletter, etc., but also to solicit volunteers for town events. Is this legal?
A: As you know from receiving spam and legitimate commercial solicitations via e-mail, your e-mail address is not a private bit of information. By submitting it to e-tailers, by signing up for newsletters or listservs, by posting the address on MySpace or employer’s Web site, or by giving it to the grocer to get online coupons, etc., there is always the chance that the address will be scooped up and passed on to others, over and over and over. There is nothing, then, that would prohibit the government from doing the same thing. On the other hand, the town council member might want to remember that lists of e-mail addresses are public records. Aside from the irritation some citizens might feel at being involuntarily solicited to volunteer, some might be even more irritated to know that the town has created a ready-made solicitation list for any Tom, Dick or Wal-Mart to copy. I’m not qualified to tell you what’s the best public policy, but it does seem more prudent to OFFER the service of receiving newsletters and volunteer-service notices rather than to create one unilaterally. To that end, there IS a relevant FOIA provision found in 2.2-3705.1(10). It says that when the government DOES offer a service for citizens to receive information via e-mail, the e-mail address can be withheld from disclosure IF the citizen asks for it at the time he/she signs up.
Q: If records requested exist on a database that includes private information, what is a reasonable amount of time for the government to charge for redaction of the private information (names of applicants to a Governor’s School)? My school system is charging for 60 hours of work at a rate of about $45.00/hour for “collecting and redacting copies of admissions data.” This seems excessive to me. Also, assuming that 60 hours is reasonable, how many calendar days is considered reasonable for that amount of staff work to respond to a request?
A:Unfortunately, I cannot tell you what a reasonable amount of time is to extract certain information from a database. It really has to do with the type of database and the program used to manage it. For instance, an Excel spreadsheet takes only a few keystrokes to delete columns of information, but a more sophisticated, proprietary database might require significant programming to remove datafields or specific types of information. That said, 60 hours does seem excessive in a gut-reaction kind of way. Make sure they break down the entire expense. But ultimately, only a court can rule on whether the fee charged is reasonable or represents actual cost. If you’re not prepared to go to court for such a determination, the best you can hope for is pressure from the FOI Advisory Council and an appeal to their better natures. As for the number of days they may take to respond to your request, ALL FOIA requests, whether for one sheet of paper or an entire electronic database, must be responded to within five working days. In those 5 days, they must either give you all the records, give you some and withhold others (with exemptions properly notated), withhold all of the records (with exemptions properly notated), let you know that they don’t have the records or tell you that they need an additional seven working days to finish the request. So, if they needed more than five working days to complete your request, they should tell you within those five days that they need an additional seven working days. If they need still more time, they can ask a court for permission, but they should first try to work it out with you directly. (FOIA says in 2.2-3704(C) “Before proceeding with the petition [to ask the court for additional time], the public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested.”) Failure to respond is considered a denial of the request and “shall constitute a violation of this chapter.” 2.2-3704(E).
Q: Must localities provide names (or access to records) of complaints made against homeowners for supposed violations of watering regulations (lawns/cars)? Does a homeowner have the right to know the source of an alleged complaint? If they receive a fine, do they have the right to due process, and to confront their accuser?
A: A few years back, the General Assembly passed 2.2-3705.3(10), an exemption that allowed localities to withhold the “names, addresses and telephone numbers of complainants furnished in confidence with respect to an investigation of individual zoning enforcement complaints made to a local governing body.” The exemption is limited to complaints about zoning ordinances. In 2007, the legislature tried to expand that exemption by allowing localities to withhold the names and addresses of people making complaints about a violation of ANY ordinance. The bill was sent to the FOI Advisory Council for further study, and the council decided to table any further discussion. So, the answer to your question is, as far as I know, yes, a locality would have to provide access to records of complaints made regarding watering regulation violations. Your other questions regarding due process and the right to confront their accusers are beyond the scope of our expertise, as we work primarily with FOIA and access to court records.
Q: We have a town Wireless Broadband Authority. If it goes into closed session for contract negotiations for some new technology, can they make telephone calls to the company they are negotiating the contract with? Or would the company reps have to be present in the closed session?
A: Your question is VERY interesting, and one I haven’t come across. As you’ve mentioned, 2.2-3712(F) says a public body “may permit nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting.” There are also several opinions by both the Attorney General and the FOI Advisory Council that confirm this policy. On the one hand, clearly the company rep would aid the body’s consideration of the topic. On the other hand, the statute speaks of “presence” and “attending,” not “participation” and without references to electronic communication. I’m sure you can imagine our concern as a citizen organization. While most public bodies and officials strive to do the right thing by citizens, there are those who would exploit loopholes or act contrary to the spirit of the law if not the letter of it. In this case, electronic meetings are generally prohibited at the local level, yet in a closed meeting, citizens would have no way of knowing whether an absent member of the public body is getting a call from the board during their discussions. There are no minutes, and the certification coming out of the closed session would still be truthful in saying that only such-n-such issues were discussed. Still, it could be perfectly permissible. And if you choose to go the route of calling outside during the meeting (that is, if it’s impossible for the company rep to attend the meeting in person), I would hope that you would at least disclose this fact on both the agenda and the motion to go into closed session. As you doubtless already know, so many problems can be avoided simply by telling citizens what’s going on.
Q: I was wondering if I could use FOIA to acquire information on the data the county public schools compiled on the physical conditions at the school campuses that they later used to decide to open schools two hours late on Dec. 6. I am not sure whether this information can be obtained and if so I don’t know how.
A: As I often say to our contacts who ask whether they can use FOIA to get certain records, it never hurts to ask! A decision to close two schools two hours early undoubtedly sent parents and staff scrambling, causing upheaval in everyone’s schedules, so it’s the kind of decision that requires explanation. So, make your FOIA request for the data records, and be as specific as possible, including dates. There are several exemptions that have to do with public buildings, but they are to be narrowly interpreted and they do not have to be invoked. Check out 2.2-3705.2 for those exemptions, noting that many of them, even while allowing some information to be exempted, also allow disclosure after a certain period of time or after the occurrence of a specific event. For instance 2.2-3705.2(2) specifically says that while trade secrets in building plans may be exempt, that exemption runs out once the building is complete, and “information relating to the safety or environmental soundness of any building shall not be exempt from disclosure.” Control systems, security systems, surveillance systems, etc., may be exempt, and there’s an exemption for security plans and specific components of school safety audits — 2.2-3705.2(7) — but again, those exemptions include limitations to prevent the wholesale withholding of relevant information. If you are denied a record, remember that the school district MUST cite the relevant portion of FOIA (or other code provision) that allows them to withhold the record. Also, remember that if only PART of a record is exempt, FOIA nonetheless requires the non-exempt portion of the record to be released.