FOI Advisory Council Opinion AO-01-23

AO-01-23

July 21, 2023

David Kinder
Pulaski County, Virginia

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 electronic mail message and attachments from December 14 and December 28, 2022.

Dear Mr. Kinder:

You have submitted four questions regarding whether the Town of Dublin has correctly claimed subsection D of § 15.2-2907 of the Code of Virginia as the basis for denying access to certain records you requested from the Town.

Factual Background

As background, you provided several pieces of correspondence sent between you and the town attorney, who also serves as the Freedom of Information Act (FOIA) officer for the Town, two announcements published in the local newspaper, and a screenshot of the Town's website. The first announcement, which appeared in the local newspaper, The Patriot, on September 14, 2022, stated that the town council "has developed a plan for a jurisdictional boundary adjustment and settlement with Pulaski County, which plan [sic] will enable the Town of Dublin to extend its boundaries and thus better serve the residents and businesses within the proposed adjusted boundaries." Subsequently, on the next day, September 15, 2022, another announcement appeared in The Patriot that stated that the town council "has elected to discontinue its recently announced plans to seek a consensual boundary line adjustment agreement with the County of Pulaski." Additionally, the press release issued by the Town on September 15, 2022, stated that: "The previously announced public information sessions of the town council [of Dublin] regarding such potential agreement have been cancelled."

On November 2, 2022, you submitted to the town attorney a request for the following seven specific items of information under Virginia FOIA:

1. All correspondence between Town of Dublin officials (including but not limited to Mayor, Town Council members, Town Manager, Town Attorney, Town Employees, or contracted staff) and County of Pulaski officials (including but not limited to County Administrator, Board of Supervisors, County Attorney, County Employees, or contracted staff) regarding the previously proposed 'Consensual Boundary Line Adjustment between the Town of Dublin and the County of Pulaski.'

2. All correspondence between Town of Dublin officials (including but not limited to Mayor, Town Council members, Town Manager, Town Attorney, Town Employees, or contracted staff) and the Commonwealth of Virginia Department of Housing and Community Development regarding the previously proposed 'Consensual Boundary Line Adjustment between the Town of Dublin and the County of Pulaski.'

3. All prepared materials created to support the proposed public information sessions previously scheduled for 09/20/2022, 09/21/2022, and 09/22/2022 before they were cancelled on 09/15/2022.

4. Invoices, bills, or equivalent paid by the Town of Dublin to the County of Pulaski (or possibly directly to the Pulaski County Public Service Authority (PSA)) regarding the monthly purchase of water and/or sewer services for the previous 24 months.

5. Invoices, bills, or equivalent issued by the Town of Dublin to the consumers of water and/or sewer services provided by the Town of Dublin for the previous 24 months. I understand this information may need to be sanitized or redacted for privacy. If this information cannot be shared, an aggregated summary will be an acceptable alternative, provided it includes the following data points at a minimum:

a. Monthly total of water gallons used by residential consumers classified as 'in town*' and number of distinct consumers in this category, and

b. Monthly total of water gallons used by residential consumers classified as 'out of town*' and number of distinct consumers in this category, and

c. Monthly total of water gallons used by commercial consumers classified as 'in town*' and number of distinct consumers in this category, and

d. Monthly total of water gallons used by commercial consumers classified as 'out of town*' and number of distinct consumers in this category, and

e. Monthly total of water gallons used by industrial consumers classified as 'in town*' and number of distinct consumers in this category, and

f. Monthly total of water gallons used by industrial consumers classified as 'out of town*' and number of distinct consumers in this category, and

g. Monthly total of consumers who were billed the 'infrastructure rehabilitation fee' (whether residential, commercial, or industrial).

*All classifications per the Town of Dublin's definitions for billing purposes

6. Detailed description and dates of work-orders (or equivalent) completed by the Town of Dublin in the previous 24 months, specifically regarding maintenance, improvements, and repairs to waterlines and/or associated infrastructure owned and/or operated by the Town of Dublin.

7. All records indicating names and dates of completion of the required FOIA training for each elected official, constitutional officer, and FOIA officer of the Town of Dublin, dating back to the minimum retention period of 5 years.

The town attorney responded in a letter dated November 10, 2022, asserting that responses to your requests nos. 1, 2, and 3 were being withheld on the following basis:

[p]ursuant to the express provisions of Virginia Code § 15.2-2907.D, all correspondence among the involved parties and personnel regarding the previously proposed 'Consensual Boundary Line Agreement between the Town of Dublin and the County of Pulaski' are exempt/excluded from the Virginia Freedom of Information Act, as the formerly contemplated boundary line adjustment fell under the jurisdiction of the Commission on Local Government ('CLG'), even though neither the Town of Dublin nor the County of Pulaski made any formal submission to CLG before the Town elected to terminate the action.

This letter stated that the records responsive to your request no. 4 were provided and enclosed within.

In regards to your request no. 5, the town attorney requested additional time to compile records applicable to "this voluminous records request," and pursuant to subsection H of § 2.2-3704, notified you that the cost to fulfill this request would likely exceed the statutory threshold of $200. Furthermore, the town attorney made suggestions to limit, at least initially, the period of time covered by the requested records. Regarding your request no. 6, the town attorney notified you that the "requested documentation is being compiled, but will take additional time due to the long time period of the request." As for your request no. 7, the town attorney stated that the "provisions of Virginia Code § 2.2-3704.3 regarding FOIA training did not take effect, by express provision of the act creating that section, until July 1, 2020; therefore, at most only 2 years records regarding 'training of elected local officials' would be available." The letter stated that a copy of the FOIA training records of the town council for 2020 were enclosed within. The town attorney informed you that all members of the town council were scheduled to receive their biennial FOIA training on November 17, 2022, which he would conduct, and he invited you to attend.

On November 14, 2022, you sent a letter to the town attorney expressing your disagreement to the cited exemption and use of subsection D of § 15.2-2907 for not releasing the records responsive to your requests nos. 1, 2, and 3. You acknowledged that you would accept the town attorney's recommendation to limit the period of time covered by the records requested in your requests nos. 5 and 6 and requested information on how to make the down payment deposit of $200 since it was estimated your requests would exceed that threshold. Moreover, you made several claims that the town council had failed to comply with FOIA requirements to publish a statement of rights and responsibilities pursuant to § 2.2-3704.1 and to publish meeting notices pursuant to subsection C of § 2.2-3707.

In your letter dated December 6, 2022, you wrote the town attorney following up on the status of the requests you had submitted as, according to your calculations, the response deadline had expired. You continued to express your position and dispute the use of the exemptions cited by the town attorney for not releasing the records requested in your requests nos. 1, 2, and 3. You requested information again on how to submit the down payment deposit of $200 as required.

On December 9, 2022, the town attorney sent you a letter that asserted that his "denial of your initial and subsequent requests, as fully exempt from disclosure/production pursuant to Virginia Code § 15.2-2907.D, remains/stands." Moreover, he stated that "[c]orrespondence and materials arising from and/or pertaining in any way to to [sic] 'meetings', which term includes any and all considerations, deliberations, [and] discussions of the subject are inextricable from meetings."

The town attorney further stated that "any and all communications not made in an open session of a 'governing body' by that municipality's attorney to or concerning his client and the client's matters, together with the attorney's work product for/concerning such client, are exempt/excluded from FOIA and thus disclosure pursuant to Virginia Code § 2.2-3705.1.2 and, more importantly and broadly, by the common law doctrine of attorney-client privilege."

On December 13, 2022, you sent a letter to the town attorney stating "[t]hat letter (dated 06 DEC 2022) may be disregarded since you have now responded. Please allow today's letter (dated 13 DEC 2022) to serve as my latest correspondence." In this letter, you continued to dispute the use of the cited exemption of subsection D of § 15.2-2907 and the application of attorney-client privilege and work product exemptions regarding the denial to release the requested records. Furthermore, you expressed displeasure at the inability to make FOIA requests via "a digital communications route" and to receive the requested documents in an electronic format.

On December 22, 2022, the town attorney sent a letter reaffirming his position that your requests nos. 1, 2, and 3 "remain denied on the grounds previously, fully, and correctly stated." In regards to your requests nos. 5 and 6, the town attorney stated that "after your initial request for 2 years of information, you subsequently agreed to an initial submission of only 2 months' worth." He informed you that "Town personnel prepared 2 years' worth, on a month by month basis, anyway, thus the number of pages/size of stack and the total cost therefor. If you still will accept only 2 months' worth, then please so advise, and specify the months that you want; July 2020 through June, 2022 [sic] are presently available." He further informed you that "[a]s to cost, for 2 months of information, 1/12 of $996.47, i.e., $83.04, seems appropriate. If you desire additional months, then the cost for each month will be $41.52." The town attorney did not address the availability of providing the requested records in an electronic format.

Questions Presented

You have submitted the following four questions to this office:

Question No. 1

Regarding your requests nos. 1, 2, and 3, you have asked: "Is the Town of Dublin correctly claiming an exemption under VA Code § 15.2-2907(D) for the records I'm requesting?"

Subsection D of § 15.2-2907 states that:

Except for any hearing or meeting specifically required by law, Chapter 37 (§ 2.2-3700 et seq.) of Title 2.2 shall not be applicable to the Commission nor meetings convened by members of the Commission, its employees, or by its designated mediators with local governing bodies or members thereof, nor shall such chapter be applicable to meetings of local governing bodies, or members thereof, held for purpose of negotiating any issues which are or would be subject to the Commission's review. Offers and statements made in any negotiation or mediation activity conducted under the direction of the Commission shall not be recorded in any report issued by the Commission, nor shall they be introduced in evidence in any subsequent court proceeding by the Commission or any other party.

As stated in a prior advisory opinion that addressed FOIA's meeting requirements in light of subsection D of § 15.2-2907:

If this section applies, therefore, FOIA 'shall not be applicable.' By its own terms the section applies to meetings of local governing bodies, or members thereof, held for purpose of negotiating any issues which are or would be subject to the Commission's review. It would be beyond the statutory authority of this office to offer an opinion regarding what matters are subject to the Commission's review.1

Note that subdivision 4 d of § 15.2-2903 states that, among other powers and duties, the Commission on Local Government (the Commission) shall have the power and duty "[t]o settle or adjust boundaries between localities." Therefore, it would appear on its face that a "consensual boundary line adjustment" between the Town and the County would be a matter that falls under the Commission's purview, and subsection D of § 15.2-2907 would apply to this transaction.

Subsection D of § 15.2-2907 excludes the Commission from the operation of FOIA entirely "[e]xcept for any hearing or meeting specifically required by law." Therefore, on its face, the Commission is not required to comply with FOIA in regard to public meetings, public records, or other FOIA requirements (such as posting a rights and responsibilities statement, designating a FOIA officer, etc.). The first sentence of subsection D also states that FOIA "shall not be applicable to" certain meetings:

meetings convened by members of the Commission, its employees, or by its designated mediators with local governing bodies or members thereof, nor shall such chapter be applicable to meetings of local governing bodies, or members thereof, held for purpose of negotiating any issues which are or would be subject to the Commission's review. [Emphasis added.]

However, while this provision is explicit in stating that FOIA is inapplicable to these types of meetings, it does not say anything on its face about access to public records of local governing bodies or members thereof under FOIA. With regard to records, subsection D of § 15.2-2907 provides that "[o]ffers and statements made in any negotiation or mediation activity conducted under the direction of the Commission shall not be recorded in any report issued by the Commission, nor shall they be introduced in evidence in any subsequent court proceeding by the Commission or any other party."

The Supreme Court of Virginia has set out rules of statutory construction and interpretation that "[i]n construing statutory language, we are bound by the plain meaning of clear and unambiguous language. Where the General Assembly has expressed its intent in clear and unequivocal terms, it is not the province of the judiciary to add words to the statute or alter its plain meaning."2 The Supreme Court of Virginia also stated as follows:

While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed. 3

Applying these rules, it is clear on its face that the first sentence of subsection D of § 15.2-2907 exempts the Commission itself and certain meetings held by others from the operation of FOIA. However, the second sentence addressing "offers and statements" did not mention FOIA at all but instead appears on its face to restrict the use of these records in reports issued by the Commission and as evidence in court proceedings. Because the General Assembly addressed FOIA in the first sentence, it is clear that it was aware of FOIA's requirements when it enacted subsection D of § 15.2-2907. It logically follows that if the General Assembly had intended to exempt relevant records that fell under the Commission's purview from disclosure under FOIA, it would have chosen language to do so explicitly. However, the plain language of this statute does not do so, and following the maxims of statutory construction set out by the Supreme Court of Virginia, we cannot read a FOIA exemption to exist where it is not evidenced by the plain language of the statute. Therefore, it does not appear that the records you requested in your requests nos. 1, 2, and 3 were properly withheld pursuant to subsection D of § 15.2-2907.

Question No. 2

Next, in regards to your requests nos. 1, 2, and 3, you have asked: "Is the Town of Dublin correctly claiming the records I'm requesting are 'fully exempt' on the grounds of attorney-client privilege or attorney work product?"

It is understood that matters come before the Commission that generally do involve legal advice, so it is likely that the attorney-client privilege would apply to at least some portions of those records, if not all of them. The Supreme Court of Virginia ruled on the use of the attorney-client privilege in the FOIA context in the case Bergano v. City of Virginia Beach (2018). As stated in Bergano, "a court's in camera review of the records constitutes a proper method to balance the need to preserve confidentiality of privileged materials with the statutory duty of disclosure under VFOIA."4 As the FOIA Council has no authority to make binding factual determinations, to compel the production of records, or to review them under seal, only a court can make a ruling on whether any particular withholding is proper.5

The attorney-client privilege is one of the oldest recognized legal privileges in our jurisprudence system. The use of this privilege "is governed by the principles of common law as interpreted by the courts of the Commonwealth."6 On previous occasions, this office has opined that the following six elements must be present for this privilege to be invoked legally: communications "(i) from a client, (ii) to the client's lawyer or lawyer's agent, (iii) relating to the lawyer's rendering of legal advice, (iv) made with the expectation of confidentiality, (v) not in the furtherance of a future crime or tort, and (vi) absent waiver of the privilege."7

As noted "in many prior opinions, this office has no investigative powers and is not a trier of fact", and if there is a factual dispute about the use of the attorney-client privilege, only a court can make a binding determination on whether an exclusion was utilized properly.8 The Supreme Court of Virginia previously held that the attorney-client "privilege is an exception to the general duty to disclose, is an obstacle to the investigation of the truth, and should be strictly construed."9 Furthermore, the public body bears the burden to prove the exemption pursuant to subsection E of § 2.2-3713, which states that: "[i]n any action to enforce the provisions of this chapter, the public body shall bear the burden of proof to establish an exclusion by a preponderance of the evidence." Therefore, reading these provisions together with the fact that the records in question are not before us, we cannot offer any opinion on whether these records were properly withheld as attorney-client privileged.

Question No. 3

For your requests nos. 5 and 6, you have asked: "Is the Town of Dublin permitted to autonomously select the use of a specific delivery method when providing the information I requested?"

Pursuant to subsection A of § 2.2-3704, it is the requester's option either to inspect or to obtain copies of requested records. Additionally, subsection G of § 2.2-3704 provides that:

When electronic or other databases are combined or contain exempt and nonexempt records, the public body may provide access to the exempt records if not otherwise prohibited by law, but shall provide access to the nonexempt records as provided by this chapter.

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. [Emphasis added].

Thus, 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. Therefore, the answer to this question depends on what format(s) the Town regularly uses for these records, and, unfortunately, as this office does not have any specific knowledge of those facts, we cannot provide a more specific answer.

Question No. 4

Finally, you asked the following questions: "Do FOIA laws provide any mechanism to identify and correct deficiencies of a public body pertaining to the 'requirements' of FOIA itself and not necessarily relating to a specific request or record? I understand that a writ of mandamus is required to seek relief if a specific response is refuted, but is that same mechanism the only remedy to alert the governing body of their shortcomings and force an action to bring them into compliance?"

The FOIA Council encourages requesters and public bodies to negotiate and collectively work toward the common goal of providing public records at a reasonable cost to both parties. However, it is recognized that in some circumstances this is not entirely possible. Virginia law provides that if a citizen's FOIA rights have been violated, the statutory remedy available, pursuant to § 2.2-3713, is "filing a petition for mandamus or injunction" in either general district or circuit court. The filing of a petition for mandamus or injunction are "the only two forms of relief available" under FOIA.10

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Alan Gernhardt
Executive Director

Joe Underwood
Senior Attorney

1. Freedom of Information Advisory Opinion 04 (2009).
2. Hawkins v. Town of South Hill, 878 S.E.2d 408, 412 (Va. 2023, 2022 Va. LEXIS 72, Record No. 210848) (citations omitted).
3. Freedom of Information Advisory Opinion 04 (2020) (quoting Transparent GMU v. George Mason University, 298 Va. 222, 240-241, 835 S.E.2d 544, 553 (Va. 2019) (internal citation omitted).
4. Bergano v. City of Virginia Beach, 296 Va. 403 p.6, 821 S.E.2d 319, 2018 Va. LEXIS 177, 2018 WL 6380709 (2018).
5. Freedom of Information Advisory Opinion 09 (2005).
6. Freedom of Information Advisory Opinion 06 (2018).
7. Freedom of Information Advisory Opinions 25 (2003), 04 (2011), and 06 (2018).
8. Freedom of Information Advisory Opinions 09 (2005) and 03 (2016).
9. Walton v. Mid-Atlantic Spine Specialists, 280 Va. 113, 122; 694 S.E.2d 545, 549 (Va. 2010) (citing Commonwealth v. Edwards, 235 Va. 499, 509; 370 S.E.2d at 301, 1988 Va. LEXIS 93, 4 Va. Law Rep. 3003).
10. Transparent GMU v. George Mason Univ., 97 Va. Cir. 212, 2017 Va. Cir. LEXIS 330 (2017).