FOI Advisory Council Opinion AO-02-20
AO-02-20
May 25, 2020
Julie Grimes
Via Email
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 messages from February and March 2020, and my conversations with staff of the Office of the State Inspector General in March 2020.
Dear Ms.Grimes:
You have asked for an advisory opinion regarding a response you received from the Office of the State Inspector General (OSIG) for certain case reports. In February 2020, you asked for three final reports from specific cases based on investigations initiated through a call to the State Fraud, Waste and Abuse Hotline. All of the investigations concerned the Virginia Department of Education (VDOE). The initial response from OSIG appears to have been to provide redacted copies of two of the reports and a redacted summary of the third report, copies of which were attached to your email messages. The response cited subdivision 7 of § 2.2-3705.3 of the Code of Virginia as the legal basis for all of the redactions. The redacted summary of the third report stated that it was "provided after the completion of a more detailed official investigative report submitted to you [OSIG]1 on February 13, 2020." You stated that, based on your experience as the former FOIA officer for OSIG, you were surprised that you received a redacted summary of the third report rather than a redacted copy of the final report itself. You replied to OSIG by submitting a revised request for "the final redacted Hotline investigative report regarding the Virginia Department of Education involving substantiated allegations of waste, fraud and abuse completed in calendar year 2020." You then contacted this office about this matter and expressed particular concern regarding the duty to redact public records expressed in § 2.2-3704.01. With your agreement, I contacted staff at OSIG who indicated she would speak with others within the agency then get back to you directly. You provided a copy of the second response from OSIG, which reads as follows: "Based on guidance from counsel, please be advised OSIG has no further responsive records to your request, FOIA 2020-078 Department of Education Hotline Case Reports 17976, 17891 and 18047. OSIG remains steadfast in that what we have provided you is sufficient for your FOIA request, and is consistent and in compliance with Code of Virginia § 2.2-3705.3 [7]." You then followed up on your initial request to this office for a written advisory opinion regarding whether OSIG was in compliance with FOIA when it provided a redacted summary rather than a redacted version of the final report.
Applicable law
The general policy of FOIA expressed in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees." With regard to exemptions, the policy further specifies that "[a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." The policy also provides the following direction: "All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested."
When replying to a records request, subsection B of § 2.2-3704 provides five responses, one of which must be sent within five working days of receiving the request: (1) provide the records, (2) deny the request in its entirety, (3) provide some portion of the requested records while withholding the rest, (4) state that the records cannot be found or do not exist, or (5) invoke an additional seven work days to respond. If records are withheld in whole or in part, the public body "shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records." Regarding redaction, § 2.2-3704.01 provides in full as follows:
No provision of this chapter is intended, nor shall it be construed or applied, to authorize a public body to withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure by this chapter or by any other provision of law. A public record may be withheld from disclosure in its entirety only to the extent that an exclusion from disclosure under this chapter or other provision of law applies to the entire content of the public record. Otherwise, only those portions of the public record containing information subject to an exclusion under this chapter or other provision of law may be withheld, and all portions of the public record that are not so excluded shall be disclosed.
The specific exemption cited in this instance was subdivision 7 of § 2.2-3705.3, which provides in relevant part a discretionary exemption from mandatory disclosure for the following:
Investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by this chapter or any Virginia statute, provided to or produced by or for . . . (iv) the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline or an investigation initiated pursuant to Chapter 3.2 (§ 2.2-307 et seq.) . . .. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person. Local governing bodies shall adopt guidelines to govern the disclosure required by this subdivision.
Regarding the creation of new records, subsection D of § 2.2-3704 provides that "[s]ubject to the provisions of subsection G, no public body shall be required to create a new record if the record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body."2
Analysis
From the initial facts provided, it appears that OSIG had three reports that you requested, and while it provided redacted copies of two of those reports, it provided a redacted summary of the third report rather than providing a redacted copy of the full report. There is no indication that OSIG discussed with you the option of providing a redacted summary rather than the third full report, and in any case, you specifically followed up by asking for the full report. In considering previous situations where a public body created new records in order to respond to a request without first reaching an agreement with the requester, we opined that "if a public body decides to create a new record in response to a request, and would like to charge the requester for the time spent in creating that record, it must first consult with the requester to reach agreement as to the charges."3 In that situation, the public body argued that it had to create a spreadsheet showing salary records because FOIA requires salary information to be disclosed and the public body did not already have a record responsive to the request. In that instance, the dispute was over the charges, as the requester had not agreed to pay for the creation of a new record and so we opined that the public body could not charge for it absent such an agreement. In the facts presented here, it appears that the final report already existed when you made your request, so it is unclear why OSIG made a summary of it rather than providing you with a redacted copy as it did with the other two reports, and there does not appear to be a dispute over charges. In a situation where a public body wishes to create a new record in order to respond to a request, does so within the required five working days response time set out in subsection B of § 2.2-3704, and does not charge the requester, there is nothing wrong with creating a new record. However, creating a new record—even if done on time and for free—does not remove a public body's responsibility to provide other existing public records that are not exempt from disclosure unless the requester agrees to accept the new record in place of the other existing public records. As there was no such agreement here, based on the facts as you presented them, it would appear that OSIG's decision to provide you with a redacted summary in place of the final report (which we presume would also be redacted pursuant to the same exemption, as discussed below) is not in compliance with FOIA's general requirements to provide existing public records.
Turning to the redactions that were made in the records you were provided, you do not argue that subdivision 7 of § 2.2-3705.3 does not apply or that it was used improperly regarding the redacted records you received. Instead, your assertion would be that the exemption was improperly used to withhold the third final report in its entirety, rather than by providing a redacted copy of that full report. You first pointed out your concern that OSIG was ignoring the provisions of § 2.2-3704.01, which provides among other things that "[a] public record may be withheld from disclosure in its entirety only to the extent that an exclusion from disclosure under this chapter or other provision of law applies to the entire content of the public record." Additionally, you included correspondence you had with Megan Rhyne, Executive Director of the Virginia Coalition for Open Government, in which Ms. Rhyne pointed out that the cited exemption itself states that "[i]nformation contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators," thus setting out the rule to provide redacted copies of records of completed investigations rather than providing that such records be withheld entirely. Reading all of the foregoing provisions together, it is clear that when an investigation subject to subdivision 7 of § 2.2-3705.3 has been completed and a final report has been created, that report must be produced in response to a valid FOIA request, but may be redacted as set forth in the exemption. Therefore, it again appears that based on the facts you presented, OSIG should have produced a redacted copy of the third final report in response to your request.
However, note the exact language of OSIG's second reply stating that "OSIG has no further responsive records to your request." As stated above, the redacted summary report that was given to you indicated that it was "provided after the completion of a more detailed official investigative report submitted to [OSIG] on February 13, 2020." These two statements appear to be contradictory in that the first appears to be saying that OSIG only has the summary version of the third final report, and therefore does not have a copy of the full report to give to you, while the second statement, taken from the summary itself, appears to indicate that OSIG does have a copy of the full final report. Unfortunately, these statements thus present a question of fact that cannot be resolved by this office: Does OSIG actually have the full final report? If it does, then FOIA would require that OSIG provide to you a copy of that report in response to your request, although it may be redacted as appropriate. However, if OSIG does not have a copy, then it would not be responsible to provide you with a copy of a record of which it is not the custodian, but pursuant to subdivision B 3 of § 2.2-3704, it should have clearly stated that it does not have the record and given you contact information if it knew that another public body had the record.4
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
1. Note that the name of the recipient of the redacted summary was one of the items redacted, but the summary report was sent to OSIG from VDOE. Of the other two final reports, one was also a report apparently from VDOE sent to OSIG that was similarly redacted regarding the name of the recipient. The other appears to be a report from OSIG sent to the Secretary of Education (whose name was not redacted).
2. Subsection G of § 2.2-3704 concerns electronic records and is not at issue for purposes of this opinion.
3. Freedom of Information Advisory Opinion 04 (2015) (quoting Freedom of Information Advisory Opinion 04 (2004)).
4. Subdivision B 3 of § 2.2-3704 provides for the following response: "The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body." In this instance, the summary report was sent on VDOE letterhead, so it would follow that if OSIG did not have the full report, VDOE would likely have it.
