FOI Advisory Council Opinion AO-03-23
AO-03-23
December 5, 2023
Amanda Locklear
Haymarket, Virginia
Request received 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 email of February 27, 2023.
Dear Ms. Locklear:
You have requested an advisory opinion from the Virginia Freedom of Information Advisory Council on whether a custodian of record complied with the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) regarding a request you made for electronic communications on the Prince William County Public Schools email server.
Factual Background
As background information, on January 5, 2023, at 11:47 a.m., you submitted a records request via email to the Prince William County school system (School System) for "electronic communications on the Prince William County Email Server" with specific criteria to be used as a search query. Specifically, you requested "electronic communication (internal emails) that are not maintained as part of my son's educational record." You further clarified that "to minimize the administrative burden and financial costs associated with the production of emails, I would like to provide the following criteria to query [the] email server: Date Range - September 1, 2022 - January 3, 2023." You also included three email addresses with five keywords and names, for use in the search. You stated that you were "willing to pay fees for this request up to a maximum of $500.00." You further qualified your request by expressing that "[i]f you estimate that the fees will exceed this limit, please inform me first before filling my request" and provided that the information may be sent via "U.S. mail, email, or in person, but I would prefer email." The FOIA Officer for Prince William County Public Schools (FOIA Officer) responded on the same day at 3:35 p.m. acknowledging that your request had been received and was "being processed." She also wrote that she would "let you know if the cost exceeds $200, and will notify you of the required deposit if that is the case, or if I need more information or clarification."
On January 6, 2023, at 10:07 a.m., the FOIA Officer communicated the following to you: "After communicating with staff responsible for providing the responsive records you are asking for, it was brought to my attention that the search cannot be conducted with 'potential participant names and/or email addresses' as you stated." She further requested for you to "provide the specific staff emails and names you wish to have searched." You responded on the same day at 10:58 a.m. with the names and email addresses of six staff members.
On January 12, 2023, at 3:13 p.m., the FOIA Officer emailed you that she had obtained from the Information Technology (IT) Department the emails of the six staff members you had specified from your requested date range of September 1, 2023, to January 3, 2023, and provided you a cost estimate of $269.62 for fees associated only with the labor costs in "reviewing, redacting as necessary, and producing the applicable records." The FOIA Officer stated that she was reviewing "a few hundred emails combined, between all staff, and review for applicable student information must be redacted when and if other children are being included or mentioned in the staff's emails." She also stated that she was "only charging you for 3 hours, although I have already spent over 5 hours and all emails have not been reviewed yet." She further notified you that a $200 deposit or payment of the total amount of $269.62 was required "if you want to proceed with your request at this time." You responded to her on the same day at 3:35 p.m. that you appreciated her and her time and to "proceed with the request" and made arrangements to provide the required payment of $269.62.
On January 13, 2023, at 9:47 a.m., you emailed the FOIA Officer that you had dropped off the check in person at the Edward L. Kelly Leadership Center. The FOIA Officer responded on the same day at 12:53 p.m. that your check had been received with full payment of $269.62 and that she "will proceed with processing your request." She also informed you that "it is not practically possible to provide the requested information within the five (5) working day period of the original request" and notified you that "an additional seven (7) working days in which to respond to your request as provided by Virginia Code 2.2-3704(B)(4)" was required. In your email to her on the same day at 1:06 p.m., you acknowledged invocation of the additional time required to fulfill your request.
On January 25, 2023, at 3:47 p.m., the FOIA Officer emailed you that "[w]e are providing this response consistent with Virginia Code § 2.2-3704" along with access to the requested records via an enclosed hyperlink. Since the provided hyperlink was set to expire on February 1, 2023, her email noted that "[d]ue to the large number or records being provided to you, if you need additional time to download or review beyond the due date, please do not hesitate to contact me so I may grant you access." Moreover, the FOIA Officer's response stated that "[a] separate email will be sent to you containing the password to access this link." Her response also stated:
In accordance with Virginia Code § 2.2-3705.4, §§ 22.1-287.02 [et seq.], and the Family Educational Rights and Privacy Act, counts fewer than 10 are exempt from release in order to protect student-identifiable information; therefore, these counts have been redacted, as well as other student's names, and their legal guardians [sic] email addresses which were included in several emails, and attachments, amongst those staff members you provided.
In addition, the FOIA Officer requested that "[f]or accountability purposes, please acknowledge receipt of this email." On the same day at 3:54 p.m., you emailed the FOIA Officer thanking her for her assistance and confirming receipt of her email but acknowledging that you had "not received the password yet though [sic]." You asked for clarification as to the meaning of the statement she provided regarding "counts fewer than 10 are exempt from release." You further asked, "Does this mean 10 emails are exempt from release all together?" The FOIA Officer responded on the same day at 4:03 p.m. that she had "sent the password email at 3:49. Please let me know if you still have not received it." She also wrote that:
What the statement below means, is that in some emails the teachers had different documents attached, of say a class list, so all the student names, their student ID numbers, grades, or other information considered protected student records, has been redacted in accordance to those FOIA and FERPA exemptions. In regard to mentioning any count under 10, applies to any time in an attachment the teacher(s) tracked how a number of students in his class. It is not to be interpreted as there only being 10 emails, there are several hundred emails for you to review from all staff as requested.
You emailed the FOIA Officer on the same day at 5:44 p.m. thanking her for the clarification and informing her that you had received the password email. You also asked, "By any chance do you still have the hard copies? May I come by the Kelly Leadership building and pick them up if you do?"
On January 26, 2023, the FOIA Officer responded via email at 8:13 a.m. as follows: "The responsive records provided to you were never hard copies, all of the review and redacting was done electronically over a period of days and took many hours. There was never a print and per page charge included in your estimate. I do not have any hard copies."
Apparently, you spoke with the FOIA Officer on the phone later on the same morning and, during the conversation, said that in some cases you had "more emails than I had received from the request." You noted that you had only received "a sent folder for one of the employees that contained four emails" and asked "why my FOIA request did not include delete folders or any other folders that contained the query information?" According to you, the FOIA Officer said during this phone call that she had realized this as well and said "she would reach out to the IT Department for more information."
You emailed the FOIA Officer on the same day at 11:44 a.m. thanking her for the phone call that morning and said that after having "a chance to go through some of the documents again," you noticed the name of a child who is the son of a teacher at the school being mentioned in some of the records and noted that his name "needs to be redacted." You also inquired about an email sent by one of teachers/administrators to an unfamiliar person's email. You stated that you did not know who this person was receiving these emails but that this "email address shows up on various documents throughout," and you believed that "it is supposed to be redacted." You claim that you were "not told my son's information was sent to someone outside of the school." Additionally, you stated, "There are missing emails." You claimed that you had "some [emails] that are not there," apparently indicating you had obtained other copies of emails that were responsive to your request that were not included with the copies provided by the School System. You wrote, "I noticed the folders say Inbox and Sent under each individual. Are deleted emails included as well?" You also wrote, "If you go into [teacher/administrator A's] file there is only a folder that says sent. However, [teacher/administrator B's] sent folder contains emails that she has forwarded to [teacher/administrator A]." You asked, "Should those show in an inbox folder for [teacher/administrator A] or have they been deleted and not retrieved in the search? This was the easiest exemple [sic] to use."
On February 1, 2023, at 9:54 a.m., you emailed the FOIA Officer once again because you "wanted to check back with [her] regarding my request for internal email communication on the server from January 5, 2023." You asked whether she was "able to find out why the one drive documents [sic] did not contain emails from any other folder besides the inbox or sent folder?" You also asked, "Is this FOIA request considered fulfilled and closed on your end?" You stated that you had yet to receive a reply directly from the FOIA Officer.
You stated that you reached out to the Office of the Associate Superintendent for Special Education for the School System for assistance on February 14, 2023, and received a response via email on February 15, 2023, at 9:37 a.m. In her email, the administrative assistant for the Associate Superintendent for Special Education said that she had spoken with the FOIA Officer "who confirmed that she has released all records that the IT Department provided in response to your FOIA request." The administrative assistant added, "If you have questions that are specific to special education services or staff, please let me know and I will find the appropriate person to get you the answers you need." You responded via email to the administrative assistant on the same day at 10:11 a.m. thanking her for the "follow up."
Analysis
In summary, you have requested guidance from our office pertaining to the interpretation and application of FOIA regarding a specific records request that you submitted to the School System on January 5, 2023. In the request email to our office, you stated that you feel that in this instance "there might be disconnect here pertaining to the interpretation and application of FOIA" and would like a written advisory opinion regarding what has transpired. You also have asked that "if there are violations, what remedies are available[?]" You provided our office with "all email communication with the FOIA Officer regarding [your] request and the email from the Associate Superintendent's Office." You have asked whether a FOIA Officer should respond "to an email follow up regarding a FOIA request" or "is no response considered appropriate once information is sent?"
You stated that your "request was for electronic communications on the Prince William County Email Server with specific query information" and that you "received only inbox and sent box folder information." You stated that "upon downloading and reviewing, I realized what I received was incomplete; emails were missing, and the file contained only inbox and sent box folders from Microsoft Office." You also asked, "Does this constitute withholding records that are not exempt?" In addition, you asked, "If IT did not provide the required information to completely respond to the FOIA request[,] what actions should be taken and who is responsible for taking those actions?" You stated that it was your understanding that "[d]epartments and individuals who are not responsive, delay, and/or withhold information for release will receive a letter of non-compliance from the FOIA Officer."
FOIA policy in § 2.2-3700 of the Code of Virginia provides that: "All public records and meetings shall be presumed open, unless an exemption is properly invoked." The policy further states that:
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any 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.
Subsection B of § 2.2-3704 provides that requests "for public records shall identify the requested records with reasonable specificity." In this matter, it appears that, after minimal discussion with the FOIA Officer, you provided sufficient criteria with reasonable specificity, such as the names of six individuals, email addresses, and date range, to be used as a search query for the electronic communications information you sought.
Upon receipt of a valid FOIA request, a public body, as defined in § 2.2-3701, shall respond, as provided in subsection B of § 2.2-3704, "promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester" or respond with one of the four responses set out in in subsection B. Subsection E of § 2.2-3704 provides that "[f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter." It appears that your initial request was made on January 5, 2023, but as it was written, the School System was unable to perform the necessary search to find the records. After further communication, your request was clarified on January 6, 2023, the School System notified you on January 12, 2023, that deposit or payment of the total amount of the fees associated with fulfilling your request was required, and the School System invoked on January 13, 2023, an additional seven working days to respond to your request. After the invocation of the additional seven working days provided by subdivision B 4 of § 2.2-3704 and a determination pursuant to subsection H of § 2.2-3704 that a deposit for estimated fees in excess of $200 was required, the FOIA Officer appears to have responded to your request in accordance with the timelines and parameters established under FOIA. The email communications sent and received and phone calls made and received between the FOIA Officer and yourself appear to have been prompt, almost immediate in some instances, and courteous as noted in the records provided. For the most part, except for your request for hard copies of the emails at the end of the process and perhaps an unclear response to one of your inquiries, there appears to have been clear and considerate communication exchanged between both parties without any adversarial posturing.
Subdivision B 1 of § 2.2-3704 provides that the custodian, if withholding the entirety of records requested, "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." If the requested records are being provided in part and are being withheld in part, subdivision B 2 of § 2.2-3704 provides that the custodian "shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records." Moreover, § 2.2-3704.01 provides that:
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.
For records containing both excluded and nonexcluded information, pursuant to § 2.2-3704.01, the custodian is required to review the requested records to ensure the release of information that is not exempt while also deciding whether to release information that is subject to any discretionary exemption and withholding any information that is prohibited from release. In a prior advisory opinion, this office opined that if the requested records are within the terms of an exemption and the custodian elects to utilize his discretion provided by the exemption, then the records at issue may be properly withheld from release to the public as long as the custodian identifies "with reasonable particularity the volume and subject matter of withheld records, and cite[s], as to each category of withheld records, the specific Code section that authorizes the withholding of the records."1
In this matter, the custodian released the requested records in part and withheld those portions of the records that she deemed to be exempt. The FOIA Officer acknowledged in her January 25, 2023, email that she was providing the requested records "consistent with Virginia Code § 2.2-3704" but "in accordance with Virginia Code § 2.2-3705.4, §§ 22.1-287.02 [et seq.], and the Family Educational Rights and Privacy Act [FERPA], counts fewer than 10 are exempt from release in order to protect student-identifiable information." After you inquired further as to the meaning of this statement, the FOIA Officer clarified that:
What the statement below means, is that in some emails the teachers had different documents attached, of say a class list, so all the student names, their student ID numbers, grades, or other information considered protected student records, has been redacted in accordance to those FOIA and FERPA exemptions. In regard to mentioning any count under 10, applies to any time in an attachment the teacher(s) tracked how a number of students in his class. It is not to be interpreted as there only being 10 emails, there are several hundred emails for you to review from all staff as requested.
The FOIA Officer declared that this information was withheld "to protect student-identifiable information" and "therefore, these counts have been redacted, as well as other student's names, and their legal guardians [sic] email addresses which were included in several emails, and attachments, amongst those staff members you provided." Whether individual students could be identified if the records had been released without redactions is a matter only a court may decide, as this office does not have authority to order the production of records or rule on disputed facts. Therefore, given the background provided and without additional facts to the contrary, it would appear that the FOIA Officer acted appropriately in withholding exempt information concerning identifiable individual students.
Our office acknowledges the difficulty for a requester regarding the uncertainty that the custodian has provided all applicable records as requested. In most cases, a requester does not know whether the custodian is providing all of the requested information and is complying with FOIA. In a prior advisory opinion, this office addressed this concern when stating that:
Considering the policy of FOIA, the legal duties it imposes, and the presumption that public officials will obey the law in carrying out their duties, therefore, it must be presumed that while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith.2
Accordingly, subsection C of § 2.2-3704.2 requires local public bodies to provide "the name and contact information of the public body's FOIA officer to whom members of the public may direct requests for public records and who will oversee the public body's compliance with the provisions of this chapter." Moreover, subsection E of § 2.2-3704.2 provides that:
Any such FOIA officer shall possess specific knowledge of the provisions of this chapter and be trained at least once during each consecutive period of two calendar years commencing with the date on which he last completed a training session by legal counsel for the public body or the Virginia Freedom of Information Advisory Council (the Council) or through an online course offered by the Council. Any such training shall document that the training required by this subsection has been fulfilled.
As such, a designated FOIA officer is required to obtain the proper training on FOIA and adhere to his duty in providing the appropriate records in accordance with the law. The issue of determining whether a FOIA officer has received the required training in accordance with the law may be verified simply by submitting a request to the custodian for copies of the FOIA officer's training records.
You said that some information was "incomplete" and that "emails were missing, and the file contained only inbox and sent box folders." In particular, you inquired on more than one occasion whether the provided records included information contained in "delete folders." Additionally, you claim that the FOIA Officer did not answer this question or respond to your inquiries about whether this FOIA request was "considered fulfilled and closed on [their] end" after the records were provided. Addressing this last concern first, "FOIA applies to requests for public records, not requests for information or for answers to questions."3 FOIA does not require a custodian to answer questions, grant interviews, or provide explanations. "FOIA only requires a public body to provide access to public records of which it is the custodian."4
On the issue of whether the FOIA Officer and the custodian failed to answer your inquiries about potentially unreleased information from the teachers' "delete folders," it appears that there may have been some miscommunication. The administrative assistant for the Associate Superintendent for Special Education said that she had spoken with the FOIA Officer "who confirmed that she has released all records that the IT department provided in response to your FOIA request." The custodian and its FOIA Officer appear to assert that they have provided all of the requested information except for those portions of the records specifically withheld because they contain exempt student-identifiable information. From your perspective, it appears that they did not address specifically your inquiry about any information from the "delete folders" and may not have provided all of the requested information as required by FOIA. Thus, there appears to be a factual dispute concerning whether you believe the custodian and FOIA Officer complied with FOIA.
On prior occasions, our office has opined that "[i]f a factual dispute about the content or purpose of the records exists, a court of law is the appropriate place to make any necessary determinations of fact."5 The Supreme Court of Virginia has stated that "as a threshold matter, 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."6
We next address your inquiries of whether the custodian provided the required information in full and "what actions should be taken and who is responsible for taking those actions?" If you believe that your FOIA rights have been violated or the custodian or FOIA Officer has not performed in accordance with the law, the statutory remedy, as provided in § 2.2-3713, is for a person to file a petition for mandamus or injunction in either general district or circuit court (petitioner's choice). Subsection C of § 2.2-3713 provides that:
Notwithstanding the provisions of § 8.01-644, the petition for mandamus or injunction shall be heard within seven days of the date when the same is made, provided the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing. However, if the petition or the affidavit supporting the petition for mandamus or injunction alleges violations of the open meetings requirements of this chapter, the three-day notice to the party against whom the petition is brought shall not be required. The hearing on any petition made outside of the regular terms of the circuit court of a locality that is included in a judicial circuit with another locality or localities shall be given precedence on the docket of such court over all cases that are not otherwise given precedence by law.
In addition, subsection D of § 2.2-3713 provides that:
The petition shall allege with reasonable specificity the circumstances of the denial of the rights and privileges conferred by this chapter. A single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein. If the court finds the denial to be in violation of the provisions of this chapter, the petitioner shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorney fees from the public body if the petitioner substantially prevails on the merits of the case, unless special circumstances would make an award unjust. In making this determination, a court may consider, among other things, the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body's position.
FOIA requires public bodies to provide all requested records unless otherwise excluded by law from release. If there is a factual dispute regarding whether all records have been provided, only a court may make a binding determination of fact. However, note that subsection E of § 2.2-3713 provides specifically that:
In 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. No court shall be required to accord any weight to the determination of a public body as to whether an exclusion applies. Any failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter.
Thus, if there is a dispute regarding the withholding of records in whole or in part, because the public body is the only party with access to the unredacted records, the public body must bear the burden to prove that any redactions were properly made in accordance with any applicable discretionary exemption(s) or prohibition(s).
On previous occasions, our office has opined that "FOIA operates most effectively as a tool that can be used by citizens to obtain government records" and that "invoking FOIA rights should not be interpreted as the invocation of an adversarial process staking government against citizens."7 There have been unfortunate situations that escalated and required citizens to enforce their FOIA rights in court.8 However, our office continues to advocate that clear and concise communication between a requester and a government official is the most efficient manner in which to resolve any concerns about a FOIA request.9 As a state agency, our office does not make recommendations regarding hiring attorneys or initiating litigation. Please be advised that if you are considering filing a petition, as with any other type of court proceeding, you may wish to consult your own attorney before deciding whether to do so.
In regards to your query of whether "[d]epartments and individuals who are not responsive, delay, and/or withhold information for release will receive a letter of non-compliance from the FOIA Officer," our office is unable to address any such disciplinary action for nonperformance. That type of determination would likely be controlled by an internal policy of an individual public body. FOIA does not contain a specific disciplinary action for a FOIA officer except for what is provided by §§ 2.2-3713 and 2.2-3714.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Joseph Underwood
Senior Attorney
Alan Gernhardt
Executive Director
1Freedom of Information Advisory Opinion 01 (2014).
2Freedom of Information Advisory Opinion 04 (2010).
3Freedom of Information Advisory Opinions 07 (2011) and 06 (2005) (citing Freedom of Information Advisory Opinions 14 (2000) and 47 (2001); 1991 Op. Att'y Gen. Va. 13; 1991 Op. Att'y Gen. Va. 9).
4Freedom of Information Advisory Opinion 07 (2011).
5Freedom of Information Advisory Opinions 02 (2023) and 08 (2018).
6Hawkins v. Town of South Hill, 87 S.E.2d 408, 416 (Va. 2022) (alterations and citations omitted).
7See Freedom of Information Advisory Opinions 06 (2009), 06 (2005), 25 (2004), 16 (2004), 15 (2003), and 11 (2003).
8Id.
9Id.
