Attorney General's Opinion 1981-82 #440

VIRGINIA FREEDOM OF INFORMATION ACT. RECORDS. NO ACTUAL VIOLATION OF ACT BUT VIOLATION OF SPIRIT OF ACT IN WITHHOLDING RECORDS IF AVAILABLE AND NO DISRUPTION OF GOVERNMENT WOULD HAVE RESULTED.

June 25, 1982

The Honorable W. Ward Teel
Member, House of Delegates

81-82 440

This is in reply to your recent letter in which you request an opinion whether a denial by a public office of a request for information under the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (1950), as amended, (the "Act") was proper.

Your letter provides the following facts. The Montgomry County School Board recently completed a study concerning possible school consolidation and a board committee distributed copies of the report to all school board members in private. The findings were to be held in private until they were announced to the public. Four days prior to the announcement, a representative of a Virginia newspaper requested a copy of the report, The school board denied this request, stating that the Act gives it fourteen days in which to respond to the request. Consequently, the release of the report was effectively blocked until the board made it public four days later.

Section 2.1-342 provides, in pertinent part, that "[e]xcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth. Access to such records shall not be denied. to representatives of newspapers...with circulation in this Commonwealth...s" I am unaware of any provision of law which would exempt the report in question from the mandatory disclosure provisions of the Act. Additionally, this Office has held that a report to a public body is an official record subject to the Act when it comes into the possession of the public body. See Report of the Attorney General (1978-1979) at 317. Therefore, the Act requires that this report shall be made available for inspection and copying by the newspaper representative who requested it.

Section 2.1-342 of the Act also sets forth the procedure to follow in responding to requests for inspection. It provides that "[any public body covered under the provisions of this chapter shall make an initial response to citizens requesting records open to inspection within fourteen calendar days from the receipt of the request by the public body...." I further note that §2.1-340.1 provides that the Act "shall be liberally construed to promote an increased awareness by all persons of governmental activities.... That construction is required because, as §2.1-340.1 further states, "the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government..,"

Bearing in mind the liberal construction to be accorded the Act, I am of the opinion that the fourteen-day response provision of §2.1-342(a) is a recognition by the General Assembly that some reasonable time may be required to permit government employees to perform any necessary clerical duties which may be required to gather the records and make them available for inspection in a public place without substantially disrupting their other governmental duties. Certainly, the purpose of the provision is not to give government a fourteen-day grace period within which it may withhold official records to which the public is entitled and within which it may control the dissemination at a time which is more convenient to the government.

The foregoing conclusion is supported by an oral opinion in an unreported chancery case decided by the Circuit Court of the City of Richmond on November 16, 1978, styled Miller v. Virginia State Board of Elections, No. G-28O6-1 In that case, involving a refusal by the State Board of Elections to release copies of election returns to the unsuccessful candidate, the court required a release prior to the expiration of the fourteen days on the ground that time was of the essence and the delay would defeat the purpose of the disclosure.

Based upon the facts contained in your letter, I am unable to conclude that the school board violated the Act when it failed to make available an official record within a period shorter than the fourteen days specified in §2.1-342(a). If, however, the board had the record readily available and could have disseminated it immediately without causing any disruption to the routine operation of government, then the school board's use of the fourteen-day period as a basis for failure to release such a record pursuant to a request does not comply with the spirit of the Act. Depending upon the factual circumstances regarding interest in--and need for--the document in question, a court might well conclude that the failure to make the report available would constitute a violation of the Act.