FOI Advisory Council Opinion AO-01-09

Craig L. Beauchamp
Oak Park, 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 letter of March 16, 2009.

Dear Mr. Beauchamp:

You have asked several questions pertaining to a request you made for certain records concerning employees of the Office of the Executive Secretary of the Supreme Court of Virginia (OES). You indicated that you are a magistrate employed by OES. You stated that on February 23, 2009, you sent by facsimile a written request to your Magistrate Regional Supervisor that asked for records of the name, normal duty location, classification (Magistrate I to Magistrate VI), and the official salary or rate of pay for each magistrate employed in the 16th Judicial District as of February 9, 2009. In the same request you also asked for similar records for certain administrative employees, including the Director, Department of Judicial Services, Magistrate System Coordinator, Magistrate Training Coordinator, and every Magistrate Advisory, Magistrate Regional Supervisor, and Chief Magistrate. You also asked for similar records of prior employment with OES for those administrative employees who held different positions under OES before being employed in their current administrative position. You asked that all of the requested information be provided by employee name. The Magistrate Regional Supervisor forwarded your request by letter on the same date, February 23, 2009, to OES. The OES replied by letter dated March 9, 2009, which indicated that your forwarded request was received by OES on March 3, 2009. The reply letter from OES provided the salary range for magistrates in the 16th Judicial District and the salary range for full-time chief magistrates, and stated that the salary range for chief magistrates includes those chief magistrates in Northern Virginia receiving a 20% pay differential. It did not contain any information about specific named employees or any other further information responsive to your request. In light of this response, you ask whether OES is covered by the provisions of FOIA, and if so, whether the response you received from OES was timely and otherwise in compliance with the response requirements of FOIA.

In addressing the issues you raise, we must first establish whether OES is a public body subject to FOIA. A public body is defined in § 2.2-3701 to include, among other entities,

any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.

I do not know of any prior opinions that specifically address whether OES is a public body subject to FOIA. However, a prior opinion of the Attorney General, subsequently followed by this office, concluded that a circuit court is an agency of the State, or in the State, supported wholly or principally by public funds and is therefore a public body subject to FOIA.1 While you did not provide specific information concerning OES' budget sources, it would appear that OES is an office created by statute to be the court administrator for the Commonwealth, and that the Executive Secretary is appointed by and holds office at the pleasure of the Supreme Court of Virginia.2 It therefore appears that OES, like a circuit court, is also an agency of the Commonwealth supported wholly or principally by public funds and therefore likewise is a public body subject to the provisions of FOIA.

You next ask whether the response to your request was made in a timely fashion. Subsection B of § 2.2-3704 requires that [a]ny public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of [four other allowed responses] in writing. As previously opined by this office, weekends and legal holidays are generally not included as working days, and the first day to respond is the day after the custodian actually receives the request.3 In this instance you made your initial request February 23, 2009, which was forwarded to OES the same day. The reply letter from OES was dated March 9, 2009; the same letter indicated that your request was received by OES on March 3, 2009. Given this context, it is presumed that the Magistrate Regional Supervisor to whom you sent your request is not the custodian of the requested records, and that OES is in fact the custodian of the records you seek. Therefore, given that OES received your request on Tuesday, March 3, 2009, the first day to respond would have been Wednesday, March 4, 2009 (the day after actual receipt by the custodian). The fifth and final day to respond would have been Tuesday, March 10, 2009. Given that the response letter was dated Monday, March 9, 2009, and presuming it was actually sent the same date or the next day, then the response was made within the five working day limit allowed under FOIA.

However, while it appears to have been made in a timely fashion, the actual response you received does not appear to comply with the requirements of FOIA. Subsection B of § 2.2-3704 allows a public body to make five responses to a records request. As summarized in a prior opinion, those five responses are (1) to provide the requested records, (2) to deny the request entirely pursuant to a specific provision of law, (3) to provide the records in part and deny it in part (again, pursuant to a specific provision of law), (4) to state that the requested records do not exist or cannot be found, and (5) to invoke an additional seven working days to respond. All responses other than the first (providing the records) must be made in writing, and any denial must cite the specific provision of law that allows the records to be withheld.4 You requested specific information about individual employees to be identified by name and job position. While personnel records concerning identifiable employees may generally be withheld from disclosure pursuant to subdivision 1 of § 2.2-3705.1, subsection A of § 2.2-3705.8 provides that certain records must be disclosed upon request, including records of the position, job classification, official salary or rate of pay [if greater than $10,000 per year] of, and records of the allowances or reimbursements for expenses paid to any officer, official or employee of a public body. Prior opinions of this office and the Attorney General have interpreted this section to include the requirement that names of individual employees be released upon request along with salary, job classification and other information required to be released.5 In light of the statutory provisions and prior opinions, you should have received records of the position, job classification, official salary or rate of pay (over $10,000 annually) by name for the employees identified in your request, as you requested. The response instead provided two salary ranges and a brief explanatory sentence about one of those ranges, but did not actually provide the records you sought nor any of the other statutory responses mandated under FOIA. Your request was not denied, no exemption was cited, no additional time to respond was sought, nor did OES state that it did not have the records in question, but nevertheless responsive records were not provided to you. Therefore it appears that while OES did respond to your request, the response did not comply with the requirements of FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1. Freedom of Information Advisory Opinion 11 (2002); 1981-1982 Op. Att'y Gen. Va. 60. Note, however, that the conclusions reached in these opinions regarding the availability of court records may be affected by a subsequent legislative change. In 2007, the General Assembly added subdivision A 5 to § 2.2-3703, which excludes certain court records from the operation of FOIA (2007 Acts of Assembly, c. 548). As it applies to records the clerks of the courts are required to maintain by law, and your request is for certain personnel records held by OES, subdivision A 5 of § 2.2-3703 does not apply to the records you requested.
2. Va. Code § 17.1-314 reads in full as follows: The Office of Executive Secretary to the Supreme Court, to be filled by a person having the qualifications as may be prescribed by the justices of the Supreme Court, is hereby created to be the court administrator for the Commonwealth. He shall be appointed by the Supreme Court, shall hold office at the pleasure of the Court, and during his term of office shall not engage in the private practice of law. He shall receive such compensation as may be fixed by the Court. He may, with the approval of the Court, employ such persons as are necessary for the performance of the duties of his office, whose compensation shall be fixed by the Court within the limits of the amounts appropriated by law.
3. Freedom of Information Advisory Opinion 02 (2008).
4. Freedom of Information Advisory Opinion 07 (2008).
5. Freedom of Information Advisory Opinion 28 (2001); 1978-1979 Op. Att'y Gen. Va. 310 (concluding that names and salary information of county employees earning more than $10,000 annually must be disclosed upon request); see also 1982-1983 Op. Att'y Gen. Va. 383 (addressing release of public employees' names together with job title and classification in light of the Government Data Collection and Dissemination Practices Act, formerly known as the Privacy Act).