FOI Advisory Council Opinion AO-12-07
AO-12-07
October 29, 2007
Marsha Maines
Via Electronic Mail
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 of August 31, September 4, and September 30, 2007.
Dear Ms. Maines:
You have asked whether the Division of Child Support Enforcement (DCSE) of the Virginia Department of Social Services (DSS) properly denied your request for records of the names, addresses, phone numbers, and case numbers of adults involved in open DCSE cases for a single county in Virginia. Specifically, you indicated that you are interested in information about non-custodial parents, not information about applicants for or recipients of DSS services. You indicated that you feel this information should be public since DSS publishes "most wanted" posters and information about those in arrears in newspapers and other media.
As an initial matter, it is not entirely clear what response you received from DSS. Copies of the actual response(s) from DSS were not included with the correspondence you provided to this office. The correspondence you provided appears to indicate that DSS initially denied your request without citing a statutory exemption, but later supplemented the initial response after you requested the statutory authority allowing DSS to withhold records. FOIA sets forth a clear procedure to follow if a public body is going to deny a request for records. If a public body is going to withhold requested records in their entirety, as appears to be the case here, subdivision B 1 of § 2.2-3704 requires the public body to provide a written response that identifies 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. In a situation where the request is denied in part but some records are provided, then subdivision B 2 of the same section requires the public body to provide a written response that identifies 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. Denying a request without providing an appropriate written response as set forth in these subdivisions would be a procedural violation of FOIA. Again, it is not clear whether any such violation occurred in the instant situation, but public bodies need to be mindful of these procedural requirements whenever a request is denied.
Next, we move to consider whether the records at issue are subject to mandatory disclosure under FOIA. Subsection A of § 2.2-3704 sets forth the general rule governing disclosure of public records under the Virginia Freedom of Information Act (FOIA): Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Subdivision 14 of § 2.2-3705.5 provides a discretionary exemption for [r]ecords, information and statistical registries required to be kept confidential pursuant to §§ 63.2-102 and 63.2-104. In full, § 63.2-102 reads as follows:
A. All records, information and statistical registries of the Department and local boards and other information that pertain to public assistance and child support enforcement provided to or on behalf of any individual shall be confidential and shall not be disclosed except to persons specified hereinafter and to the extent permitted by state and federal law and regulation. The local boards shall allow the Commissioner, at all times, to have access to the records of the local boards relating to the appropriation, expenditure and distribution of funds for, and other matters concerning, public assistance under this title.
Except as provided by state and federal law and regulation, no record, information or statistical registries concerning applicants for and recipients of public assistance and child support shall be made available except for purposes directly connected with the administration of such programs. Such purposes include establishing eligibility, determining the amount of the public assistance and child support, and providing social services for applicants and recipients. It shall be unlawful for any person to disclose, directly or indirectly, any such confidential information, and any person violating these provisions shall be guilty of a Class 1 misdemeanor.
B. If a request for a record or information concerning applicants for and recipients of public assistance or child support is made to the Department or a local department for a purpose not directly connected to the administration of such programs, the Commissioner or local director shall not provide the record or information unless permitted by state or federal law or regulation.
Because § 63.2-102 states that records to which it applies shall not be disclosed except as specified, it removes the discretion the custodian would otherwise have under FOIA in choosing whether to invoke an exemption. Additionally, one who improperly discloses confidential records in violation of the prohibitions of § 63.2-102 may also be subject to criminal misdemeanor penalties. In other words, if § 63.2-102 applies, the custodian must deny the request and withhold the records. Thus the question becomes whether § 63.2-102 applies to the specific records you requested concerning non-custodial parents who are not recipients of or applicants for DSS services.
The first sentence of subsection A of § 63.2-102 states that [a]ll records, information and statistical registries of the Department and local boards and other information that pertain to public assistance and child support enforcement provided to or on behalf of any individual shall be confidential and shall not be disclosed except to persons specified hereinafter and to the extent permitted by state and federal law and regulation. You indicated that you do not feel this exemption applies to the records you requested because those records concern non-custodial parents, not applicants for and recipients of public assistance and child support. You are correct that the second paragraph of subsection A and subsection B both refer specifically to records concerning applicants for and recipients of public assistance and child support. However, the initial prohibition on release set forth in the first paragraph of subsection A clearly applies to all records...that pertain to public assistance and child support enforcement provided to or on behalf of any individual. Your request was made against the background of child support enforcement actions. Within that context, it is presumed that DSS maintains records concerning non-custodial parents who are not recipients of or applicants for DSS services as records that pertain to...child support enforcement provided to or on behalf of a custodial parent, guardian, or child (i.e., an individual who is a recipient of or applicant for such services). To that extent, it appears on its face that § 63.2-102 prohibits the release of such records concerning non-custodial parents. Because § 63.2-102 is a mandatory prohibition on release, it supersedes the disclosure provisions of FOIA as otherwise specifically provided by law under subsection A of § 2.2-3704. Note that if DSS has records concerning non-custodial parents in some other context to which no prohibition applies, then those records would be subject to disclosure under FOIA. Additionally, records put forth into the public domain on "wanted" posters, newspaper advertisements and the like should also be disclosed upon request, as they have already been publicly disseminated (and presumably such dissemination is not prohibited by § 63.2-102).
As a final matter, I note that the authority of this office is limited to FOIA matters. As opined earlier this year, the powers and responsibilities of the Freedom of Information Advisory Council (the Council) are set forth in § 30-179. Subdivision 1 of that section empowers the Council to [f]urnish, upon request, advisory opinions or guidelines, and other appropriate information regarding the Freedom of Information Act (§ 2.2-3700 et seq.) to any person or agency of state or local government, in an expeditious manner. This office offers opinions and guidance only in regard to FOIA. Other laws will be considered as they directly relate and interact with FOIA, but this office does not and cannot offer opinions solely concerning laws outside of FOIA.1 Thus this office considers § 63.2-102 only as it interacts with FOIA as incorporated by subdivision 14 of § 2.2-3705.5, and giving the language of § 63.2-102 a plain reading as it appears on its face. This office cannot and does not offer any independent interpretation of § 63.2-102, its terms, scope, or application outside of the FOIA context.
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 04 (2007).
October 29, 2007
Marsha Maines
Via Electronic Mail
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 of August 31, September 4, and September 30, 2007.
Dear Ms. Maines:
You have asked whether the Division of Child Support Enforcement (DCSE) of the Virginia Department of Social Services (DSS) properly denied your request for records of the names, addresses, phone numbers, and case numbers of adults involved in open DCSE cases for a single county in Virginia. Specifically, you indicated that you are interested in information about non-custodial parents, not information about applicants for or recipients of DSS services. You indicated that you feel this information should be public since DSS publishes "most wanted" posters and information about those in arrears in newspapers and other media.
As an initial matter, it is not entirely clear what response you received from DSS. Copies of the actual response(s) from DSS were not included with the correspondence you provided to this office. The correspondence you provided appears to indicate that DSS initially denied your request without citing a statutory exemption, but later supplemented the initial response after you requested the statutory authority allowing DSS to withhold records. FOIA sets forth a clear procedure to follow if a public body is going to deny a request for records. If a public body is going to withhold requested records in their entirety, as appears to be the case here, subdivision B 1 of § 2.2-3704 requires the public body to provide a written response that identifies 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. In a situation where the request is denied in part but some records are provided, then subdivision B 2 of the same section requires the public body to provide a written response that identifies 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. Denying a request without providing an appropriate written response as set forth in these subdivisions would be a procedural violation of FOIA. Again, it is not clear whether any such violation occurred in the instant situation, but public bodies need to be mindful of these procedural requirements whenever a request is denied.
Next, we move to consider whether the records at issue are subject to mandatory disclosure under FOIA. Subsection A of § 2.2-3704 sets forth the general rule governing disclosure of public records under the Virginia Freedom of Information Act (FOIA): Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Subdivision 14 of § 2.2-3705.5 provides a discretionary exemption for [r]ecords, information and statistical registries required to be kept confidential pursuant to §§ 63.2-102 and 63.2-104. In full, § 63.2-102 reads as follows:
A. All records, information and statistical registries of the Department and local boards and other information that pertain to public assistance and child support enforcement provided to or on behalf of any individual shall be confidential and shall not be disclosed except to persons specified hereinafter and to the extent permitted by state and federal law and regulation. The local boards shall allow the Commissioner, at all times, to have access to the records of the local boards relating to the appropriation, expenditure and distribution of funds for, and other matters concerning, public assistance under this title.
Except as provided by state and federal law and regulation, no record, information or statistical registries concerning applicants for and recipients of public assistance and child support shall be made available except for purposes directly connected with the administration of such programs. Such purposes include establishing eligibility, determining the amount of the public assistance and child support, and providing social services for applicants and recipients. It shall be unlawful for any person to disclose, directly or indirectly, any such confidential information, and any person violating these provisions shall be guilty of a Class 1 misdemeanor.
B. If a request for a record or information concerning applicants for and recipients of public assistance or child support is made to the Department or a local department for a purpose not directly connected to the administration of such programs, the Commissioner or local director shall not provide the record or information unless permitted by state or federal law or regulation.
Because § 63.2-102 states that records to which it applies shall not be disclosed except as specified, it removes the discretion the custodian would otherwise have under FOIA in choosing whether to invoke an exemption. Additionally, one who improperly discloses confidential records in violation of the prohibitions of § 63.2-102 may also be subject to criminal misdemeanor penalties. In other words, if § 63.2-102 applies, the custodian must deny the request and withhold the records. Thus the question becomes whether § 63.2-102 applies to the specific records you requested concerning non-custodial parents who are not recipients of or applicants for DSS services.
The first sentence of subsection A of § 63.2-102 states that [a]ll records, information and statistical registries of the Department and local boards and other information that pertain to public assistance and child support enforcement provided to or on behalf of any individual shall be confidential and shall not be disclosed except to persons specified hereinafter and to the extent permitted by state and federal law and regulation. You indicated that you do not feel this exemption applies to the records you requested because those records concern non-custodial parents, not applicants for and recipients of public assistance and child support. You are correct that the second paragraph of subsection A and subsection B both refer specifically to records concerning applicants for and recipients of public assistance and child support. However, the initial prohibition on release set forth in the first paragraph of subsection A clearly applies to all records...that pertain to public assistance and child support enforcement provided to or on behalf of any individual. Your request was made against the background of child support enforcement actions. Within that context, it is presumed that DSS maintains records concerning non-custodial parents who are not recipients of or applicants for DSS services as records that pertain to...child support enforcement provided to or on behalf of a custodial parent, guardian, or child (i.e., an individual who is a recipient of or applicant for such services). To that extent, it appears on its face that § 63.2-102 prohibits the release of such records concerning non-custodial parents. Because § 63.2-102 is a mandatory prohibition on release, it supersedes the disclosure provisions of FOIA as otherwise specifically provided by law under subsection A of § 2.2-3704. Note that if DSS has records concerning non-custodial parents in some other context to which no prohibition applies, then those records would be subject to disclosure under FOIA. Additionally, records put forth into the public domain on "wanted" posters, newspaper advertisements and the like should also be disclosed upon request, as they have already been publicly disseminated (and presumably such dissemination is not prohibited by § 63.2-102).
As a final matter, I note that the authority of this office is limited to FOIA matters. As opined earlier this year, the powers and responsibilities of the Freedom of Information Advisory Council (the Council) are set forth in § 30-179. Subdivision 1 of that section empowers the Council to [f]urnish, upon request, advisory opinions or guidelines, and other appropriate information regarding the Freedom of Information Act (§ 2.2-3700 et seq.) to any person or agency of state or local government, in an expeditious manner. This office offers opinions and guidance only in regard to FOIA. Other laws will be considered as they directly relate and interact with FOIA, but this office does not and cannot offer opinions solely concerning laws outside of FOIA.1 Thus this office considers § 63.2-102 only as it interacts with FOIA as incorporated by subdivision 14 of § 2.2-3705.5, and giving the language of § 63.2-102 a plain reading as it appears on its face. This office cannot and does not offer any independent interpretation of § 63.2-102, its terms, scope, or application outside of the FOIA context.
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 04 (2007).
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