FOI Advisory Council Opinion AO-25-04

December 8, 2004

Lee H. Albright
Montebello, Virginia 24464

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 correspondence of November 1, 2004.

Dear Mr. Albright:

You have asked whether the Virginia Department of Game and Inland Fisheries (the Department) is required by the Virginia Freedom of Information Act (FOIA) to provide access to the meeting minutes of the Board of Game and Inland Fisheries (the Board). Your inquiry appears to have arisen from a series of letters between you, the Chairman of the Board, and the Director of Administration of the Department, beginning with a letter dated March 3, 2004 from you to the Chairman. In this letter you ask questions and express your concerns about a number of actions taken and policies adopted by the Department and the Board. Your questions and comments are grouped into three categories: (1) spending priorities for the Department, (2) the Department's management decisions and (3) the Department's responses to your prior FOIA requests. In his reply of March 5, 2004, the Chairman indicated that all of the subjects you wrote about "were addressed with proper consultation with the Board and were supported."

In a subsequent letter to the Chairman dated March 19, 2004, you indicated that you found published Board minutes that addressed three of the subjects mentioned in your March 3, 2004 letter. You also made the following FOIA request: "Please provide access to the minutes of the meeting/meetings where the remaining subjects of the March 3, 2004 letter were presented and supported by the Board. I'm particularly interested in the FOIA issues." It is unclear what response, if any, the Department made to this letter.1

By letter dated April 7, 2004 you resubmitted your FOIA request made on March 19, 2004. In this letter you also request "that all charges for providing access to the requested minutes be estimated in advance." The Director of Administration for the Department responded by letter dated April 28, 2004. This letter informed you of the Internet address where the Board minutes are posted and concluded by stating as follows: "If you are unable to access the minutes you are requesting, please advise me as to what your specific needs are."

You replied by letter dated May 5, 2004. In that letter you stated that you had found minutes on the Department's web site addressing "about four of the approximately fifteen to eighteen subjects at issue." You then reiterated your request for "access to the minutes of the meeting or meetings where these remaining subjects were presented." Another copy of this letter was sent by you to the Chairman and the Director of Administration on September 4, 2004.2 The Chairman's reply dated September 9, 2004, indicated that he had nothing to add to his response of March 5, 2004 and directed you to contact the Director of Administration for any current or future FOIA requests.

On September 19, 2004 you wrote to the Director of Administration. You mentioned three possibilities in regard to your FOIA request:

"1. The subjects were addressed in open meetings and I just cannot locate the appropriate section in minutes posted on the internet. If so, please direct me to the correct location.
2. [The Chairman] over generalized. If so, a simple statement to that effect would suffice.
3. The subjects were addressed in a closed meeting. If so, that is a FOIA violation. There may be other possibilities, but please give some definitive response."

The Director of Administration responded by letter dated October 1, 2004. In that letter he observed that "[y]our letter of March 3 poses questions to the Board Chairman, and the FOIA does not require a response to questions." The Director also stated that copies of all meeting minutes are kept at the Richmond headquarters office, but that the office was damaged by flooding and so the records had been moved to an alternate storage facility. He indicated that any visits to this alternate facility must be scheduled in advance; a staff member would have to accompany you, and that you would be responsible for the cost of that service. The Director then provided a summary description of the process by which the Board holds closed meetings.

In a reply dated October 25, 2004, you stated that the Director's letter of October 1, 2004 "is ambiguous and does not address my FOIA request." You then reiterated your March 19, 2004 FOIA request using the following language:

"1. [The Chairman] stated that certain issues had been properly presented to and supported by the Board -- the Board acted on the issues.
2. All Board actions must take place at a public meeting with recorded minutes.
3. I have accessed minutes on line where five of the subjects raised in my March 3, 2004, letter were addressed as stated in previous correspondence. I request to inspect a copy of the minutes where the remaining subjects were addressed or please provide a date so I may find the minutes on line."

The Director of Administration replied to this latest request on October 29, 2004. He indicated that he did not "know what specific documents you desire to review so that I can make them available." His letter concluded with an offer to schedule a time when you could review Board minutes other than those posted on the Department's Internet site.

Based on the foregoing, you asked: "Is [the Chairman] required by FOIA to provide access to Board Meeting minutes in this situation?" Subsection B of § 2.2-3700 of the Code of Virginia states that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked. Subsection I of § 2.2-3707 states that [m]inutes shall be recorded at all open meetings....Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records shall be deemed public records and subject to the provisions of this chapter. Furthermore, subsection A of § 2.2-3704 states that [e]xcept 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. Taken together these provisions make clear that open meeting minutes must be made available to any citizen of the Commonwealth upon request during the regular office hours of the custodian. Therefore, in this matter, Board minutes must be made available to you. It appears that certain minutes have been made available as you have elected to view them on-line. As to the remainder of Board minutes, the Department has offered to make these available to you once you make an appointment to do so, given that they have been damaged by recent flooding.

I have included the chronology and details of the correspondence between you, the Chairman, and the Department to illustrate a problem heard frequently by this office concerning how adversarial some FOIA transactions become, even without provocation. This office has previously commented on the importance of clear communication to the successful resolution of ambiguities that may exist in making and responding to FOIA requests.3 Your request for an advisory opinion provides yet another opportunity for this office to address this important issue. FOIA operates most effectively as a tool that can be used by citizens to obtain government records; invoking FOIA rights should not be interpreted as the invocation of an adversarial process staking government against citizens. FOIA is largely a procedural act, and sets forth how to make and respond to a request. It requires a requester to be reasonably specific in identifying the records sought. FOIA, in subsection B of 2.2-3700, makes an equivalent requirement of the public body: [a]ll 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. This indicates that clear communication between the requester and the public body is critical to facilitate the production of records. There are two parties to every FOIA transaction and the intent of FOIA is best carried out when neither party treats a FOIA request as an adversarial event. FOIA contemplates good faith requests and good faith responses, and clear communication is the best way to achieve the intent of the law.

Unfortunately, situations do sometime escalate and require a citizen to enforce his FOIA rights in court. However, the practical perspective of dealing with the application of FOIA on a daily basis has taught me that clear and concise communication between a requester and a government official -- relying on the requirements set forth in the law and not on editorial comment -- is often the best way to successfully resolve any concerns about a FOIA request. In those instances where either party to the transaction feels that the law is not being properly upheld, this office is always available to informally discuss the application of FOIA, to advise a party as to his FOIA rights, and to suggest a course of action in an attempt to amicably resolve the situation.

Taking into consideration the intent of FOIA, the facts at issue, and previous opinions of this office, I suggest the following. The Department should clearly state if a requested record does not exist and, if there is any confusion on its part as to what record(s) you seek, to communicate meaningfully with you to clarify the matter. The Department should explicitly refer to each topic in trying to clarify to you what records it holds and about what requests remain unclear. Considering the number of topics in which you appear to be interested, I suggest that you renew your request by specifically identifying the topics of the records you seek and perhaps expand your request to include any other documents the Department or the Board may have relating to that topic, and not just the minutes of the Board meetings. It is the hope of this office that clear communication in the future, on the part of both parties to this transaction, will lead to a satisfactory resolution of this issue.

One final point should be made about minutes generally. Prior to July 1, 2004, FOIA contained no requirements as to the content of meeting minutes. As a result, a requester had to be content with minutes that may or may not adequately reflect the discussions and actions of a public body. Essentially, the adequacy of minutes was affected by the minute-taking standards adopted by various public bodies. Subsection I of § 2.2-3707, however, was amended during the 2004 Session of the General Assembly to require that [m]inutes shall include, but are not limited to, (i) the date, time and location of the meeting, (ii) the members of the public body recorded as present and absent, and (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.4 Your initial request occurred prior to July 1, 2004, and refers to events that occurred before the above-noted requirements for minutes became effective. It is therefore possible that the issues with which you are concerned were discussed by the Board but were not reflected in the minutes. In such a case, FOIA does not require the Department to amend the minutes or to create any new record to satisfy your request. This new FOIA provision establishing requirements for the content of minutes will benefit both citizens and public bodies by fostering the creation of more meaningful public records.

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

Sincerely,

Maria J.K. Everett
Executive Director

1In your subsequent letter dated April 7, you observe that a "FOIA related charge was in dispute and [the Department] was not required to respond."
2The content of this September 4, 2004 letter indicates that your dispute with the Department regarding charges for your previous FOIA request had been resolved by this date.
3See Freedom of Information Advisory Opinion 16 (2004).
4See Acts of Assembly, c. 730 (2004) (enacting the quoted language).