FOI Advisory Council Opinion AO-12-03

May 14, 2003

Mr. Andrew Shannon, President
Southern Christian Leadership Conference, Newport News Chapter
Newport News, 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 correspondence of March 25, 2003, and a telephone conversation of April 17, 2003.

Dear Mr. Shannon:

You have asked whether the City of Newport News ("the City") violated the Virginia Freedom of Information Act (FOIA) by failing to respond to your request for records. You also asked about the enforcement remedies available under FOIA if a violation has occurred.

You indicate that you made a written FOIA request on February 27, 2003, to the city manager requesting to inspect and copy "all letters, memoranda, reports and documents of any kind that relate to the 'Audience Granted to the Public' during the Newport News City Council Meetings," including written policies and procedures. "Audience Granted to the Public" is the phrase used by the City to refer to the public comment period of meetings. You indicate that you did not receive any kind of response from the city manager, and made a subsequent written request via certified mail for the same records on March 18, 2003. As of April 17, 2003, you had not received a response to either request. You ask if the City's failure to respond to your requests for records constitutes a FOIA violation.

Subsection A of § 2.2-3704 of the Code of Virginia 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. Subsection B of § 2.2-3704 states that in response to a request for records, a public body shall promptly, but in all cases within five working days of receiving a request, make one of four responses. The public body may provide the records to the requester, withhold the records in their entirety if subject to an exemption, withhold the records in part and release the records in part if only a portion of the requested records are subject to an exemption, or state that it is practically impossible to respond to the request in five working days, which gives the public body seven additional working days to respond. If the records are withheld in whole or in part, the response must be in writing, identify with reasonable particularity the volume and subject matter of the withheld records and cite the specific Code section that authorizes the withholding. Likewise, a response that it is practically impossible to respond within five working days must also be in writing, specifying the conditions that make a response impossible. Subsection E of § 2.2-3704 states that [f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of [FOIA].

In the situation you present, the city manager did not respond to your request by either providing you with the requested records, citing in writing an exemption that would allow the records to be withheld, or stating in writing that it was practically impossible to respond within five working days. FOIA is clear on its face. As noted above, subsection B of § 2.2-3704 specifically provides that failure to respond to a request for records is a violation of FOIA. Subsection A of § 2.2-3713 allows any person denied the rights and privileges of FOIA to file a petition for mandamus or injunction, supported by an affidavit showing good cause, in general district or circuit court in the county or city where the violation took place.

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

Sincerely,

Maria J.K. Everett
Executive Director