FOI Advisory Council Opinion AO-08-19

AO-08-19

August 22, 2019

William H. Turner
Onley, 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 dated July 17, 2019, facsimile transmission dated August 20, 2019, and electronic mail dated August 22, 2019.

Dear Dr. Turner:

You have asked for an advisory opinion regarding four inquiries concerning the Virginia Freedom of Information Act (FOIA), each of which is addressed in turn below.

First, you have asked us to opine regarding whether subdivision 13 of § 2.2-3705.1 allows a public body to withhold the names of credit card holders. By its own terms, that exemption allows a public body to withhold "[a]ccount numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body." The exemption is silent regarding the names of credit card holders. Subsection B of § 2.2-3700 states that "all public records shall be available for inspection and copying upon request ... and no record shall be withheld ... unless specifically made exempt pursuant to this chapter or other specific provision of law." The same subsection also directs that "[a]ny exemption from public access to records or meetings shall be narrowly construed." Applying this policy to your inquiry, subdivision 13 of § 2.2-3705.1 does not provide an exemption for the names of credit card holders, only for certain account numbers and routing information. Therefore, records containing the names of credit card holders must be disclosed upon request unless some other exemption or prohibition applies.

Second, you asked, "In an expedited hearing can this be filed in a district court?" The statutory remedy for a FOIA violation is to file a petition for mandamus or injunction supported by an affidavit showing good cause pursuant to § 2.2-3713. Subdivisions A 1, A 2, and A 3 of that section set forth the appropriate venue for such a petition depending on whether the responding public body is of local, regional, or state character. Each subdivision gives the petitioner the option of filing in general district court or circuit court. Subsection C provides for an expedited hearing on FOIA petitions:

Notwithstanding the provisions of § 8.01-644, the petition for mandamus or injunction shall be heard within seven days of the date when the same is made, provided the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing. However, if the petition or the affidavit supporting the petition for mandamus or injunction alleges violations of the open meetings requirements of this chapter, the three-day notice to the party against whom the petition is brought shall not be required. The hearing on any petition made outside of the regular terms of the circuit court of a locality that is included in a judicial circuit with another locality or localities shall be given precedence on the docket of such court over all cases that are not otherwise given precedence by law.

These timing provisions do not set forth different timing provisions for filing the petition in general district court versus filing in circuit court. Reading all of these provisions together, the petitioner may choose to file in either general district court or circuit court, and the expedited timing provisions apply regardless of which court the petitioner chooses.

Third, you asked whether "a requester for [a] FOIA document [may] file a complaint if he feels he is being overcharged." Subsection F of § 2.2-3704 provides that public bodies may charge for producing public records within certain limits:

A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.

As stated above, the statutory remedy for a FOIA violation set out in § 2.2-3713 is to file a petition for mandamus or injunction supported by an affidavit showing good cause. Specifically, subsection A of that section provides that "[a]ny person ... denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause." Therefore, a requester may file a petition for mandamus or injunction if he feels that a public body has violated the statutory limits on charges.

Fourth, you inquire as to whether "an official opinion of the FOIA [may] be called hearsay by the court" and whether such an opinion would be considered expert testimony. Generally, this office has no authority to advise regarding evidentiary matters as our statutory authority under § 30-179 is limited to FOIA. For that reason, you may wish to consult your own attorney regarding whether any particular item is hearsay or not. However, I would note that as of July 1, 2019, new § 2.2-3715 provides as follows:

Any officer, employee, or member of a public body who is alleged to have committed a willful and knowing violation pursuant to § 2.2-3714 shall have the right to introduce at any proceeding a copy of a relevant advisory opinion issued pursuant to § 30-179 as evidence that he did not willfully and knowingly commit the violation if the alleged violation resulted from his good faith reliance on the advisory opinion.

Regarding whether opinions of this office may be considered expert testimony, I would direct your attention to the litigation policy of the FOIA Council where it states as follows:

The Executive Director of the Council will not accept a request by a citizen, public official, or reporter to testify as an expert witness in any lawsuit involving FOIA issues. If subpoenaed to testify by either party, the Council delegates authority to the Executive Director to file, in his discretion, a motion to quash the subpoena.¹

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