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September 29, 2000
Mr. Will F. Corbin
Editor, Daily Press
Newport News, VA
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, unless otherwise
indicated.
Dear Mr. Corbin:
This will acknowledge receipt of your letter of August 18, 2000,
and the correspondence between Greg Lohr and Judith Malveaux, also
of the Daily Press, and James E. Barnett, county attorney for the
County of York. You have requested "illumination" on a number of
issues related to the application of the Virginia Freedom of
Information Act (FOIA) to e-mails between members of a public
body.
1. Your first question concerns the definition of the term
"transaction of public business" and whether certain e-mails to or
from public officials can be considered "personal" when such e-mail
messages go through a government agency’s e-mail
database.
Under FOIA, the term "transaction of public business" is not
defined. According to statutory construction rules, in the absence
of a statutory definition, a statutory term is considered to have
its ordinary meaning, given the context in which it is
used.[fn1]
FOIA, however, does define "public records" as all writings
and recordings which consist of letters, words or numbers, or their
equivalent, set down by handwriting, typewriting, printing,
photostatting, photography, magnetic impulse, optical or
magneto-optical form, mechanical or electronic recording or other
form of data compilation, however stored, and regardless of
physical form or characteristics, prepared or owned by, or in the
possession of a public body or its officers, employees or agents in
the transaction of public business. (Emphasis added). In order
for a writing or recording to fall within the definition of "public
record," it must be as described in the definition and be related
to the transaction of public business. Implicit in the definition
is that not all writings and recordings, etc., are public records.
Because the definition of "public records" includes those stored in
electronic form, e-mail messages related to public business are
covered by FOIA.
Based on the foregoing, it would appear that e-mails between
members of a public body that are not related to the transaction of
public business are not "public records" under FOIA and therefore
are not subject to its mandatory disclosure requirements. The fact
that e-mail messages go through a government agency’s e-mail
database does not, by itself, make them public records. It is also
the subject of those e-mails that determines their status as public
records.
I note parenthetically that the Library of Virginia has had to
grapple with the question of what constitutes records related to
the transaction of public business in the context of the Virginia
Public Records Act (§ 42.1-76 et seq.). Although the primary
purpose of this Act is to set standards for the retention of
public records, the guidelines established by the Library of
Virginia pursuant to the Virginia Public Records Act distinguish
between e-mails that are public records (and hence subject to
retention) and those that are not. Examples of "non-records"
include personal messages or announcements, convenience or
reference copies, phone message reminders, routine chat on e-mail
listservers, and announcements of social events. You may obtain
further information on this issue by contacting the Records
Management and Imaging Services Division of the Library of
Virginia.
2. Your second question is whether, under FOIA, an e-mail
transmitted through a government computer database is different in
any way from a paper letter on government stationery.
The substance of my response to your previous question
concerning e-mail messages and government databases is applicable
to this question. For your information, the Virginia Freedom of
Information Advisory Council is currently examining the nature of
e-mail and other electronic communication in the context of
FOIA’s open records and meeting requirements.
3. Your third question contains two parts: first, can a charge
of several thousand dollars for the production of any e-mail from
within the previous two weeks be considered "reasonable"; and
second, assuming that the estimated cost is accurate, whether a
government entity has an obligation to reduce the cost of producing
a record.
Subsection F of § 2.1-342 of the Code of Virginia
provides:
A public body may make reasonable
charges for 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.
FOIA authorizes public bodies to make reasonable charges for
their actual cost for the production of requested records.
Regardless of the public body involved in the instant case, it
appears they have exercised their statutory prerogative. While I
assume that the charge is the actual cost, the question of whether
or not that charge is reasonable is one for the courts and not this
office. As to the second part of your question, any portion of a
charge ruled to be unreasonable likely would not be permitted.
4. Your fourth question is whether any communication between a
county administrator or school superintendent and the governing
board members is exempt under the "working papers" exemption
authorized under subdivision A6 of § 2.1-342.01.
The "working papers" exemption is essentially an executive
privilege and extends to the Office of the Governor; Lieutenant
Governor; the Attorney General; the members of the General Assembly
or the Division of Legislative Services; the mayor or chief
executive officer of any political subdivision of the Commonwealth;
or the president or other chief executive officer of any public
institution of higher education. (Emphasis added) Opinions of
the Attorney General have held that school superintendents are
included in this exemption because local school divisions are
separate political subdivisions for the purposes of FOIA.[fn2]
Subdivision A6 of § 2.1-342.01 also defines "working
papers" as those records prepared by or for an above-named
public official for his personal or deliberative use. (Emphasis
added.)
To the extent that the communications are prepared for the chief
executive officer for his personal or deliberative use, the
"working papers" exemption may be properly invoked. However, once
the communication is disseminated to members of the governing body,
it loses its exempt status.[fn3] It is important to note, as stated
earlier, that the "working papers" exemption is essentially an
executive privilege and with the exception of the General Assembly,
does not extend to governing bodies.
5. Your fifth question is whether the cost of legal review of
requested materials may be considered a legitimate part of the cost
of producing the record.
Subsection F of § 2.1-342 of the Code of Virginia
provides:
A public body may make reasonable
charges for 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.
Subsection F of § 2.1-342 appears to preclude a charge for
the legal review of requested materials because such a charge would
be an intermediary fee to recoup the general costs associated with
transacting the general business of the public body.
6. Your sixth question requests helpful guidance on the
boundaries of "specific" as FOIA contemplates it.
From reviewing the attachments that accompanied your letter, I
assume that this question concerns the requirement that requests
for records made under FOIA identify the requested records with
reasonable specificity. "Reasonable specificity" or "specific" are
not defined terms under FOIA and therefore the statutory
construction rules applied in your first question apply here.
Webster’s New Collegiate Dictionary (1977 Edition) defines
"specific" as constituting or falling into a specifiable category,
free from ambiguity. Common sense would dictate that a request
needs to be specific enough to enable a public body to begin to
process the request and, if clarification is required, to ask
relevant questions to understand the scope of the request. Section
2.1-340.1 requires all public bodies and public officials to make
reasonable efforts to reach an agreement with a requester
concerning the production of the records requested. This provision
presumes that the parties will talk to one another to facilitate
the production of the requested records in a manner satisfactory to
the parties.
7. Your final question asks for a comment on the appropriateness
of a citizen using FOIA to gain routine access to the
correspondence of members of a governing body.
Generally, FOIA provides a right of access to public records.
The motive for the request is immaterial. Strictly speaking, your
question is not one about the application of FOIA. The issue of the
appropriateness of a request is not one for this office.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J. K. Everett
Executive Director
Footnotes:
1. Commonwealth Department of Taxation v. Orange-Madison Coop.
Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op. Atty.
Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987 Op. Atty. Gen.
Va. 174; see generally Norman J. Singer, Statutes and Statutory
Construction, 6th ed., §46:01.
2. 1976-77 Op. Atty. Gen. Va. 318.
3. 1982-83 Op. Atty. Gen. Va. 724 and
1975-76 Op. Atty. Gen. Va. 415.
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