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February 27, 2003
Mr. Daniel K. Mouer
Richmond, 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 e-mail of January 2, 2003.
Dear Mr. Mouer:
You have asked whether you may charge for public records
provided in response to a subpoena just as you would charge for
those same records if they were provided in response to a request
under the Virginia Freedom of Information Act (FOIA). You indicate
that several times a year, your office receives a subpoena ordering
certain records to be provided for a court case. In these
instances, you indicate that the City of Richmond, for whom you
work, is not a party to the litigation.
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. Section 2.2-3701 defines "public
records" to include all writings and recordings…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. In applying these
two provisions, it is clear that the records held by the City's
Bureau of Permits and Inspections would be public records open to
inspection and copying unless a specific exemption applied.
FOIA is largely a procedural act, and it sets forth the
procedures and framework as to how citizens of the Commonwealth and
representatives of the media may request public records, and how
public bodies, officials, and employees must respond to such
requests. FOIA seeks to balance the rights of access and the need
of government to operate efficiently and effectively. One of the
tools that FOIA uses to achieve such a balance is the provision
relating to the charges that a public body may impose for providing
access to records. Subsection F of § 2.2-3704 states that a
public body may make reasonable charges for its actual cost
incurred in accessing, duplicating, supplying, or searching for the
requested records. Therefore, if an individual requested
records from your office under FOIA, you would be allowed to charge
the requester the actual costs involved in responding to the
request.
In the situation you present, the records have not been
requested by a member of the public or media contacting your office
and asking for particular records. Instead, you indicate that the
records are requested via a subpoena duces tecum, issued by a court
of the Commonwealth. Subpoenas are issued once parties are involved
in litigation, and are part of the judicial process. The Rules of
the Supreme Court of Virginia ("the Rules") set forth the
procedures and framework for litigants to follow. Subsection (c) of
Rule 4:9 states that [u]pon written request therefore filed with
the clerk of the court in which the action or suit is pending by
counsel of record for any party or by a party having no counsel in
any pending case…the clerk shall…issue to a person not
a party therein a subpoena duces tecum which shall command the
person to whom it is directed, or someone acting on his behalf, to
produce the documents and tangible things designated and described
in said request. The rule makes no mention of payment
specifically, but states that upon written motion promptly made by
the person required to produce the records, the court may quash or
modify the subpoena if it is unreasonable and oppressive or
condition denial of the motion to quash or modify upon the
advancement by the party in whose behalf the subpoena is issued of
the reasonable cost of producing the documents and tangible things
so designated or described. Subsection (d) of Rule 4:9 states
that if a party fails or refuses to obey an order, it may proceed
as provided by Rule 4:12(b)(2), which allows, among other things,
the court to issue an order of contempt.
The Rules do not provide a specific provision for public bodies
that are ordered to produce records. Instead, if the subpoena
requested a burdensome number of records, the public body's remedy,
like any other private entity that receives a subpoena, would be to
petition the court to quash or modify the order on the grounds that
the request was unreasonable or oppressive.
As stated above, FOIA governs access to records when requested
by a citizen of the Commonwealth or a representative of the media
as part of their right of access granted under FOIA. However, in
the context of litigation, the Rules govern the procedures for
production of records. A subpoena is a court order commanding that
certain documents be produced. In the context of a subpoena, a
public body would not follow the procedures set forth in FOIA. Even
if the same records could also be accessed by a citizen or
representative of the media pursuant to a FOIA request, the Rules
must be followed once a subpoena has been issued. Therefore, the
provisions related to charges for requested records under FOIA do
not apply when those records are ordered by a subpoena. The party
to whom the subpoena is issued, whether it be a private entity or a
public body, must produce the records. If the costs associated with
the production are unreasonable, then a motion to quash or modify
the subpoena may be filed, and the court, in response, may order
the requesting party to pay reasonable costs for the production of
the records. The Supreme Court has set forth its own Rules dealing
with the issuing of a subpoena and the response of a party ordered
to produce records. These Rules would supersede any procedures set
forth in FOIA for a general request for access to public
records.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
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