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April 30, 2003
Mr. McKinley Bailey, Jr.
Spring Grove, 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 February 21,
2003.
Dear Mr. Bailey:
You have asked a question concerning access to salary
information of employees of Surry County ("the County") under the
Virginia Freedom of Information Act (FOIA). You indicate that you
made the following FOIA request:
"Please provide me a list of the county employees, including for
each respective employee his or her job title and base salary as of
July 1, 2002, including supplements and bonuses, if any. Further,
if an employee's base salary, as of January 1, 2003, including
supplements and bonuses, is different from that as of July 1, 2002,
please also include the employee's base salary, including
supplements and bonuses, as of January 1, 2003."
In response to your request, the County sent you one record -- a
list of employees with their job titles and salary for the fiscal
year 2002-2003. The record also listed bonuses awarded to certain
employees on December 15, 2002. The response did not mention if any
of the salary information had changed between July 1 and January 1.
You indicate that you sent a follow-up request, asking for salary
data as of July 1, 2002, and salary data of January 1, 2003. In
your follow-up request, you stated that you had "asked for salary
data that were relevant to two distinct periods in time: July 1,
2002 and January 1, 2003. You did not provide the information I
requested." Your request also referred the County Administrator to
your first request, and asked that the records that you requested
be provided. The County responded that they had fully responded to
your first request, and had provided you with all of the records
responsive to your request. You ask if you are entitled to the
salary records for the dates that you have requested.
Subsection A of § 2.2-3704 of the Code of Virginia requires
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 § 2.2-3705
states that nothing in FOIA should be construed to deny access to
records of the position, job classification, official salary or
rate of pay of, and records of the allowances or reimbursements for
expenses paid to any officer, official or employee of a public
body.
FOIA would entitle a requester to the salary information of
county employees for a particular date(s). Upon request, the County
would be required to provide a list of the salaries as of July 1,
2002, and another list of salaries as of January 1, 2003.
Generally, subsection D of § 2.2-3704 states that a public
body does not need to create a new record in response to a FOIA
request if the record does not already exist, but a public body
may abstract or summarize information under such terms and
conditions as agreed between the requester and the public body.
However, because FOIA affirmatively requires that salary
information be available for public access, a public body would be
required to create such a record if it did not exist at the time of
the request as an exception to the general rule stated above.
Some confusion may have resulted from your original request
because it asked for January 1, 2003, salary records if
different from July 1, 2003 salary records. (Emphasis added.)
You clearly requested records indicating salary information as of
July 1, 2002. However, the request for salary records as of January
1, 2003, appears to be contingent on the data having changed since
July 1, 2002. As noted above, a public body is not required under
FOIA to abstract or summarize from records unless there is mutual
agreement between the requester and the public body. The nature of
the County's response -- providing general information for the
fiscal year -- indicates that perhaps none of the salaries had
changed since July 1, 2002, and thus no additional records were
provided in response to your request, although the County never
specifically indicated that this was the case. It appears that the
inclusion of salary bonus records as of December 15, 2002, was an
attempt to respond to the contingency stated in your initial
request. Your second request more clearly asked for two sets of
records, even though it still referred the County back to your
original request.
If you are interested in comparing the salaries of the county
employees on two different dates, it may be up to you to compare
the records. In asking the County to supply a certain record only
if it differs from another record, you are in essence asking a
public body to abstract or summarize information. A better approach
may be to simply request the salary information for all employees
as of July 1, 2002, and January 1, 2003, and perform the comparison
yourself, without making mention that you only want the second
record if it differs from the first. Even if the salary records do
not already exist for these distinct time periods, the County would
be obligated to create these records in response to your
request.
One final note may be helpful in this instance. Making and
responding to FOIA requests is not meant to be adversarial. FOIA
primarily sets out the procedural responsibilities of the parties
involved. It requires a requestor to be reasonably specific in
identifying the records sought and the public body that is the
records custodian to produce those records, unless exempted, in the
required time period. If a request is unclear, it may be advisable
for a public body to contact the requester to clarify any
ambiguities. FOIA, however, does not require this. Dialogue between
the parties helps facilitate the production of the records sought,
which is the intent of the law.
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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