June 18, 2003

Mr. Kevin E. Martingayle, Esq.
Virginia Beach, 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 April 11, 2003, and fax of June 10, 2003, and Virginia Freedom of Information Advisory Opinion 04 (2003).

Dear Mr. Martingayle:

You have asked several questions about the application of the Virginia Freedom of Information Act (FOIA) to an individual's request to view the responses to the "Member Survey on Quality of Work Life 2002" from the City of Virginia Beach ("the City").¹

Employees of the City completed a survey focusing on general work environment issues. The City contracted with a private firm to conduct the survey. In a e-mail sent to City employees, the project director, an employee of the private firm, indicated that all "individual responses are strictly CONFIDENTIAL. At no time will anyone from the City of Virginia Beach see your individual responses." In addition to asking specific questions about the city work environment, the survey also included an open-ended comments section, and nearly 2,000 individual statements were submitted in this section. Some employees' statements related to identifiable city employees or officials. These statements were forwarded to the City Manager's ("the Manager") office for review by the Manager and the executive team. After this review, directors of the various departments within city government received copies of the comments relevant to their respective departments.

You indicate that a city employee made a FOIA request for copies of the surveys from the Manager. You indicate that in response to the request, the Manager's office faxed the requester a copy of a draft letter that would be sent to all city employees as a result of the FOIA request. The fax cover sheet accompanying the draft asked the requester if he wanted to reconsider his FOIA request.

The Manager stated in the draft letter that he was writing to advise employees of a recent FOIA request by a co-worker, named in the letter, "that could affect our entire workforce." The letter explained that the City had developed a communication plan to share survey results with all employees, but that the statements in the comment section of the survey were only intended to be reviewed by the review team and relevant department heads. The draft letter went on to explain that "Unfortunately, I regret to inform you that the confidentiality we originally promised has been somewhat compromised. Here's why. A Virginia Beach Police Officer…has submitted a FOIA request to receive a copy of all 150 pages of comments you submitted in the Member Survey. These comments contain detailed information about your worklife experiences/relationships and personal issues that we did not plan to share with anyone except the Directors." The letter did indicate that pursuant to the advice issued by the Virginia Freedom of Information Advisory Council in Advisory Opinion 04 (2003), names and personal identifying information had been redacted from the comments in response to the FOIA request. The letter concluded by stating that "[a]lthough FOIA requests have become a common occurrence, we did not think that a Member of our organization would try to compromise the confidentiality that we promised."

You indicate that despite receiving the draft of the letter, the requester proceeded with his FOIA request and received the requested documents. You further indicate that the Manager sent the letter described above to city employees upon responding to the FOIA request. You have asked four questions concerning the application of FOIA to these events.

First, you ask if a city, consistent with FOIA and Equal Protection principles, may treat an employee's FOIA request any differently from a request made by a news organization or a citizen. The Virginia Freedom of Information Advisory Council only has the authority to answer questions regarding the interpretation and application of FOIA, and thus cannot comment on any constitutional issues that may be raised by this fact scenario. However, the policy of FOIA, found at subsection B of § 2.2-3700 of the Code of Virginia ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers or employees. In furthering this policy, § 2.2-3704 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…[a]ccess to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth.

The law does not distinguish between a citizen of the Commonwealth and government employees. Individuals who choose to work in public service for state and local government do make some sacrifices. Government employees often must accept a lower salary or rate of pay than people performing equivalent jobs in the private sector. Government employees also give up some privacy in choosing to work in the public sector. For example, subsection B of § 2.2-3705 specifically states that a government employee's salary or rate of pay and reimbursements are a matter of public record. However, in making these sacrifices to work in the public sector, a government employee does not give up rights as a citizen. When an employee makes a FOIA request, he is acting in his capacity as a citizen and is entitled to the same rights and protections as other citizens making the same request. An employee's FOIA request should not be responded to any differently than other requests, and should be handled in the same routine manner.

Second, you ask whether it is consistent with FOIA for a city to send out a "warning letter" to individuals who supplied information in public records, which advises that a particular person has made a request for records and which blames the named individual for compromising the confidentiality of the public records. Whether or not a public body may send out a letter to third parties concerning a request is not a FOIA question per se. FOIA requires that a public body provide requested records or cite an appropriate statutory exemption in writing if withholding requested records. FOIA neither requires nor prohibits any other actions relating to a particular FOIA request. A public body is not prohibited from informing others that a request has been made.

However, the language in the letter blaming the requester for breaching the employees' confidentiality does raise an issue directly related to the application of FOIA. All records prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business are subject to inspection and copying under FOIA unless a specific statutory exemption allows those records to be withheld. In the facts that you present, the City, through it's contractor, sent an e-mail to all city employees at the start of the survey project indicating that all responses to the survey would be confidential. This was a promise not backed up by law. Unless the City can point to a specific statutory exemption allowing all of the survey responses to be withheld, the surveys are public records that must be disclosed upon request. Merely indicating that a record is confidential has no effect under FOIA, and does not make an otherwise public record exempt. In this case, portions of the comment section concerning identifiable individuals in the scope of their employment may be properly redacted from the surveys pursuant to the personnel exemption at subdivision A 4 of § 2.2-3705.² However, the City should not have conveyed to its employees that the surveys in their entirety were confidential when no statutory exemption exists to support this assertion. In responding to the FOIA request for the records, the City was not forced to compromise the confidentiality of its employees because the personnel exemption protects those portions of the survey concerning identifiable individuals. A requester has a right to examine or copy all public records not subject to an exemption; such requester should not bear the brunt of a public body's failure to deliver on a promise of confidentiality that it had no legal basis to make and should not be blamed for compromising a confidentiality that did not in fact exist.

Third, you ask whether a city may take actions designed to discourage or intimidate citizens, including employees, who use FOIA to obtain public records. As noted above, the policy of FOIA ensures ready access to public records. Subdivision B of § 2.2-3700 further states that the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. FOIA guarantees citizens and representatives of the media the right to inspect and copy public records. Any actions of a public body that create a chilling effect to discourage individuals from exercising these rights would clearly be contra to the underlying policies of FOIA.

It is important to note that the use of FOIA by an individual to obtain public records is not an adversarial event, and the government entity receiving the request should not view it as an affront or attack. Subsection B of § 2.2-3700 requires public bodies and their officers and employees to make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. This language clearly indicates that the intent of the law is to facilitate dialogue and for government and citizens to work together. FOIA should not be viewed as a tool used by citizens to hinder government; instead, FOIA is the tool that guarantees citizens the right and ability to stay informed about the functions and processes of their government. Any attempt by a government entity to intimidate or discourage requesters from exercising this right creates a hostile and adversarial environment, pitting government against the very people that it serves, which clearly goes against the legislative intent of the law.

Your fourth and final question asks if a government entity ultimately produces the requested records, but mistreats the requester in the process, is there any relief available to the requester. Section 2.2-3713 provides remedies for persons denied the rights and privileges of FOIA. If a proper response to the request was provided within five working days as required by subsection B of § 2.2-3704, then it is difficult to argue that the requester's rights under FOIA were denied. As noted above, FOIA guarantees access to records; if this access was granted, then it would appear that FOIA does not provide a remedy for any alleged mistreatment.

In conclusion, a FOIA request from a government employee should not be treated any differently from a request from a citizen or the media, as a government employee does not waive his rights as a citizen of the Commonwealth by accepting public sector employment. At its most basic level, FOIA sets forth the procedures dictating how to respond to a FOIA request. These procedures neither prohibit nor require that other individuals be made aware of a particular FOIA request and there is nothing wrong with advising a third party that a request has been made. However, in the instant case, the Manager's letter appears to be sent not just to advise other employees of the request, but to discourage requests and to criticize an individual for exercising his rights under FOIA. Such a chilling effect is clearly adverse to the policies underlying FOIA. Furthermore, the Manager's letter erroneously accuses the requester of breaching the confidentiality that was promised by the City to its employees in completing the survey. Such a promise of confidentiality was misplaced and should not have been made because the surveys as a whole are not subject to an exemption. All public records are subject to inspection and copying unless specifically exempt by law.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹This survey is the same survey that was the subject of Virginia Freedom of Information Advisory Opinion 04 (2003).

² See Virginia Freedom of Information Advisory Opinion 04 (2003).