October 16, 2002

Mr. Don Newsom
Williamsburg, 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 August 6, 2002.

Dear Mr. Newsom:

You have asked a series of questions regarding access to property tax records under the Virginia Freedom of Information Act (FOIA). You indicate that you have attempted to obtain copies of records pertaining to delinquent personal property taxes in various localities. It appears from your correspondence that you are interested in obtaining the list of delinquent real property taxpayers in each locality, including the parcel ID, a legal description of the property, and owner's name and mailing address. You indicate that you have received various responses to your requests - one county provided all of the information you requested, one county allowed you to look at the record book, which contained incomplete mailing addresses, but did not allow copies to be made, and one county refused to provide any of the requested information.

Subsection A of § 2.2-3704 of the Code of Virginia provides 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. Subdivision A2 of § 2.2-3705 exempts [s]tate income, business, and estate tax returns, personal property tax returns, scholastic and confidential information held pursuant to §58.1-3. Subsection A of § 58.1-3 makes it a Class 2 misdemeanor for any state or local tax or revenue official or employee to divulge any information acquired by him in the performance of his duties with respect to the transactions, property, including personal property, income or business of any person, firm or corporation, except in specific, enumerated circumstances. This prohibition, however, does not extend to matters required by law to be entered on any public assessment roll or book, nor does it prohibit the publication of a delinquent tax list.

Certain information concerning real estate is required to be open to the public pursuant to various provisions of the tax code found in Title 58.1 of the Code of Virginia. Subsection A of § 58.1-3331 requires all property appraisal cards to be open for inspection. Section 58.1-3115 further requires that assessment books must be arranged alphabetically by taxpayer name and include the address of each taxpayer. In addition to this public information, § 58.1-3921 requires the treasurer of every city and county to annually compile a list listing real estate delinquent for the non-payment of taxes. The list must contain the name of the taxpayer and any other information that in the opinion of the Department of Taxation may assist in the collection of the taxes.

You first asked whether a list of delinquent real property taxpayers with parcel ID, legal description, and owner's name with mailing address is a public record under FOIA. Based upon the various statutes set forth above, it would appear that all of those pieces of information are subject to public disclosure. The delinquent tax list compiled each year is subject to disclosure pursuant to subsection B of § 58.1-3. In addition, public property books list the name, address and amount of assessment for each parcel of property.¹ Please note, however, that subsection D of § 2.2-3704 states that no public body shall be required to create a new record if the record does not already exist. If the delinquent tax list does not contain all of the fields of information that you have requested, the treasurer would not be required to create such a document. You could, however, match up the names from the delinquent list with the names in the property assessment books and find each piece of information that you seek.

You next ask if you are entitled to receive a copy of the records at a reasonable cost. Subsection A of § 2.2-3704 requires that all public records be open to inspection and copying by any citizens of the Commonwealth. (Emphasis added.) Therefore, the requester has the right to decide whether to simply inspect the records, or to also make a copy. Subsection F of § 2.2-3704 allows a public body to make reasonable charges for its actual costs incurred in accessing, duplicating, supplying, or searching for the requested records.

You ask if you may obtain this information on a computer disk if the treasurer's office stores the information on a computer, and if so, what would be the reasonable cost for this. Subsection G of § 2.2-3704 states that if a public body maintains records in a computer database, the non-exempt portions of the database must be made available to the requester. The requester has the right to obtain those records in any tangible medium identified by the requester provided that the medium is used by the public body in the regular course of business. Like charges for paper copies of public records, copies of electronic records must be made available at a reasonable cost, not to exceed the actual cost.

You ask if there is any requirement as to how long a public body has to respond to a FOIA request, and what happens if a request is ignored. Subsection B of § 2.2-3704 requires a public body to respond to a request for records within five working days. If the public body is withholding all or part of the requested records, the response must be in writing and must state the statutory exemption allowing such records to be withheld. The requester may also determine that it is not practically possible to provide the records within the five-day period. This latter response must also be in writing, stating the reason that the response is practically impossible, and the public body will automatically receive an additional seven working days to respond. Subsection E of § 2.2-3704 states that failure to respond to a request is deemed to be a denial, and a violation of FOIA. Once a violation has occurred, a person may enforce the rights and privileges of FOIA by filing a petition for mandamus or injunction in court, pursuant to § 2.2-3713.

Finally, you ask if you may reference a written opinion of the Freedom of Information Advisory Council in a letter to a county treasurer. Written opinions are a matter of public record and may be used in whatever capacity you see fit. Please keep in mind, however, that these opinions are advisory.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. 1999 Op. Atty. Gen. Va. 17.