ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Failure to respond initially to request for records within required time violates Act. Enforcement; remedies. Act does not require public body to create official record in response to request for information; requires disclosure of existing official records.

May 4, 1989

The Honorable Frank Medico
Member, House of Delegates

89 13

You ask whether Fairfax County (the "County") violated the provisions of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), by not furnishing certain data requested by you and your legislative aide.

I. Facts

By letter dated February 22, 1989, your legislative aide requested the County Executive's Office to provide you with "budget expenditures - total costs to maintain - those persons who lobbied on behalf of [the] County during the 1988 General Assembly session." This February 22, 1989, letter makes no specific reference to the Act.

You renewed this request for information by letter dated March 14, 1989, addressed to the Chairperson of the County's Board of Supervisors. This letter refers to several telephone inquiries to County employees concerning the requested information. The March 14, 1989, letter specifically refers to the Act and requests "the total cost of the . . . County staff that [was] in Richmond to lobby the general assembly members during the 1988 session."

In her letter to you, dated March 16, 1989, the Chairperson responded that "I have asked J. Lambert [the County Executive] to provide the information to you as soon as it is compiled."

I am advised by the County Attorney's office that the information you requested does not exist in the form you requested--that is, the County's expenditures concerning the legislative activities of County employees are not segregated from other County expenditures. The information requested, therefore, if it is to be communicated, must be compiled based upon existing records of County expenditures. I also am advised that the County is compiling the information you requested, and that the information will be provided to you in the near future.

II. Applicable Statutes

Section 2.1-342(A) provides for the mandatory disclosure of "official records." Section 2.1-342(A) further provides, in part:

Any public body covered under the provisions of this chapter [Ch. 21 of Title 2.1] shall make an initial response to citizens requesting records open to inspection within fourteen calendar days from the receipt of the request by the public body. Such citizen request shall designate the requested records with reasonable specificity. If the requested records or public body is excluded from the provisions of this chapter, the public body to which the request is directed shall within fourteen calendar days from the receipt of the request tender a written explanation as to why the records are not available to the requestor. Such explanation shall make specific reference to the applicable provisions of this chapter or other Code sections which make the requested records unavailable. In the event a determination of the availability of the requested records may not be made within the fourteen-calendar-day period, the public body to which the request is directed shall inform the requestor as such, and shall have an additional ten calendar days in which to make a determination of availability. A specific reference to this chapter by the requesting citizen in his records request shall not be necessary to invoke the time limits for response by the public body.

Section 2.1-342(B) excepts certain types of records from the mandatory disclosure requirement of §2.1-342(A). See, e.g., §2.1-342(B)(3) (personnel records) and §2.1-342(B)(4) (memoranda, working papers and correspondence held or requested by the chief executive officer of a county).

Section 2.1-346 provides for the Act's enforcement by petition for mandamus or injunction, supported by an affidavit showing good cause, and addressed to the appropriate court of record. Section 2.1-346.1 authorizes a court to impose a civil penalty upon the appropriate "person or persons" for a willful and knowing violation of the Act.

III. Failure to Respond Initially to February 22 Letter Requesting Information Within Fourteen Days Constitutes Violation of Act; Records Should Be Provided Within Reasonable Time

Section 2.1-342(A) requires that the County make an initial response to a request for official records within fourteen calendar days from the receipt of the request. See generally Att'y Gen. Ann. Rep.: 1982-1983 at 708, 709; 1981-1982 at 440, 441-42. A request for official records must identify the records sought with reasonable specificity, but a specific reference to the Act is not necessary to invoke the time limits for response. See §2.1-342(A). The Act, however, does not require that the County create a document in response to a request for information; rather, the Act requires the disclosure of existing official records. See Att'y Gen. Ann. Rep.: 1983-1984 at 436; 1982-1983 at 727, 728.

The initial request for "budget expenditures" was made on February 22, 1989. You renewed this request on March 14, 1989, for the "total cost of the . . . County staff that [was] in Richmond to lobby the general assembly members during the 1988 session." You were advised by letter dated March 16, 1989, that the County Executive would provide you with the information as soon as it was compiled.

Your February 22, 1989, letter was phrased as a request for information rather than a request for the disclosure of records. This letter was not identified as a request made pursuant to the Act, although such identification is not required by §2.1-342(A). Reasonable people could differ in the determination whether the February 22, 1989, letter was a request made pursuant to the Act. It is my opinion, however, that the February 22, 1989, letter was a request made pursuant to the Act and, further, that the County's failure to respond within fourteen days constitutes a violation of the Act.

Your March 14, 1989, letter also is characterized as a request for information rather than a request for the disclosure of records, but this second request does refer specifically to the Act. The March 16, 1989, response advised you that your request had been forwarded to the County Executive and that the information requested would be provided as soon as it was compiled.

Upon receipt of the March 14, 1989, request, the County could have declined to provide the information requested because the information would have to be compiled or extracted from existing records. The County, therefore, was not obligated by the Act to provide the requested information. The Act does require, however, that the County make an initial response to such a request within fourteen days. At the time of your request for this Opinion, you had received no response from the County other than the March 16, 1989, letter.

It is my opinion that your March 14, 1989, letter that was forwarded to the County Executive was a proper request pursuant to the Act. The March 16, 1989, response from the County Chairperson, although not a response from the custodian of the requested records, was not subsequently modified or repudiated by the actual records' custodian to indicate that the County was not required to provide the information requested. Whenever a public body is required to disclose official records by §2.1-342(A), it is my opinion that such disclosure must be made within a reasonable time considering the nature of the request and the time required to collect the requested records. Compare 1981-1982 Att'y Gen. Ann. Rep., supra. In these circumstances, the County has apparently agreed to compile the information you requested even though it was not legally required to do so. It is further my opinion, therefore, that the County should provide this information within a reasonable time considering the nature of the request and the time required to extract the information from existing County records.

IV. Enforcement of Act Results from Petition for Mandamus or Injunction; Civil Penalties May Be Imposed for Willful and Knowing Violations

You also ask who is to be held accountable for any violation of the Act and the related penalties, if any, for not providing the requested information.

Section 2.1-346 provides for the Act's enforcement by a petition for mandamus or injunction. If such a petition is filed, a circuit court may order that the County provide you with the information you request if the court concludes (1) that the information is contained in existing official records and (2) that the information is subject to mandatory disclosure. Section 2.1-346.1 authorizes a circuit court to impose a civil penalty "upon such person or persons" found to have willfully and knowingly violated the Act.