March 27, 2002

Mr. Arthur E. Berkley
Virginia Building and Code Officials Association
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 letter of December 26, 2001, and our conversation on February 7, 2002.

Dear Mr. Berkley:

You have asked two questions regarding the disclosure of records of expenditures of a public body. The first question is whether the Department of Housing and Community Development (DHCD) is required, under the Virginia Freedom of Information Act (FOIA), to release its records of expenditure (i.e., purchase orders, invoices, interdepartmental transfers, and or accounting ledgers) for the Building Code Academy.

Subdivision 14 of § 36-139 of the Code of Virginia states that DHCD shall establish and operate the Building Code Academy for the training of personnel in building regulations promulgated by the Board of Housing and Community Development. The Academy is funded by levies DHCD collects from local building departments pursuant to § 36-137. You stated that you requested the records of expenditures for the Building Code Academy and were verbally denied access to the records.

Subsection A of § 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. As such, unless a specific statutory provision exempts the requested record, it must be made available upon request. FOIA does not exempt DHCD's records of expenditures from disclosure, nor is the disclosure of such records otherwise prohibited by law. Therefore, to the extent the public body maintains the types of records of expenditures you are seeking, they are subject to the mandatory disclosure requirements of FOIA and should be released.

Your second question is whether DHCD is permitted to release a summary of expenditures in lieu of itemized expenditures. You stated that you would like to ensure that the records of expenditures provided to you in response to your FOIA request are not in the form of a summary, but rather a complete, detailed breakdown of expenditures.

FOIA does not prescribe how records are to be kept by a public body. The format or degree of detail included in a record is within the discretion of the public body that is the custodian of the record. Specifically, nothing in FOIA prohibits DHCD from grouping related expenditures together in a single line item. However, if documents currently exist that are responsive to your request, (i.e., a summary report, or a detailed report, or both) then absent an exemption, those records would be subject to the mandatory disclosure provisions of FOIA.

Subsection G of § 2.2-3704 states no public body shall be required to create a new record if the record does not already exist. Here, the actual documents prepared by or in the possession of DHCD will determine whether you receive a summary report or a detailed report for expenditures. If DHCD maintains its records of expenditures in detailed form, the Department must release the records as kept. If, however, DHCD maintains its records of expenditures in summary form, DHCD is not required to create a new more detailed record of expenditures.¹

One further note, you stated that DHCD has verbally denied your previous request for accounting records of the Building Code Academy. Pursuant to subsection B of § 2.2-3704, FOIA requires the custodian of the record to make one of four statutory responses. If an agency elects to withhold a requested record, the denial must (i) be in writing, (ii) identify with reasonable particularity the volume and subject matter of withheld records, and (iii) cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1983-1984 Op. Atty. Gen. Va. 436.