FOIA Council updates: opinions
In AO-07-08, issued in June, the council wrangled with what constitutes records responsive to a citizen request. A Richmond-area citizen asked for the calendar of the deputy secretary of natural resources, but was told that a single calendar did not exist. The council said that while the secretary might not use a calendar in the traditional sense, she had admitted that she kept multiple electronic files detailing her notes and appointments and that those records would be responsive to the citizen’s request.
In AO-08-08 the council confirmed that Richmond Mayor Douglas Wilder’s citizen advisory committees were not subject to FOIA. which applies to committees formed by public bodies to perform a delegated function or provide advice to the public body. The mayor, however, is not a public body, the council concluded. The council noted that the Richmond City Council passed an ordinance requiring the committees to follow FOIA’s rules and procedures. Wilder vetoed the ordinance, but the city council overrode it. The FOI Advisory Council pointed out that local governments cannot pass laws that conflict with FOIA, but also that FOIA is to be interpreted to promote citizen awareness of government. The council declined to say whether the exact ordinance at issue was in conflict or not.
In AO-09-08, the council tackled the issue of discretion. A Richmond woman complained that a police department was abusing its discretion by withholding records on a 30-year-old case under the exemption for investigation records. While acknowledging that FOIA exemptions are discretionary, and that investigation records can be withheld even if the case is closed, the woman argued that the exemption should not be used because there was no harm in releasing them. The council confirmed that since FOIA’s exemptions are discretionary, the custodian can choose whether to invoke the exemption or to release records even if an exemption could apply. "Regardless of which action the custodian chooses," the council wrote, "he has made a choice, and that choice is an exercise of the discretion granted under FOIA." The council also noted that there is no case law on whether a decision to use an exemption can be challenged in court as an abuse of discretion.
The council was once again asked to examine the financial structure of an entity to determine if it was "wholly or principally" by public funds, making it a public body subject to FOIA. In AO-10-08, the council determined that the Annandale Neighborhood Center was not a public body becaue it received "something less than two-thirds" of its budget from government sources. However, the council also noted that if the alternative housing center the ANC ran was acting as an agent of Fairfax County in providing crisis and housing assistance for teens, then records related to provision of those services would be subject to disclosure under FOIA.
The council determined in AO-11-08 that a letter written by a George Mason University law school professor about a judicial nomination was not subject to FOIA, even though the professor wrote the letter on GMU stationery. The letter expressed the professor’s opinion about a matter and was not within the transaction of public business. The council cautioned public employees to avoid "indicia, such as agency letterhead, that make private records appear to carry the imprimatur of a public body."
AO-12-08 was the council’s restatement of the no-man-is-an-island maxim. A single individual is not a public body under FOIA, the council said, when acting as a liaison to staff. The individual would not be subject to FOIA’s meeting rules, which would be impractical and nearly impossible to follow, but the individual’s records related to the transaction of public business would be subject to disclosure.
In AO-13-08, the council determined that Storm Water Pollution Prevention Plans are not public records, even though they are required by the Department of Conservation and Recreation’s permitting process. DCR’s regulations require that an applicant prepare a SWPPP and have a copy on a construction site and available upon DCR’s request. Because the regulations do not require the DCR to maintain a copy of the SWPPP in their offices, the council concluded that SWPPPs are not public records because the government did not prepare, own or possess them. The council suggested that the General Assembly could always amend the law to specifically make SWPPPs public records.
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