FOI Advisory Council Opinion AO-05-03


February 27, 2003

Mr. Daniel K. Mouer
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 e-mail of January 2, 2003.

Dear Mr. Mouer:

You have asked whether you may charge for public records provided in response to a subpoena just as you would charge for those same records if they were provided in response to a request under the Virginia Freedom of Information Act (FOIA). You indicate that several times a year, your office receives a subpoena ordering certain records to be provided for a court case. In these instances, you indicate that the City of Richmond, for whom you work, is not a party to the litigation.

Subsection A of § 2.2-3704 of the Code of Virginia 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. Section 2.2-3701 defines "public records" to include all writings and recordings regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. In applying these two provisions, it is clear that the records held by the City's Bureau of Permits and Inspections would be public records open to inspection and copying unless a specific exemption applied.

FOIA is largely a procedural act, and it sets forth the procedures and framework as to how citizens of the Commonwealth and representatives of the media may request public records, and how public bodies, officials, and employees must respond to such requests. FOIA seeks to balance the rights of access and the need of government to operate efficiently and effectively. One of the tools that FOIA uses to achieve such a balance is the provision relating to the charges that a public body may impose for providing access to records. Subsection F of § 2.2-3704 states that a public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. Therefore, if an individual requested records from your office under FOIA, you would be allowed to charge the requester the actual costs involved in responding to the request.

In the situation you present, the records have not been requested by a member of the public or media contacting your office and asking for particular records. Instead, you indicate that the records are requested via a subpoena duces tecum, issued by a court of the Commonwealth. Subpoenas are issued once parties are involved in litigation, and are part of the judicial process. The Rules of the Supreme Court of Virginia ("the Rules") set forth the procedures and framework for litigants to follow. Subsection (c) of Rule 4:9 states that [u]pon written request therefore filed with the clerk of the court in which the action or suit is pending by counsel of record for any party or by a party having no counsel in any pending case the clerk shall issue to a person not a party therein a subpoena duces tecum which shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents and tangible things designated and described in said request. The rule makes no mention of payment specifically, but states that upon written motion promptly made by the person required to produce the records, the court may quash or modify the subpoena if it is unreasonable and oppressive or condition denial of the motion to quash or modify upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the documents and tangible things so designated or described. Subsection (d) of Rule 4:9 states that if a party fails or refuses to obey an order, it may proceed as provided by Rule 4:12(b)(2), which allows, among other things, the court to issue an order of contempt.

The Rules do not provide a specific provision for public bodies that are ordered to produce records. Instead, if the subpoena requested a burdensome number of records, the public body's remedy, like any other private entity that receives a subpoena, would be to petition the court to quash or modify the order on the grounds that the request was unreasonable or oppressive.

As stated above, FOIA governs access to records when requested by a citizen of the Commonwealth or a representative of the media as part of their right of access granted under FOIA. However, in the context of litigation, the Rules govern the procedures for production of records. A subpoena is a court order commanding that certain documents be produced. In the context of a subpoena, a public body would not follow the procedures set forth in FOIA. Even if the same records could also be accessed by a citizen or representative of the media pursuant to a FOIA request, the Rules must be followed once a subpoena has been issued. Therefore, the provisions related to charges for requested records under FOIA do not apply when those records are ordered by a subpoena. The party to whom the subpoena is issued, whether it be a private entity or a public body, must produce the records. If the costs associated with the production are unreasonable, then a motion to quash or modify the subpoena may be filed, and the court, in response, may order the requesting party to pay reasonable costs for the production of the records. The Supreme Court has set forth its own Rules dealing with the issuing of a subpoena and the response of a party ordered to produce records. These Rules would supersede any procedures set forth in FOIA for a general request for access to public records.

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


Maria J.K. Everett
Executive Director