FOI Advisory Council Opinion AO-05-06


May 25, 2006

John Fenter
Virginia Beach, 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 correspondence received April 28, 2006 and electronic mail dated May 8, 2006.

Dear Mr. Fenter:

You have asked whether the Norfolk International Airport Authority (the Authority) has failed to respond in the time and manner required by the Virginia Freedom of Information Act (FOIA) to certain requests for records. The facts regarding this situation are set forth below, based upon the copies of the request and response letters which you provided.

Your initial request, made by letter dated March 8, 2006, requested from the Authority a copy of any Federal or Virginia statute or regulation authorizing the Airport Authority to search any vehicle on airport property, outside the Federal "sterile area," without prior probable cause or a valid search warrant issued by a Federal or Virginia court. The Executive Director of the Authority replied by letter dated March 10, 2006, and indicated that your request had been forwarded to the Authority's legal counsel for response. Counsel for the Authority (Counsel) denied your request by letter dated March 15, 2006, stating that your request was in substance, a request for legal advice and/or legal research, and [FOIA] is not applicable. Counsel's letter also cited 49 C.F.R. § 1520, after stating that both federal and state law prohibit the release of sensitive security information. Counsel suggested you contact the Transportation Security Administration for more information.

In a subsequent letter addressed to the Executive Director dated March 21, 2006, you indicated that the March 15, 2006, response letter from Counsel was not responsive to your FOIA request, and that you believed your rights under FOIA had been violated. You concluded your letter of March 21, 2006, with a reiteration and clarification of your FOIA request in the following language:

Please provide me with any records held by your authority regarding:

1. The history or circumstances relating to the erection of the Norfolk Airport Authority signs on the access roads to the Norfolk International Airport stating that "All vehicles entering airport are subject to search."

2. Any federal or Commonwealth of Virginia statute or regulation authorizing the Norfolk Airport Authority, the Norfolk Airport Police, or any other entity associated with the Norfolk Airport International Airport to establish a policy that all vehicles entering the airport are subject to search.

You also requested prior notification if the estimated cost of providing these records would exceed $30. In a reply letter dated March 27, 2006, Counsel indicated that a response would be sent to you after the Authority received advice from the Transportation Security Administration. It appears that as of May 8, 2006, you have received no further reply from the Authority regarding this request.

The policy of FOIA, set forth by the General Assembly in § 2.2-3701, is to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees....Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute...all public records shall be available for inspection and copying upon request. FOIA further provides in § 2.2-3704 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 during the regular office hours of the custodian of such records.

In considering any records request, the initial step is to determine whether the records sought are public records subject to FOIA. Public records are defined in § 2.2-3701 to include any record, 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. Your request of March 8, 2006, and your second enumerated request of March 21, 2006, both asked for any federal or Virginia statute or regulation authorizing certain searches to be conducted by the Authority. While the Authority could choose to provide such information, the opinion of this office is that such a request is not a request for public records as contemplated by FOIA. Statutes and regulations are publicly available through numerous other sources.1 In Virginia, all statutes and regulations are published and publicly available, pursuant to laws outside of FOIA, such as the Administrative Process Act, Ch. 40 of Title 2.2, and the enabling statute for the Virginia Code Commission, Ch. 15 of Title 30. The Virginia Code Commission has the specific statutory duty to publish the Code of Virginia, the Virginia Administrative Code, and the Register of Regulations.   It is not the responsibility of other public bodies to provide copies of these statutes and regulations, although many choose to do so. For example, this office publishes a copy of FOIA on its website, and we are happy to provide paper copies of FOIA upon request as well. Similarly, the Authority could choose to provide copies of statutes and regulations relevant to its work, but FOIA does not require it to do so.

While your request for statutes and regulations is not a request governed by FOIA, your other request from your letter of March 21, 2006, does request public records subject to FOIA. That request asks for any records regarding the history or circumstances relating to the posting of certain signs by the Authority. That request therefore encompasses records such as meeting minutes, memoranda, work orders, receipts, or other records concerning the posting of the signs, all of which fall within the definition of public records (although exemptions may still apply). As such, the Authority should have provided you with one of the four responses permitted under § 2.2-3704 within five working days of the receipt of your request: (1) provide the records; (2) deny your request in writing, citing the appropriate exemption(s) that allow the Authority to withhold the records; (3) provide the request records in part and deny your request in part, again citing the appropriate exemption(s) in writing that allow portions of the request to be withheld; or (4) inform you in writing that the Authority needed an additional seven working days to respond. If the public body needs more than the additional seven working days to respond, FOIA requires the public body to make reasonable efforts to reach an agreement with you, the requester, concerning the production of records. If no agreement is reached, the public body may then petition a court for additional time to respond.

Based upon the correspondence you provided, it appears that your request letter was dated Tuesday, March 21, 2006 and the response to that letter was dated Monday, March 27, 2006. While it is not known precisely when the Authority received that request, it appears that the response was sent within the five working days allowed by FOIA.   However, the response itself was not one of the four responses permitted by FOIA. In the response, the Authority acknowledged receipt of your request and stated that the Authority would respond further after receiving advice from the Transportation Security Administration. The Authority did not provide the requested records, did not deny your request pursuant to an exemption, and did not invoke the additional seven working days to respond allowed under FOIA. Additionally, based upon your correspondence, it appears that the Authority did not attempt to reach an agreement with you concerning the production of the requested records, and did not petition a court for additional time to respond. Based upon your electronic mail of May 8, 2006, it appears that as of that date, the Authority has not supplemented its response. Thus, in regard to this request for records regarding the history and circumstances of the signs, it appears that the Authority has failed to comply with the procedure for responding to requests as mandated by FOIA.

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


Maria J.K. Everett
Executive Director

1For example, statutes are published in the Acts of Assembly, as well as in the Code of Virginia. Regulations are published in the Virginia Administrative Code. Printed versions of these resources are available at many libraries, including court libraries, law school libraries, and the Virginia Legislative Reference Center. Both the Code of Virginia and the Virginia Administrative Code are also available online through the Legislative Information System at
2See Code of Virginia § 30-146.
3If the request was received the same day it was dated, Tuesday, March 21, 2006, then the fifth and final day to respond would have been Tuesday, March 28, 2006. Presuming that the response was sent on the day it was dated, March 27, 2006, it was therefore sent within the five working day time limit.