Attorney General's Opinion 1991 #007


March 7, 1991

Dr. C.M.G. Buttery
State Health Commissioner, Department of Health

1991 7

You ask whether The Virginia Freedom of Information Act, §§ 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"), authorizes a person to make a continuing request for official records that are not in existence at the time the request is made. As an example, you state that a well driller may request copies of all applications for well permits to be filed with the Department of Health in the future so that he may contact the applicants to advise them of his services.1

I. Applicable Statutes

Section 2.1-340.1 describes the policy underlying the Act and further provides that the Act should be liberally construed to ensure the people of the Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies.

Section 2.1-341 defines the term "official records" as

all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.

Section 2.1-342 provides that all "official records" not subject to one of the Act's 44 exemptions from mandatory disclosure are open to inspection and copying by any Virginia citizen and specifies the procedure for requesting official records from a public body. A response by a public body to a request for inspection and copying of an "official record" generally must be made within five working days following the receipt of the request. See § 2.1-342.

II. Legislative Intent, Based upon Statutory Language, Is That Act Apply Only to Existing Records

It is a well-established rule of statutory construction that various provisions of a statute must be read as a consistent and harmonious whole, with effect given to each word. Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984); VEPCO v. Prince William Co., 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983); 87-88 Va. AG 563, 564; 85-86 Va. AG 177, 178. The primary object in the interpretation of a statute is to ascertain and give effect to the legislative intent underlying the statute. See Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 679, 222 S.E.2d 793, 797 (1976). In defining the term "official records" as "written or printed books . . . prepared, owned, or in the possession of a public body," the General Assembly clearly intended that the Act apply only to official records in existence at the time the particular request for records is made. Otherwise, the requested records could not be produced by the public body within the five working day period required by § 2.1-342(A). Indeed, § 2.1-342(A) expressly provides that "[p]ublic bodies shall not be required to create . . . a particular requested record if it does not already exist."

The conclusion that the definition of "official records" in § 2.1-341 applies only to records in existence at the time the particular request for records is made is further supported by the fact that the General Assembly has authorized citizens to make a request for continuing notifications of public meetings under the Act. See § 2.1-343. If the legislature had intended to authorize such continuing requests for documents, in addition to meeting notifications, it could have done so expressly.

III. Act Applies Only to Records in Existence and in Custody of Public Body at Time Request for Official Records Is Received

Based on the above, it is my opinion that the Act does not authorize a person to make a continuing request for official records that are not in existence at the time the request is made. The Act applies to official records that are in existence and in the custody of a public body at the time the request for these records is received. Compare 86 Conn. Op. Att'y Gen. 79 (1986) (under substantively similar definition of "public records" in Connecticut Freedom of Information Act, "it is clear that it is only existing information which must be disclosed").



1 The Supreme Court of Virginia has held that "the purpose or motivation behind a request is irrelevant to a citizen's entitlement to requested information" pursuant to the Act. Associated Tax Service v. Fitzpatrick, 236 Va. 181, 187, 372 S.E.2d 625, 629 (1988).