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The Virginia Freedom of Information Act (“VFOIA”) proclaims that “[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.” Va. Code § 2.2-3700(B). To live up to its objectives, VFOIA must ensure an adequate and lawful search. In its current state, VFOIA fails to do this and as a result, Virginians are left with more promise than substance. This article proposes legislative changes that could help to align VFOIA’s objectives with its effect.

The term “search” (in its various forms) is stated seven times in the statute. In each of these references, the term is used to refer to the critical process of locating public records—the very essence of VFOIA. Despite this prominent presence, “search” is not defined in VFOIA’s definitions section (Va. Code § 2.2-3701). One Virginia case barely and vaguely alludes to the parameters of an adequate and lawful VFOIA search but in general, VFOIA trails behind federal FOIA when it comes to the extent to which the adequacy of a search has been litigated and assessed. This is the case even though VFOIA was enacted in 1968—just two years after the federal FOIA statute (enacted in 1966). The difference in the number of people to whom each statute applies does not fully explain and justify the differential in the level of discourse and development between VFOIA and federal FOIA. [As this article is not a comparative law analysis, it will not delve further into the substantive differences between VFOIA and federal FOIA. For additional information on the adequacy of a search under federal FOIA, the U.S. Department of Justice provides a compendium of federal court decisions on this topic; FOIA Wiki provides an overview; as does CRS; and LCW summarizes and explains a recent search-related case in the Ninth Circuit.]

Resort to the Virginia Freedom of Information Advisory Council (hereinafter, the “VFOIA Council”) does little to further materialize VFOIA’s promise. Per its enabling statute (Va. Code § 30-179), the VFOIA Council is an advisory council in the legislative branch which is tasked with encouraging and facilitating compliance with VFOIA. The VFOIA Council website states in part that “[t]he FOIA Council answers questions from private citizens, state and local public officials, and the media about access to public records and meetings.” It goes on to state that “[a]s part of its statutory duties” … “the [VFOIA Council] is charged with providing opinions about the application and interpretation of [VFOIA], conducting [VFOIA] training seminars, and publishing educational materials.” The VFOIA Council is neither a lawmaking body, nor is it a court of law, nor does it involve itself in pending litigation. Furthermore, opinions by the VFOIA Council are non-binding (but can be persuasive).

In a recent citizen inquiry, the following was asked of the VFOIA Council:

What constitutes an adequate and lawful search as the term “search” is used in the Code of Virginia at §§ 2.2-3704(C), 2.2-3704(F) and 2.2-3704.1(A)(6)? To elaborate for clarity, if the Council were training a new FOIA Officer on how to conduct an adequate and lawful search under VFOIA, what instructions, parameters and factors would the Council present to the new FOIA Officer?

The VFOIA Council responded as follows:

Please see AO-04-10 regarding searches for public records; as stated therein, “the circumstances of a search may vary depending on any number of factors, such as the nature and scope of the request, the volume of records being requested, the age of the records, the media upon which the records are recorded and the manner in which they are kept….while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith.”

The advisory opinion referenced in the VFOIA Council’s response (hereinafter, “AO-04-10”) states in relevant part that “FOIA does not specify the extent to which a public body must search for records in response to a request. Our research did not reveal any published opinions of the Virginia courts, Attorney General, or this office directly addressing this issue.” AO-04-10 goes on to state: “… there can be no bright-line rule setting forth exact requirements for every search. Questions of reasonableness are matters for the courts to decide. I would also note that if the extent of a search becomes an issue in litigation, it is within the powers of a court to order a public body to perform a search and to delineate the parameters of that search.” [footnotes omitted]

Even assuming that the VFOIA Council’s position (articulated in AO-04-10) that “there can be no bright-line rule setting forth exact requirements for every search” does not amount to a logical fallacy, there certainly can be statutory language establishing fundamental parameters for every search, along with core procedures—applied universally to every search—which ensure an adequate and lawful search.

AO-04-10 goes on to quote the Supreme Court of Virginia stating that the “law never presumes that a man will violate the law. Rather, the ancient presumption is that every man will obey the law … a similar presumption follows the public official into his office” (quoting from WTAR Radio-TV Corporation v. City Council of the City of Virginia Beach, 216 Va. 892 (1976)). In the aforementioned case, the dispositive question was “whether petitioners’ allegations of previously consummated violations of [VFOIA] were sufficient to support the issuance of the requested injunction restraining future violations.” The High Court was making the point that while a previous course of conduct [e.g., a previously consummated VFOIA violation] may raise an inference that such conduct will be repeated, a “mere inference does not support an apprehension with reasonable probability such as would justify imposition of a judicial sanction.” The case neither mentions the term “search”, nor is it about VFOIA searches, nor does it suggest that there is a presumption of competency in “good faith” VFOIA searches, nor does it state that the presumption of law-obeyance cannot be rebutted with evidence of current government dishonesty or misbehavior. Statutory language that articulates a more detailed standard for an adequate and lawful VFOIA search would not disturb the presumption described in WTAR Radio-TV Corporation.

In AO-04-10, the VFOIA Council also states that “[q]uestions of reasonableness are matters for the courts to decide.” Be that as it may, courts regularly look to statutory language for direction and when a statute does not provide parameters for an adequate and lawful VFOIA search, at least some courts would be hesitant to legislate from the bench and create search parameters. Other courts may end up ruling arbitrarily or inconsistently on the matter. Thus, a “good faith” VFOIA search is hampered and threatened by the absence of statutory specificity and guidance. Indeed, the very same case cited in AO-04-10 states: “Whether the enforcement provisions of [VFOIA] should be amended, and if so, in what manner, are matters of public policy solely within the jurisdiction of the General Assembly.”

To ensure that Virginians benefit from VFOIA’s promise, the Virginia General Assembly should consider amending VFOIA as follows:

1.) Define the term “search” within the statute. At a minimum, the definition should include that a VFOIA search is a competent, thorough search, the parameters of which are articulable, conducted by a VFOIA-trained individual, and which is reasonably calculated to uncover all relevant public records;

2.) Require VFOIA search-specific training. As part of the training it provides pursuant to Va. Code §§ 2.2-3704.2 and 2.2-3704.3, the VFOIA Council should provide instruction on how to conduct an adequate and lawful VFOIA search. The instruction provided by the VFOIA Council should be comprehensive, detailed and reproducible. This instruction should extend well beyond the current procedure of advising the trainee that “any search for records made under FOIA must be carried out in good faith.”;

3.) Implement a VFOIA search affidavit process. Require the public body to produce (upon request) a reasonably detailed, nonconclusory affidavit, submitted in good faith, that describes the search process and demonstrates that the public body undertook an adequate and lawful VFOIA search. The affidavit should also include a list of each record withheld in whole or in part, with identifying characteristics, such as title, date, number of pages, addressor/addressee and general subject matter; and

4.) Include a provision to guard against conflict of interest. For public bodies with sufficient personnel, this provision should establish a sturdy procedural firewall between the trained individual(s) conducting the VFOIA search and public officials and/or employees whose interests may come into conflict with the VFOIA production.

At least two recent petitions—one filed in 2015 and the other in 2020—have alleged claims related to the adequacy of VFOIA searches. It is likely that adequacy of a VFOIA search will come up in future litigation. VFOIA should be amended to provide clear guidance and procedure for an adequate and lawful VFOIA search.

On August 4, 1822, Virginian James Madison penned a letter in which he stated that “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” In the spirit of Madison’s admonition, Virginia’s General Assembly should legislate to render VFOIA meaningful and effective for the people and commerce of the Commonwealth.

Thanks to Alan Gernhardt, Esq., Executive Director of the Virginia Freedom of Information Advisory Council, for expeditiously responding to the citizen inquiry.