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Home / Opinion Digests / Freedom of Information Act – Affidavit of Good Cause – Violations – Declaratory Relief – Recovery of Costs

Freedom of Information Act – Affidavit of Good Cause – Violations – Declaratory Relief – Recovery of Costs

Hurst v. City of Norfolk (VLW No. 017-8-108, 17pp.) (Lannetti, J.) Norfolk Cir.Ct. Case No. CL17-11119.

Holding: Where the plaintiff-petitioner failed to submit an affidavit of good cause supporting his petition for relief regarding his two requests under the Freedom of Information Act (FOIA), the defendant-city did not object within seven days after the petition was filed and we grant leave for the petitioner to append his affidavit to the petition. Where the city responded to the petitioner’s two FOIA requests nine working days after receiving them and the statute requires a response within five working days, the city did not comply with FOIA timeliness requirements in responding to the petitioner’s two requests. Where the petitioner seeks declaratory relief and the FOIA has specific associated statutorily conferred identifiable causes of action for which the court can provide relief—specifically, mandamus or injunction—we therefore lack the authority to award declaratory relief and are compelled to grant the city’s motion to strike that claim. Where the petitioner seeks to recover costs associated with filing his FOIA requests, the city communicated extensively with the petitioner, the city made efforts to work with the petitioner and provide him the documents he sought, and there is an absence of bad faith by the city, we find that the petitioner did not “substantially prevail” on his claim and ordering the city to reimburse the petitioner for his costs is not warranted.

Facts: On Tuesday, August 1, 2017, the petitioner submitted a Freedom of Information Act (FOIA) request to the city seeking information related to and contained in an article appearing in a newspaper. On Monday, August 7, a public relations manager for the city’s FOIA office replied that his request was too vague for the city to respond appropriately and asked for clarification. Following several email exchanges, the city forwarded a copy of the records to the petitioner by mail on August 14. At 4:34 p.m. on Friday, August 18, the petitioner submitted a second FOIA request to the city, and within two minutes followed it up with a second email requesting an immediate response confirming receipt of his request.  On Monday, August 21, the city sent the petitioner an email acknowledging receipt of his FOIA request. On Tuesday, August 29, a city communications manager responded by email with an attached letter from the public relations manager for the FOIA office, indicating the city could not “provide the requested records or determine whether they are available within the five working days required by FOIA” and “invoking subsection B 4 of § 2.2-3704 to provide … seven additional working days to respond” to the request. The petitioner sent an email outlining grievances related to his FOIA requests, copying the city attorney and council members. On August 30, the deputy city attorney responded and apologized for the delay and indicating that the request was being expedited. On September 1, the communications manager emailed an attached letter signed by the public relations manager that included an estimated cost of satisfying the request and requesting a deposit in that amount be made should the petitioner want to proceed. The petitioner did not respond. On September 26, the petitioner appeared before the city council and submitted a draft of his petition. On September 29, the deputy city attorney called the petitioner and offered to produce the documents free of charge. The petitioner received the documents on October 5, and concedes that he ultimately received all documents responsive to the second FOIA request.

The petitioner filed “Petition for Declaratory, Mandamus, and Injunctive Relief,” alleging that the city failed to provide a timely response to his two FOIA requests and asking the court to (1) find the city violated FOIA by failing to provide all information requested, (2) find that the city violated FOIA by failing to adhere to the FOIA-mandated time limits, (3) issue a writ of mandamus to the city directing it to provide copies of communications it had with the newspaper’s reporter and with the FBI related to the newspaper article, and (4) award him reasonable costs and attorney’s fees. He failed to provide a supporting affidavit with his petition as required by FOIA, although he produced one at trial. At trial, at the conclusion of the petitioner’s case, the city moved to strike the petitioner’s evidence, which the court took under advisement. At the conclusion of the trial, the court granted the parties leave to file post-trial briefs.

Analysis: The city contends that because the petitioner failed to submit an affidavit, the city—as well as the court—is unable to assess or argue whether there is good cause to support the petition. The city’s objection to this procedural defect is presumptively waived, as the city did not object within seven days after the petition was filed. Because the city first objected in its reply brief, which was filed eighteen days after the petition, the court grants the petitioner leave to append his affidavit to the petition.

The petitioner alleges that the city violated FOIA by failing to timely and properly respond to the first FOIA request within five working days. Under FOIA, within five working days of receiving a request a public body must either produce the requested records or, under the circumstances here, provide a written response indicating that it is not “practically possible” to provide the records or determine whether they are available. If this response is timely provided, the public body is given an additional seven working days in which to provide one of the other allowed responses. Of note, Section 2.2-3704(B) states that the FOIA requirements relate to a request that identifies the requested public records “with reasonable specificity.” The statute does not identify what is required in the event a request is not reasonably specific. According to FOIA, the “[f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of” FOIA. Hence, a public body that fails to respond to a vague FOIA request—relying on the safe harbor of the “reasonable specificity” requirement—would be in violation for failing to respond. Additionally, the statute provides only five options for responding to a FOIA request, none of which toll the response period while the additional specificity is sought. It therefore appears that a public body must respond to even vague FOIA requests within five days. Regardless, we find that the first FOIA request has the reasonable specificity required by statute. According to the FOIA Advisory Council, a request contains sufficient specificity if “the request identif[ies] the records sought in sufficient detail that the public body can begin to process the request and, if needed, ask relevant questions to clarify the request.” (Emphasis added.) The time spent clarifying the request did not toll the city’s requirement to respond using one of the statutorily allowable responses. We find that when the city provided the newspaper records on August 14, the production was four days late. With respect to the articles records the petitioner requested, the city notified the petitioner in its August 8 letter—which, as discussed supra, was a timely response—that it would proceed to process the request for documents once the deposit was received. Because the petitioner never forwarded the deposit, the city was not obligated to forward the article records to him.

The petitioner alleges that the city violated FOIA by failing to timely respond to the second FOIA request, which was submitted on Friday, August 18. Because the first day to respond “is the first working day after the request was actually received, the five-day timeline did not begin until Monday, August 21, which meant that the city was required to respond on or before August 25. Although the city confirmed receipt on August 21, this was not a recognized response under Section 2.2-3704(B). The city ultimately provided the required response by email on August 29, with an attached letter invoking Section 2.2-3704(B)(4), thereby allowing the city seven more working days to respond. The court also disagrees with the city’s argument that the failure to respond within five working days is irrelevant because the ultimate production of documents was within twelve working days of receipt of the second FOIA request—the initial five working days in which to respond plus the seven additional working days allowed by statute if additional time is required. The language of the statute is clear. Because a FOIA response was required on or before August 25, the city’s August 29 response was not timely.

The style of the petition indicates that the petitioner seeks declaratory, mandamus, and injunctive relief. The petition—including the prayer for relief—does not request injunctive relief, however. At trial, the petitioner orally amended the relief sought, acknowledged that all of the documents he requested were produced to his satisfaction, and abandoned his claims for mandamus and injunctive relief. The petitioner now seeks only a declaration that the city violated FOIA in handling his requests and reimbursement of his costs related to this case, which total approximately $100. At trial, the city moved to strike the petitioner’s evidence, arguing that declaratory relief is not an available remedy under FOIA. We agree, as the statutorily conferred rights and privileges under FOIA have specific associated statutorily conferred identifiable causes of action for which the court can provide relief—specifically, mandamus or injunction. We therefore lack the authority to award declaratory relief and are compelled to grant the city’s motion to strike that claim. The intent of the available remedies is to require the public body to produce the records, with reimbursement of the requester’s costs and imposition of civil fines available to disincentivize noncompliance. A declaratory judgment simply is not within the statutory remedial framework.

The petitioner seeks to recover his costs related to this suit, including his filing fees and the postage necessary to mail the petition. As discussed supra, the petition proved at trial that the city’s responses to both of hi FOIA requests were untimely. The question before us is whether this is sufficient to find that the petitioner substantially prevailed on the petition. Although there is no specific means to identify when an individual “substantially prevails under FOIA, the threshold appears to be high. We find that, under the circumstances present here, the city’s errors are minor and merely technical statutory violations that do not rise to a level warranting an award of costs. Based on the extensive communications between the petitioner and the city, the city’s efforts to work with the petitioner and provide him the documents he sought, and the absence of bad faith by the city, we find that ordering the city to reimburse the petitioner for his costs is not warranted.

Motion to strike sustained. Petition denied.

VLW 017-8-108