Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiff requested that defendant city provide all documents relating to finalizing ballot language for a 2020 casino referendum, requested 2022 documents concerning specific phrases, and made a second request that sought documents with one more phrase, plaintiff has not adequately pleaded most of his claims under the Virginia Freedom of Information Act.
However, plaintiff has adequately pleaded that the city violated VFOIA “by not producing records responsive to the second FOIA request[.]”
Expensive undertaking
On June 23, 2022, plaintiff Stanfield sent his VFOIA request to all members of the Norfolk City Council, including McClellan and Smigiel, two of the defendants in this case. Smigiel responded the same day by emailing Stanfield a link to the city’s VFOIA page. Smigiel also denied that he had any relevant documents and informed him the city would be handling the request.
Littlefield, a VFOIA officer, acknowledged the request and emailed Stanfield to get his full street address. He responded the same day.
On July 19, the city emailed Stanfield a cost estimate for the second part of the request, the phrase-specific search. The estimate was $856 and prepayment was required.
On July 1, Stanfield emailed McClellan and asked that she personally search for documents containing an additional phrase. Stanfield asked McClellan not to “reroute” this second VFOIA because “I am not financially able to pay for these public records, if they exist.”
Stanfield sent a follow-up email on July 18. Two days later, the city sent him a $37 estimate to conduct the search. The city also informed him that the charges would not be waived.
Stanfield sued the city, Smigiel and McClellan. He alleged five claims. Defendants demurred.
First VFOA request
“Stanfield alleges that the City failed to respond timely to the First FOIA Request. Specifically, he asserts that he adequately demonstrated that he was a Virginia citizen by listing ‘Yorktown, Virginia,’ in his FOIA request and that the five-day FOIA response period therefore started the day after the City’s receipt of the request, i.e., on June 24. The City, on the other hand, argues that the response period started the day after the City received Stanfield’s full address, i.e., on July 2. The Court agrees with the City.
“FOIA expressly provides that ‘[t]he custodian [of records] may require the requester to provide his name and legal address.’ Va. Code§ 2.2-3704(A)[.] …The common understanding of a person’s ‘legal address’ includes the registered lot number and street name. …
“The Court holds that verification of a requester’s legal address acts as a gatekeeping device to ensure only eligible citizens of the Commonwealth gain access to public records under FOIA. …
“Hence, if a public body properly requests the requester’s legal address, there is no tolling of the response period; rather, the Court holds that the public body has not received a proper FOIA request until the address is received.
“Here, Stanfield did not provide his legal address to the City until July 1.” That is the date the request was properly submitted.
The city provided an estimate of the cost to fulfil the request. The VFOIA allows a provider to require a deposit when the cost could exceed $200. “Per the statute, the response period was tolled — and the City was not required to take any further action — between notice of the cost estimate and receipt of the deposit.”
The demurrer is sustained for this claim, which is dismissed with prejudice.
Request to McClellan
“Stanfield alleges that Councilwoman McClellan violated FOIA by failing to timely respond to the Second FOIA Request, which Stanfield emailed to her on July 1, 2022. The City asserts that Stanfield is precluded from seeking information subject to FOIA from individual public officials because they are not public bodies and that the City promptly responded when it became aware of the request on July 18.
“The Court holds that although McClellan — as an agent or employee of the City — could receive a FOIA request on behalf of the City, she had no obligation to respond, individually, under FOIA. …
“The Court finds that the statutory FOIA response period begins when a public body receives a valid FOIA request, either directly from the requestor or via an agent or employee of the public body.”
McClellan is dismissed as a party to the suit.
City’s response to second request
“Stanfield asserts that the City violated FOIA because it never provided documents responsive to the Second FOIA Request, despite the fact that the City’s estimated cost associated with producing those records was less than $200.
“The City claims that it was relieved of its obligation to produce the records because Stanfield stated in his request that he was not financially able to pay for them. …
“Production of public records that will cost the public body less than $200 is not contingent upon payment — or presumably upon the requester’s ability to pay, or the public body’s assessment of the requester’s ability to pay. Rather, the public body normally is compelled to produce such records ‘without waiting to hear further from a requester.’”
The demurrer for this claim is overruled.
Cost of production
“The Court finds that Stanfield’s First FOIA Request, which identified two items in one email, constituted a single FOIA request. Further, the Court agrees with the City that the absence of a cost estimate for one part of the request — and inclusion of a cost estimate for the other part — sufficiently communicated that there were no additional costs beyond those indicated.
“The Demurrer therefore is sustained with respect to this part of the claim.”
Claim against Smigiel
“As an initial matter, the First FOIA Request does not appear to request any public records that would be unique to any individual councilmember. Rather, it appears to be a request for public records that are in the possession of the City. … [I]dividual councilmembers themselves have no duty to adhere to the FOIA procedures and deadlines, as they are not public bodies.
“Smigiel has no duty to produce responsive records to Stanfield directly. …
“Additionally, Stanfield has not adequately pleaded that Smigiel’s response – that he had no responsive documents to the First FOIA Request – was untrue. … Stanfield offers no allegations to support that Smigiel willfully and knowingly violated FOIA.”
Smigiel is dismissed as a party to this suit.
Stanfield v. City of Norfolk, et al., Record No. CL-22-10511, Sept. 2, 2022. City of Norfolk Circuit Court (Lannetti). Andre Fox, Joshua Stanfield for the parties. VLW 022-8-063, 18 pp.
