In the trove of advisory opinions from the VA State FOIA Advisory Council, this as it turns out in reply to a request by Dan Vergano for Email between Wegman and Said and Joe Barton's staff (read John Mashey for the details).
Dear Mr. Vergano:Now if you believe that Said and Wegman did not use the University library in compiling their report, well, Eli has a bridge for you and what they looked at could be interesting, but let us not go there, let us go here, which bears directly on the ATI vs UVa case, first the bmmmph
You have asked two questions in regard to the responses you received to a records request you made to George Mason University (the University) under the Virginia Freedom of Information Act (FOIA). One question was in regard to whether the requested records are in fact public records the University must disclose under FOIA, and the other concerned the extent of the search performed by the University in responding to your request. As background, you requested "copies of information and documentary materials, including electronic mail and other communication" related to a climate change report authored by two University professors that was commissioned by the United States Congress in 2005 and released in 2006. You restricted the search by date to cover September 1, 2005 to the present. You specifically requested "background material for the report [that] was provided by a [named] political staffer." The University responded that it did not have the records you sought. The University did provide other documents that indicated that both professors did not use any University facilities, equipment, or resources in performing the work at issue, but instead worked on a pro bono basis at personal expense without state or federal funding. One professor also mentioned that his correspondence regarding the report was not handled through the University electronic mail system, and that the earliest electronic mail message the professor retained on the University system was dated July 20, 2009 (years after the report in question was issued). You were also provided a copy of an electronic mail message dated August 12, 2010 that was received by one of the professors on his University account, apparently because the named political staffer was also included in the distribution of that message.
Turning to your questions, you asked whether the records you requested are related to the transaction of public business and therefore subject to release under FOIA, given that the professors were identified in the report as University professors, the report was commissioned by a public body, and that the issue in question is of high public interest. As previously stated by this office, the general policy of FOIA expressed in § 2.2-3700 is to ensure ready access to public records in the custody of a public body or its officers and employees....The 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. The definition of public record set forth in § 2.2-3701 includes all writings and recordings ... however stored, and 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. There is no doubt that the University, as a public institution of higher education established by the General Assembly, is a public body, and by extension, there is no question that a University professor is a public employee. Therefore any records prepared or owned by, or in the possession of a University professor are public records under FOIA if they are in the transaction of public business. However, as stated in the first opinion published by this office, the phrase in the transaction of public business is not defined in FOIA.Then a restatement of the conclusions of the previous post at RR
In examining a similar issue, that opinion stated that electronic mail messages between members of a public body that are not related to the transaction of public business are not public records under FOIA, and therefore are not subject to its mandatory disclosure requirements. The fact that electronic mail messages go through a government agency’s electronic mail database does not, by itself, make them public records. It is also the subject of those electronic mail messages that determines their status as public records.and now the main course
The circumstances you have presented are somewhat different from those in past opinions in that the professors assert they did not use the University's electronic mail system or other University resources or facilities in performing the work at issue. Accepting that assertion at face value, it still is not controlling in deciding whether the records in question are in fact public records subject to FOIA. Even if the professors only used personal electronic mail accounts and privately owned equipment in generating the records, the records could still be public records subject to FOIA because the professors are public employees, the records were prepared and possessed by them, and may have been in the transaction of public business. The final determination again depends on the subject matter or content of the records in question: were they in fact prepared in the transaction of public business? In this case, based on the facts you presented, the report was commissioned by and presented to Congress, not by the University. The professors and the University have asserted in the response to your request that the work performed was not part of the professors' duties at the University. Therefore the records are not in the transaction of the University's or the professors' public business.
You have noted that the work is of great public interest and was commissioned by a public body, which, based on the background provided, appears to be Congress. Given that background, it would appear that the work in question may have been performed in the transaction of public business, but again, it appears to be the transaction of the public business of Congress, not of the University. This situation highlights the fact that under Virginia FOIA, a public body is responsible for providing the records it uses in the transaction of its own public business. As the requested records do not appear to concern or relate to the transaction of the public business of the University, they would not be public records of the University.which clearly applies to any of Prof. Mann's emails having to do with the IPCC or with other committees external to UVa. The advisory letter concludes with some discussion of a further point, but Eli shall only set the table there
You also asked whether the University is required under FOIA to perform a search of its own electronic mail servers, as opposed to relying on the professors to provide any responsive records, given that it appears that the University asked the professors to provide responsive records but did not perform an independent search. 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. However, in addressing the costs of a search, this office noted in a prior opinion that the law does not require that a public body make a detailed explanation of how the search was conducted.While these letters may, indeed according to Brian, have been known to the lawyers on both sides, they certainly shed a different light on the opinions expressed by many.