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Sch. Bd. member makes FOIA request to county

Kilbourn requests correspondence on financial topics for last 16 months

By Phyllis Cook
Staff Reporter

School Board member Payne Kilbourn made a FOIA request to the King George county administration last Thursday for a massive amount of documents.   
His email request read:  
“Please send me all correspondence from/to Mr. Howard, Mr. Grzeika and Mr. Sisson, from/to county officials, from/to county citizens, from/to others, from 1 Jan 2008 to the present.
Please send such information from 1 January 2009 to the present in a timely manner.
Please send me all correspondence from/to Mr. Brian David, Mr. Travis Quesenberry, Ms. Donita Harper for the same dates.  Please send such information from 1 January 2009 to the present as soon as possible.”
He signed the request as a private citizen, not as an elected official, noting his address and phone number as 4504 Caledon Road, King George, VA 22485, 775-0245.
He added that he wanted the massive amount of documents sent electronically to his personal email address.
It’s not known why Kilbourn’s request only focuses on correspondence involving three of the five members of the Board of Supervisors, disregarding correspondence of Cedell Brooks, Jr., and James Mullen.
Kilbourn’s request for such a potentially massive amount of correspondence on all topics would have certainly elicited an initial response from the county to ask him for a $200 deposit just to start with, to begin to cover staff time for research, as allowed under FOIA.
But the next day, Friday, April 24, Kilbourn sent another email to county officials, this time considerably narrowing his initial request.
That second email to county officials said, “Please allow me to clarify my request: it is for correspondence related to official duties only, and also, only for subject matter associated with county taxes, revenues, debt and expenditures.”  He added, “I should have included this clarification in the original request.”
Kilbourn has played a leading role in charging county officials with underfunding the School Board for the upcoming year and for the past couple of years when he has suggested that the Board of Supervisors should raise real estate taxes 25-30 percent to provide additional funding for the School Board.  
We asked Kilbourn if he would provide a comment on his FOIA request to the county and he responded to The Journal, but said, “No comment.”
~ OTHER KILBOURN EMAIL    Prior to emailing his FOIA request to the county, Kilbourn sent another email to his colleagues on the School Board and Superintendent Candace Brown.
That email outlined an attachment, saying, “A couple of you mentioned that it would be helpful to have some graphical depictions of various data that I cited in my paper on the school and county budgets.”
Kilbourn had supplied an op-ed piece published in The Journal last week, in addition to emailing a longer narrative on the topic of school funding in King George.  
In this email, Kilbourn listed the subject matter of several bar charts, one pie chart and another slide with bulleted points.  He told his recipients, “Please feel free to use these in printed form as you desire.”  He added, “I have decided to copyright these slides.”
The information in the slides is public information available from the school division and the Virginia Department of Education.
Kilbourn also copied this reporter on his April 23 email.  
In the body of the email, he stated, “For Ms. Cook: I am sending a copy of this email for your information.  If you desire to forward or distribute the copyrighted attachment, please first seek my permission.”
We responded, saying that we would not use the slide attachment.  
But we also told him, “But, I don’t think I need your permission to forward it along with your email, since under state law, your email and the attachment fit the definition of a public document under FOIA.  In addition, your powerpoint itself may not actually be copyrightable, because it would likely not be deemed sufficiently original, since it constitutes facts already in the public domain.  Also, Just about everything in most major publications is copyrighted. That doesn’t stop people from sharing that content without permission.”
Update
County Attorney Matt Britton responded to Kilbourn’s request in a letter dated April 24:
“At this time the County must deny your request pursuant to Va. Code Section 2.2-3704(B). Your request does not identify the records with reasonable specificity. Your request is vast in time (covering almost eighteen months) and is unlimited in scope. In particular, while some of the documents that are encompassed in your vast request may be subject to Virginia’s Freedom of Information Act (“FOIA”), many are privileged. For instance, you request correspondence among “county officials,” which includes attorneys. In addition, while official correspondence is generally subject to FOIA, you request all documents to “citizens” and “others.” Certain personal correspondence is not subject to FOIA. By way of example, as currently stated, this request asks for letters to spouses and family members.”
Britton goes on to note that “A request within the statutory timeframe to review this extraordinary volume of records requires an extraordinary lengthy search, preventing the County from meeting its operational responsibilities.” 

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