PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, JJ., and 

Stephenson and Russell, S.JJ. 

JOHN H. FENTER 

 OPINION BY 

v. Record No. 062563 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR. 

 September 14, 2007 

NORFOLK AIRPORT AUTHORITY 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John C. Morrison, Judge 

 The principal issue in this appeal is whether the Norfolk 

Airport Authority (the Authority) failed to properly respond to 

a party's requests for information under The Virginia Freedom of 

Information Act, Code § 2.2-3700 et seq. (the Act or FOIA). We 

also determine the party's entitlement to costs and attorney's 

fees. 

I 

 On July 25, 2006, John H. Fenter filed a complaint and 

petition for injunctive relief against the Authority. He sought 

to require the Authority to respond to his requests for 

information in accordance with the Act. 

 On August 21, 2006, the Authority filed its answer, stating 

that Fenter's requests for information constituted legal 

questions to which the Act does not apply. The Authority 

further stated that, pursuant to 49 C.F.R. § 1520.1 et seq. 

(2005), disclosure of the requested information was not 

permitted because the requests involved sensitive security 

information (SSI). 
2

 Following a hearing, the trial court denied Fenter's 

petition by final order entered September 12, 2006. The trial 

court found that "the response of the Authority to [Fenter's] 

requests for information complied with the requirements of the 

[Act] and with the requirements of federal law." We awarded 

Fenter this appeal. 

II 

 On March 8, 2006, prior to making the two requests for 

information at issue in this appeal, Fenter made the following 

request of the Authority: 

 There are signs on the access roads to the 

Norfolk International Airport stating that "All 

vehicles entering airport are subject to search." 

Please provide me a copy of any Federal or Virginia 

statute or regulation authorizing the Airport 

Authority to search any vehicle on airport property, 

outside the Federal "sterile area", without prior 

probable cause or a valid search warrant issued by a 

Federal or Virginia court. 

On March 10, 2006, Fenter received from Kenneth R. Scott, the 

Authority's executive director, a response stating that the 

request had been forwarded to the Authority's legal counsel, 

Anita O. Poston, for appropriate action. This response is not 

involved in this appeal. 

 By letter dated March 21, 2006, Fenter made a second 

request of the Authority, seeking "[t]he history or 

circumstances relating to the erection of the Norfolk Airport 

Authority signs on the access roads to the Norfolk International 
3

Airport stating that '[a]ll vehicles entering airport are 

subject to search.' " On March 27, 2006, Poston sent Fenter a 

letter stating the following: 

This will acknowledge that the Norfolk Airport 

Authority has received your letter of March 21, 2006. 

Mr. Scott has asked me to respond. We have contacted 

the Transportation Security Administration and will 

respond to your letter upon receipt of advice from 

that agency. 

 On May 6, 2006, Fenter made a third request of the 

Authority, seeking "any records of correspondence dated on or 

after 1 March 2006, including emails, between the Norfolk 

Airport Authority and the Transportation Security Administration 

regarding the above-mentioned signs and my outstanding FOIA 

request about said signs." On May 8, 2006, Scott responded on 

behalf of the Authority as follows: 

As previously advised this matter was referred to 

the Authority's Legal Counsel (Anita O. Poston, 

Esquire) and she is the only person authorized to 

respond accordingly. I have copied Ms. Poston on this 

reply for her consideration. Please refer all future 

inquiries to her attention. 

 Prior to filing his complaint and petition on July 25, 

2006, Fenter had received no further response from the Authority 

or its counsel. Also prior to Fenter's filing his complaint, 

the Virginia Freedom of Information Act Advisory Council (the 

Advisory Council) issued an advisory opinion stating that the 

Authority had violated the Act by failing to timely make one of 

the four statutorily required responses to Fenter's March 21, 
4

2006 second request for information.1 The opinion provided, in 

pertinent part, the following: 

That request asks for any records regarding the 

history or circumstances relating to the posting of 

certain signs by the Authority. That request 

therefore encompasses records such as meeting minutes, 

memoranda, work orders, receipts, or other records 

concerning the posting of the signs, all of which fall 

within the definition of public records (although 

exemptions may still apply). As such, the Authority 

should have provided you with one of the four 

responses permitted under § 2.2-3704 within five 

working days of the receipt of your request . . . . 

[T]he response itself was not one of the four 

responses permitted by FOIA. . . . The Authority did 

not provide the requested records, did not deny your 

request pursuant to an exemption, and did not invoke 

the additional seven working days to respond allowed 

under FOIA. . . . Thus, in regard to this request for 

records regarding the history and circumstances of the 

signs, it appears that the Authority has failed to 

comply with the procedure for responding to requests 

as mandated by FOIA. 

(Emphasis added.) 

After suit was filed, the Authority provided copies of 

pertinent documents, including a letter from the Transportation 

Security Administration (TSA) addressing the scope of SSI and 

numerous pages of historical documents. These documents 

presented no security implications. 

III 

 1

 The Advisory Council is an agency of the Commonwealth of 

Virginia created by the legislature, Code § 30-178. 
5

 Fenter contends that the Authority failed to provide the 

responses to his second and third requests for information 

required by the Act. He also contends that he is entitled to 

recover his reasonable costs and attorney's fees. 

 The Act provides, in Code § 2.2-3704(A), that, "[e]xcept as 

otherwise specifically provided by law, all public records shall 

be open to inspection and copying" and that "[a]ccess to such 

records shall not be denied." The Act further provides, in Code 

§ 2.2-3700(B), that its provisions 

shall be liberally construed to promote an increased 

awareness by all persons of governmental activities 

and afford every opportunity to citizens to witness 

the operations of government. Any exemption from 

public access to records or meetings shall be narrowly 

construed and no record shall be withheld or meeting 

closed to the public unless specifically made exempt 

pursuant to [the Act] or other specific provision of 

law. 

(Emphasis added.) Pursuant to Code § 2.2-3704(E), "[f]ailure to 

respond to a request for records shall be deemed a denial of the 

request and shall constitute a violation of [the Act]." With 

regard to enforcement of the Act, Code § 2.2-3713(E) provides 

that "the public body shall bear the burden of proof to 

establish an exemption by a preponderance of the evidence. Any 

failure by a public body to follow the procedures established by 

[the Act] shall be presumed to be a violation of [the Act]." 

(Emphasis added.) 
6

A public body's response to a request for public records is 

governed by Code § 2.2-3704(B), which, in 2006, provided, in 

pertinent part, as follows:2

Any public body that is subject to [the Act] and that 

is the custodian of the requested records shall 

promptly, but in all cases within five working days of 

receiving a request, make one of the following 

responses: 

1. The requested records will be provided to the 

requester. 

2. The requested records will be entirely withheld 

because their release is prohibited by law or the 

custodian has exercised his discretion to withhold the 

records in accordance with [the Act]. Such response 

shall (i) be in writing, (ii) identify with reasonable 

particularity the volume and subject matter of 

withheld records, and (iii) cite, as to each category 

of withheld records, the specific Code section that 

authorizes the withholding of the records. 

3. The requested records will be provided in part and 

withheld in part because the release of part of the 

records is prohibited by law or the custodian has 

exercised his discretion to withhold a portion of the 

records in accordance with [the Act]. Such response 

shall (i) be in writing, (ii) identify with reasonable 

particularity the subject matter of withheld portions, 

and (iii) cite, as to each category of withheld 

records, the specific Code section that authorizes the 

withholding of the records. When a portion of a 

requested record is withheld, the public body may 

delete or excise only that portion of the record to 

which an exemption applies and shall release the 

remainder of the record. 

4. It is not practically possible to provide the 

requested records or to determine whether they are 

available within the five-work-day period. Such 

response shall be in writing and specify the 

 2

 Subsection B of Code § 2.2-3704 was amended in 2007. The 

amendments did not change the substance of the subsection. See

2007 Acts ch. 439. 
7

conditions that make a response impossible. If the 

response is made within five working days, the public 

body shall have an additional seven work days in which 

to provide one of the three preceding responses. 

IV 

A 

 It is clear from the record that the Authority's only 

response to Fenter's second request for information made in his 

letter of March 21, 2006, was its statement that it had 

"contacted the Transportation Security Administration and will 

respond . . . upon receipt of advice from that agency." This 

statement did not meet the requirements of any of the responses 

specified by Code § 2.2-3704(B). It is also clear from the 

record that the Authority did not respond to Fenter's third 

request in one of the ways specified by Code § 2.2-3704(B). The 

Authority advised only that the request had been referred to its 

legal counsel. 

 Additionally, the record reveals that, after Fenter filed 

suit, the Authority produced non-sensitive, non-exempt materials 

relating to the history of and circumstances surrounding the 

erection of the warning signs, including work orders and 

documents regarding signage language. This was information that 

had been sought by Fenter in his second request. The Authority 

also produced non-sensitive, non-exempt material relating to 
8

Fenter's third request when it produced a letter from the TSA 

dated April 11, 2006.3

 The Authority contends that Federal airport-security laws 

and regulations preempt the provisions of the Act requiring 

specific, timely responses and mandate protection of SSI. 

Fenter responds to this contention as follows: 

 Certainly, airport security is an extremely 

serious matter since the events of 9/11. U.S. 

Government airport security regulations are entitled 

to supremacy to the extent they apply and conflict 

with Virginia law. However, the Airport Authority did 

not at hearing, and cannot, prove that those 

regulations which apply to sensitive security 

information ("SSI") obviated the need to respond in 

accordance with Va. Code, Sec. 2.2-3704(B) and to 

produce documents which are not SSI. 

We agree with Fenter. We conclude, therefore, that the 

Authority's failure to properly respond to Fenter's second and 

 3

 The Authority has filed an assignment of cross-error in 

which it asserts that these documents were inadmissible 

primarily because they "were provided to an opposing party for 

purposes of settlement only." Fenter's counsel state that they 

had not been told that the documents were sent for purposes of 

settlement only. 

 The settlement-discussion privilege provides that, for 

reasons of public policy, "an offer to compromise or settle a 

disputed claim will not be received as an admission of the party 

making the offer . . . , but if during the negotiation there is 

an admission of an independent fact pertinent to the question in 

issue, such evidence is admissible." Hendrickson v. Meredith, 

161 Va. 193, 204-05, 170 S.E. 602, 606 (1933). 

 In the present case, the documents were not an offer to 

compromise or settle the litigation; instead, they constituted 

independent facts with respect to the issues litigated and were 

admissible. Consequently, we affirm the trial court's ruling 

with respect to the issue raised by the Authority's assignment 

of cross-error. 
9

third requests for information constituted a violation of the 

Act and that the trial court erred in finding otherwise. 

B 

 We now consider whether Fenter is entitled to an award of 

reasonable costs and attorney's fees. Code § 2.2-3713(D) 

provides, in pertinent part, that "the petitioner shall be 

entitled to recover reasonable costs and attorneys' fees from 

the public body if the petitioner substantially prevails on the 

merits of the case, unless special circumstances would make an 

award unjust." 

 The Authority contends that Fenter is not entitled to 

reasonable costs and attorney's fees for several reasons. 

First, the Authority asserts that Fenter did not substantially 

prevail on the merits. Second, it claims that Fenter did not 

produce a record at trial and that, without such a record, this 

Court cannot decide the matter. Finally, the Authority states 

that Fenter did not request that the case be remanded to the 

trial court to fix costs and attorney's fees. 

 We reject the Authority's contentions. With respect to the 

first contention, our reversal of the trial court's judgment 

assures that Fenter substantially prevails on the merits. See

White Dog Publishing v. Culpeper Bd. of Sup., 272 Va. 377, 387-

88, 634 S.E.2d 334, 340 (2006). Regarding the second argument, 

Fenter did not present evidence at trial concerning costs and 
10

attorney's fees because the trial court expressly ruled that it 

was not necessary given that Fenter had not substantially 

prevailed on the merits at trial. Regarding the Authority's 

third argument, we refer to Fenter's opening brief in which he 

asked this Court to "provide [him] reasonable costs and 

attorneys' fees either directly or by remand to the Circuit 

Court." (Emphasis added.) We conclude, therefore, that Fenter 

is entitled to recover his reasonable costs and attorney's fees. 

V 

 For the reasons stated herein, we will reverse the trial 

court's judgment and remand the case to the trial court for a 

determination of reasonable costs and attorney's fees, both at 

trial and on appeal. 

Reversed and remanded.