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The Virginia Freedom Information Act ("FOIA”), Va. Code Ann. §2.2-3700 et seq., is a state law that allows people of the Commonwealth to access public records in the custody of a public body or its officers and employees, as well as free entry to meetings of public bodies where the business of the people is being conducted. The Virginia FOIA was originally enacted in 1968.
The Virginia FOIA was enacted to promote transparency and accountability by ensuring that citizens have the opportunity to review and obtain information about the workings of their representative government.
Public Bodies include counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported entirely or primarily by public funds. agencies in the Commonwealth supported wholly or principally by public funds.” (Va. Code Ann. § 2.2-3701.)
The Virginia Parole Board; Petit juries and grand juries; Family assessment and planning teams (established pursuant to 2.2-5207); Sexual assault response teams (established pursuant to 15.2-1627.4); Multidisciplinary child sexual abuse response teams (established pursuant to 15.2-1627.5); The Virginia State Crime Commission; and Records maintained by clerks of courts.
Additionally, public access to voter registration and election records are dually governed by both the provisions of Title 24.2 (§ 24.2-100 et. seq.) and the Virginia FOIA. The provisions of Title 24.2 control in the event of any conflict. (Va. Code Ann. § 2.2-3703.)
All writings and recordings of letters, words, numbers, or their equivalents, made by handwriting, typing, printing, photostating, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording, or any other form of data compilation, no matter how they are stored or how they look, that were made by, belong to, or are in the possession of a public body or its officers, employees, or agents in the course of public business. (Va. Code Ann. § 2.2-3701)
FOIA does not require a public body to answer questions related to their records; FOIA only requires the production of that record—if it exists. exist (Va. Code Ann. § 2.2-3704).
The Virginia FOIA governs only existing records prepared or accumulated in the transaction of public business (Va. Code Ann. § 2.2-3701). FOIA does not require a public body to create a new record if the record does not already exist (Va. Code Ann. § 2.2-3704).
To request public records under the Virginia FOIA, you must:
“A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records and shall make all reasonable efforts to supply the requested records at the lowest possible cost. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records as set forth in subsection F of § 2.2-3704 of the Code of Virginia.”
Before processing a request, a public body may require a payment up to the advance determination if it expects costs to exceed $200. The payment will go toward providing the requested records. (Va. Code Ann. § 2.2-3704).
Before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing. (Va. Code Ann. § 2.2-3704).
Louisa County does not have a fixed charge for accessing or searching for requested records. Charges for accessing or searching for requested records are based on the hourly rate of the person searching for the records in question. To keep costs down, the county attempts to use the lowest-paid staff members capable of retrieving the requested records in responding to a request. However, in situations where a staff member is required to search through his or her own email and files, the staff member will search for the requested records and the search charge will be based on that employee's hourly rate.
Costs may include but are not limited to: printed copies @ .50 cents per page, hourly staff pay rate, standard USPS postage rate, and $2 for CD disc. (Va. Code Ann. § 2.2-3704).
The request is considered withdrawn if the public body does not get a response from the requester within 30 days of providing the cost estimate. (Va. Code Ann. § 2.2-3704).
Any public body that is subject to the Virginia FOIA and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or respond in writing one of the following:
Additionally, a public body may petition the appropriate court for additional time to respond to a request when the request is for an extraordinary volume of records or requires an extraordinarily lengthy search, and a response by the public body within the normal time required would prevent the public body from meeting its operation responsibilities. (Va. Code Ann. § 2.2-3704).
Public bodies may deny or redact information contained in a public record when it is excluded from mandatory disclosure by the exclusions delineated in §§ 2.2-3705.1 – 2.2-3705.7. Information that may be excluded may be disclosed by the custodian in his or her discretion, except where disclosure is prohibited by law. Public bodies engaged in criminal law-enforcement activities have further limitations on disclosures (as described in §§ 2.2-3706, 2.2-3706.1).
Public bodies may not withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure. A public record may only be withheld from disclosure in its entirety only when the entire content of the public record is excluded from disclosure. Otherwise, only the portions containing information subject to an inclusion may be withheld or redacted, and all portions of the public record that are not excluded must be disclosed. (Va. Code Ann. § 2.2-3704.01).
Any person may proceed to enforce the rights and privileges conferred by the Virginia FOIA by filing a petition for mandamus or injunction, supported by an affidavit showing good cause.
Such petition may be brought in the name of the person notwithstanding that a request for public records was made by the person’s attorney in his representative capacity. Venue for the petition shall be addressed as follows:
1. In a case involving a local public body, to the general district court or circuit court of the county or city from which the public body has been elected or appointed to serve and in which such rights and privileges were so denied;
2. In a case involving a regional public body, to the general district or circuit court of the county or city where the principal business office of such body is located; and
3. In a case involving a board, bureau, commission, authority, district, institution, or agency of the state government, including a public institution of higher education, or a standing or other committee of the General Assembly, to the general district court or the circuit court of the residence of the aggrieved party or of the City of Richmond. (Va. Code Ann. § 2.2-3713.)
The custodian may require the requester to provide his name and legal address. (Va. Code Ann. § 2.2-3704.)
The Chapter 37 of the Code of Virginia governs the Virginia Freedom of Information Act. Click here for more information.
Christian R. Goodwin, ICMA-CM