Summary of Virginia’s Freedom of Information Act (“FOIA”)
The Virginia Freedom of Information Act (Va. Code § 2.2-3700 et seq.) is a powerful tool for both citizens of the Commonwealth and for their attorneys, especially in lawsuits involving the state. (The Federal Government and other states have their own versions of FOIA). This Act is designed to facilitate government transparency. As the opening provision of the Virginia FOIA states, “The affairs of government are not to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiaries of any action taken at any level of government.”
Virginia FOIA requires all records held by public bodies to be made available for inspection and copying upon request, unless the records are specifically exempt from release under the Act. Normally citizens exercise this right by submitting a written request for specific records to the public body. The public body must respond within five business days. Its response must either (1) provide the records; (2) release unexempt records or information (if any) while redacting or withholding some or all of the exempt records or information, providing also a statement concerning the volume and subject matter of the exempt records and the statutory provision making the records exempt; (3) if the requesting party consents to it, summarize the information contained in responsive records; (4) state that responsive records do not exist or cannot be found; or (5) exercise a conditional right to an additional seven business days to respond.
Virginia FOIA provides over a hundred different exemptions. These permit or require the public body to withhold many different types of documents from release including:
- Education and health records;
- All records related to criminal investigations, except a brief incident report and the identity of any person (except juveniles) arrested and charged and the status of the arrest and charge;
- The identity of people filing complaints with the public bodies, with some exceptions;
- Most forms of personal information, including specifically tax returns;
- Proprietary records and trade secrets; and
- Various documents affecting public safety or the safety of public officers.
These exemptions, however, do not preclude the public for asking for the documents, and the public body will sometimes release these records even though they are not required to do so.
If the public body violates it obligations under the Act, the individual requesting the documents may petition the court to get the documents. If the public body cannot prove that the documents are exempt, the court is to order the documents be produced. Normally the court also has to order the public body to pay the petitioner’s reasonable attorney fees and costs for filing the petition.
Anyone interested in examining public documents should follow these tips in drafting and submitting a FOIA letter:
- All public bodies are suppose to make available on their website information about filing a FOIA request with that public body, but many do not. Still, check the website to find out if there is a specific place to send the letter.
- Address the request to the public body, or to the custodian of records for the public body, or to the individual in charge of the public body, and send it via fax or email to expedite its delivery.
- Specifically mention the Virginia Freedom of Information Act (Va. Code § 2.2-3700 et seq.) in the letter. While this is not required, it makes it clear that this is not a request the public body can ignore.
- Specifically request documents. While the act requires certain types of “information” to be released, it generally requires the release of documents, not information per se.
- Be careful and crafty in defining the documents sought. Remember to use time limits or time frames (e.g., all policies in place since January 1, 2012) and other qualifying language (e.g., all policies concerning a traffic stop) so that the request is not overly broad. Unless seeking specific types of document (e.g., contracts or specific reports), describe instead the sort of information sought and ask for all documents containing that information.
- If Virginia FOIA requires the public body to release the records (see, e.g., Va. Code § 2.2-3706(b), (c), and (g)), quote the statutory language in the letter.
- State how the public body should deliver the document (fax, email, mail) and provide contact information, including a phone number. This does not guarantee the documents will arrive that way, but it may help.
- Be aware that the public body can charge a fee for locating and preparing the documents, though if it will exceed $200.00, they are suppose to contact the requester first.
If you do not receive a timely response, or if the public body does not cite a valid exemption, consider talking to an attorney about filing the petition with the court. Most judges are unfamiliar with Virginia FOIA and most public bodies have not been sued under Virginia FOIA, so it is helpful to have an attorney present in court to explain the law. Also, if you win, the court normally has to award reasonable attorney fees, thereby minimizing the expense of the litigation.
The materials are prepared for information purposes only. The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Andrew T. Bodoh, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Va 23219
804-783-2000 x 108