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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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ADVISORY
OPINIONS ISSUED
2024
Opinion
No. |
Issue(s)
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February |
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AO-01-24 |
Discusses
the circumstances under which a pro se petitioner becomes
eligible to obtain reimbursement of attorney fees after
hiring an attorney to represent the petitioner in a FOIA
matter or during the appeal process. A court would have
to determine that a petitioner's rights and privileges
were denied in violation of law, that the petitioner had
substantially prevailed on the merits of his case, and
that there were no special circumstances that would make
the awarding of attorney fees and costs unjust. The court
would have to determine the amount of attorney fees and
costs that were incurred by a petitioner in the litigation
proceedings and award a reimbursement amount
accordingly. |
AO-02-24 |
A
public body shall not be required to create a new record
if the record does not already exist; however, a public
body is required to provide to a requester, unless otherwise
specifically provided by law, a public record in the medium
requested if the public record is identified with reasonable
specificity and if that medium is used by the public body
in the regular course of business. |
AO-03-24 |
Generally,
federal FOIA is limited in that it only applies to federal
agencies and does not extend to state agencies. However,
some federal laws are worded so that they do apply to
other public bodies, including state agencies. FOIA provides
that public records must be disclosed except as otherwise
specifically provided by law. Therefore, if a federal
law provides that disclosure of information is prohibited,
and that law is written so that it applies to state agencies,
then a state agency would be prohibited from releasing
that information and would cite the federal law as the
appropriate legal authority when withholding the records
in response to a FOIA request. |
May |
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AO-04-24 |
The
exemption for a closed meeting relating to discussion
of actual or probable litigation does not require that
legal counsel be present at the discussion. Briefings
pertaining to actual or probable litigation may be performed
by staff members or consultants. Conversely, the exemption
for a closed meeting pertaining to consultation with legal
counsel employed or retained by a public body regarding
specific legal matters does require that legal counsel
be present accordingly. Public notice of a special, emergency,
or continued meeting must be reasonable under the circumstances
and shall be given contemporaneously with the notice being
provided to the members of the public body conducting
the meeting. |
July |
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AO-05-24 |
FOIA
does not require a public body to charge a requester
at all, but if charges are assessed, FOIA provides that a
public body may only do so within the stated limitations. A
public body may assess charges for the production of
requested records which includes the hourly rate of pay for
the staff that researched and responded to the request and
cost of copies. Charges must be limited specifically to the
actual cost to a public body for accessing, duplicating,
supplying, or searching for the requested records. FOIA
requires that a public body make all reasonable efforts to
supply the requested records at the lowest possible cost.
Fees for fringe benefits are a general cost associated with
transacting the general business of the public body. 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 is not allowed under FOIA. There is the
expectation of a "good faith" effort by public officials,
employees, and staff members to conduct a search for
records in responding to FOIA requests. FOIA does not
require any public body's officials, employees, or staff
members to recuse themselves from a records request. It is
the responsibility of these officials, employees, and staff
members trained in the requirements and provisions of
FOIA to understand how to respond to requests in
accordance with the law on behalf of the public bodies they
serve. |
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