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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-11-26
October
21, 2026
Allen
Yip
Via Electronic Mail
The staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing
staff advisory opinion is based solely upon the information
presented in your email message of November 17, the
email chain included therein, the email reply from
this office dated November 19, 2025, and your follow-up
email on the same date.
Dear
Mr. Yip:
You have asked for an advisory opinion addressing
the following question under the Virginia Freedom
of Information Act (FOIA): "What are the obligations
of a public body—and what recourse exists under FOIA—when
FOIA requests repeatedly turn up missing, withheld,
or concealed records that are later discovered through
the requester’s own efforts?"
As
background, you described a series of events concerning
a public records request you made to Prince William
County (the County) for records of certain zoning
and code-enforcement actions; you also included an
email chain demonstrating a series of communications
between you and the County about the matter. Based
on your description and the materials provided, this
office initially responded that when receiving a request
for public records, a public body must make a good
faith search for any responsive records it has, but
that in this instance it appeared there was a dispute
regarding whether the public body had conducted such
a search and that only the courts had the authority
to decide such factual disputes. You then requested
a formal advisory opinion due to broader policy concerns
you identified as follows:
-
If nothing is done, the practical effect is to grant
the records custodian a free pass to disregard core
FOIA obligations. The message sent is that even
when a requester does the extraordinary work of
unearthing records the agency claimed did not exist,
such proven irregularities are treated as inconsequential.
-
Ignoring or declining to address these situations
in a formal opinion could reinforce a precedent
that incomplete or demonstrably inadequate searches
carry no consequences under FOIA, even when subsequent
evidence proves otherwise.
- For any reasonable observer, the combination of
(1) repeated omissions proven by later-discovered
records, (2) refusal to engage or correct the record,
and (3) continued reliance on a long-settled enforcement
action, forms a pattern that undermines public confidence
in both FOIA and local government transparency.
Obligation
of a public body to search for and provide public
records
The
policy statement of FOIA, under subsection B of §
2.2-3700 of the Code of Virginia, provides that "[u]nless
a public body or its officers or employees specifically
elect to exercise an exemption provided by this chapter
or any other statute ... all public records shall
be available for inspection and copying upon request.
All public records ... shall be presumed open, unless
an exemption is properly invoked." In implementing
this policy, subsection B of § 2.2-3704 of the
Code of Virginia provides first that "[a] request
for public records shall identify the requested records
with reasonable specificity." The subsection
then sets forth five responses that a public body
may make, summarized as follows: (i) provide the requested
records, (ii) deny the request entirely, (iii) provide
the records in part and withhold them in part, (iv)
inform the requester that the records could not be
found or do not exist, or (v) invoke up to seven additional
work days to respond. Subsection D of the same section
provides that "no public body shall be required
to create a new record if the record does not already
exist." Additionally, § 2.2-3704.01 of the
Code of Virginia establishes that records may be entirely
withheld "only to the extent that an exclusion
from disclosure under this chapter or other provision
of law applies to the entire content of the public
record." In other situations where a record may
be exempt in part but not entirely, the portions that
are not exempt must be provided although exempt portions
may be withheld. Reading these provisions together
makes clear that FOIA requires that when a public
body receives a request for public records, it must
provide whatever responsive records it has unless
the records are exempt from release, in whole or in
part, in which case the exempt portion(s) may be withheld.
If a public body has an existing record that is responsive
to the request and not exempt, then access to that
record must be provided "by inspection or by
providing copies of the requested records, at the
option of the requester" pursuant to subsection
A of § 2.2-3704 of the Code of Virginia.
Regarding
searches, FOIA does not require a public body to explain
or provide details as to how it conducted its search
for the requested records under any of the required
responses provided by subsection B of § 2.2-3704
of the Code of Virginia. Upon review of your request
for an advisory opinion, there appears to be a dispute
of fact between the public body and you as to whether
a search for records was conducted in good faith.
This office has previously opined that: "FOIA
requires a requester to identify the requested records
with 'reasonable specificity' and a public body to
make a 'good faith' effort to access, search, duplicate,
and supply the records as requested.1 In several prior
opinions, this office has addressed the efforts that
a public body must undertake in the search for records.2
Recognizing that public bodies have different records
and different methods of record-keeping, this guidance
provided that 'while the methods and extent of searches
may vary, any search for records made under FOIA must
be carried out in good faith.'3 Therefore, unless
there is evidence to the contrary, the presumption
in FOIA remains that government officials, officers,
and staff members are performing their duties appropriately."4
Furthermore, this office opined that whether a public
body conducted its search for records in "good
faith" is "a determination of fact that
is outside the authority of this office."5 Following
these prior opinions, only a court would have the
authority to resolve such a dispute regarding whether
a search was conducted in good faith.
In a recent case, the Virginia Court of Appeals further
explained that "the principle that 'the ancient
presumption is that every man will obey the law'…is
not a holding about a presumption that must be overcome
with evidence, but a holding about pleading standards."6
The Court of Appeals went on to state that "without
proper allegations, the Court could not presume by
default that the defendant would not act on good faith"
but also that "[t]he general presumption of good
faith does not shield [a public body] from a well-pleaded
complaint."7 The Court held in that case that
the pleadings alleged sufficient facts to overcome
a demurrer, while also quoting a prior opinion from
this office that "[q]uestions of reasonableness
are matters for the courts to decide" and that
"it is within the powers of a court to order
a public body to perform a search and to delineate
the parameters of [a VFOIA] search."8 As a different
example applying the same principle but reaching a
different result, the Circuit Court of the City of
Norfolk declined to order a search for records on
public employees' personal devices because (i) the
public body's policy was not to allow employees to
use their personal devices for public business; (ii)
the presumption was that the employees would follow
the policy in good faith; and (iii) no information
was presented to the Circuit Court that would counter
the presumption.9 Thus it is clear that while the
law presumes that government employees and officials
will act in good faith, that presumption may be overcome,
both at the pleadings stage (by proper allegations)
and at trial (by sufficient evidence), but it is up
to the courts to rule on such questions.
Statutory
remedy
As
previously observed by this office, only a court may
enforce the provisions of FOIA. Pursuant to §
2.2-3713 of the Code of Virginia, the statutory remedy
for a FOIA violation would be to bring a petition
for mandamus or injunction, supported by an affidavit
showing good cause, in either general district or
circuit court.10 Generally speaking, mandamus is when
a court orders a public official to do something required
by law (for example, to produce non-exempt records
in accordance with FOIA) and injunction is when a
court issues an order not to do something (for example,
not to violate FOIA in the future). The possible remedies
a court may order may be as varied as the possible
violations; only a court may determine what remedy
is appropriate under a particular set of facts. Additionally,
there are heightened civil penalties that a court
may order for certain violations pursuant to §
2.2-3714 of the Code of Virginia, as well as mitigating
factors to be considered as stated in § 2.2-3715
of the Code of Virginia.
The
Supreme Court has previously issued an opinion addressing
the differences between common-law mandamus actions
and FOIA's statutory mandamus provisions that may
be helpful in understanding this aspect of the remedies
available under FOIA:
Circuit
courts have the jurisdiction to issue a writ of
mandamus in any case where it is "necessary
to prevent the failure of justice and in which mandamus
may issue according to the principles of common
law." The common law issuance of a writ of
mandamus is "an extraordinary remedy employed
to compel a public official to perform a purely
ministerial duty imposed upon [the official] by
law."
We
have consistently held that "the writ of mandamus
. . . only issues when there is a clear and specific
legal right to be enforced, or a duty which ought
to be and can be performed, and where there is no
other specific and adequate legal remedy."
We have further
noted that to be "adequate," the legal
remedy "must be equally as convenient, beneficial,
and effective as the proceeding by mandamus."
…
The provisions of Code § 2.2-3713 significantly
distinguish the right to mandamus it provides from
the common law right to mandamus. By granting concurrent
jurisdiction to the circuit and general district
courts, expediting the proceedings, providing for
an award of costs and attorneys' fees, and shifting
the burden of proof to the public body, the General
Assembly has evinced an intent to provide mandamus
relief under Code § 2.2-3713(A) different from
that of common law mandamus. These distinctions
are entirely consistent with the express purpose
of the FOIA and manifestly facilitate access to
appropriate governmental records.11
The Supreme Court concluded "that the lack of
any reference in this statute to the common law requirement
that the petition prove a lack of adequate remedy
at law evinces the intent of the General Assembly
to eliminate that common law prerequisite to the issuance
of a writ of mandamus."12
More
recently, the Supreme Court of Virginia has expounded
on FOIA remedies and more specifically, the standards
for granting an injunction under FOIA:
In
addition to setting forth the obligations of public
officials and bodies and the rights of the public,
[FOIA] makes various remedies available when those
duties have been breached and those rights have
been violated. Pertinent to the trial court's granting
of the injunction here, Code § 2.2-3713(A)
specifically provides that, when a person has been
"denied the rights and privileges conferred
by" [FOIA], he or she may seek "to enforce
such rights and privileges by filing a petition
for mandamus or injunction[.]" Code §
2.2-3713(D) then provides that "[a] single
instance of denial of the rights and privileges
conferred by this chapter shall be sufficient to
invoke the remedies granted herein."
As an equitable remedy, "[a]n injunction is
a writ issued in a suit in equity whereby the plaintiff
seeks to prohibit the defendant from doing an act
. . . or to mandate the defendant to perform a specified
act." We long have recognized that, in that
context, "an injunction is an extraordinary
remedy[.]" An equitable injunction has well-known
requirements, including that the requesting "party
. . . show irreparable harm and the lack of an adequate
remedy at law."
Such traditional requirements, however, do not apply
to statutory injunctions. Rather, "[w]hen a
statute empowers a court to grant injunctive relief,
the party seeking an injunction is not required
to establish the traditional prerequisites, i.e.,
irreparable harm and lack of an adequate remedy
at law, before the injunction can issue." Instead,
the focus in a proceeding involving a statutory
injunction is whether the authorizing "statute
or regulation has been violated."
Although
the focus is on whether the statute has been violated
and [FOIA] permits a trial court to enter an injunction
based upon a single violation of [FOIA], Code §
2.2-3713(D), we have never held that the mere finding
of a violation entitles a petitioner to an injunction.
Rather, once a violation of [FOIA] has been established,
whether an injunction is warranted is a question
committed to the trial court's discretion. In exercising
that discretion, a trial court should consider the
potential for a future violation of [FOIA]. Although
[FOIA] "permits a trial court to infer from
a single violation that future violations will follow[,]"
the entry of an injunction remains "extraordinary
relief [and] is still predicated on the probability
that future violations will occur." An injunction
under [FOIA] "is not to be casually or perfunctorily
ordered[,]" and must be tied to the actual
violation of [FOIA] that gives rise to injunctive
relief.13
Thus
FOIA provides statutory remedies by allowing those
who believe that their FOIA rights have been violated
to file a petition for mandamus or injunction, by
providing specific statutory provisions that differentiate
such petitions from similar actions at common law,
and allowing courts sufficient leeway to craft remedies
appropriate to any given situation. With that in mind,
the policy considerations you have presented (where
a public body could potentially flaunt FOIA's requirements
with corresponding negative consequences to the public)
are well-taken, but the appropriate remedy under FOIA
would then be to file a petition in court so that
the court could make any necessary rulings on disputed
facts and issue an appropriate remedy for whatever
violation(s) it may find, if any.
Sincerely,
Alan
Gernhardt, Esq.
Executive Director
Joseph
Underwood
Senior Attorney
1Freedom
of Information Advisory Opinion 07 (2024).
2See Freedom of Information Advisory Opinions
05 (2024), 03 (2023), 04 (2018), and 04 (2010).
3Freedom of Information Advisory Opinion
04 (2010).
4Freedom of Information Advisory Opinion
05 (2024).
5Freedom of Information Advisory Opinion
01 (2016), n. 2.
6Commonwealth v. Sawyer, 84 Va.
App. 547, 562, 914 S.E.2d 623, 630 (2025)
7Id.
8Id., 84 Va. App. at 563, 914
S.E.2d at 631 (quoting Freedom of Information Advisory
Opinion 04 (2010)).
9Transportation Dist. Comm'n of Hampton
Rds. v. Raja, 114 Va. Cir. 130 (Circuit Court
of the City of Norfolk, 2024).
10Freedom of Information Advisory Opinion
06 (2014)(footnotes omitted).
11Cartwright v. Commonwealth Transp.
Comm'r, 270 Va. 58, 63-66, 613 S.E.2d 449, 452-453
(Va. 2005)(internal citations omitted).
12Id.
13Suffolk City Sch. Bd. v. Wahlstrom,
302 Va. 188, 210-211, 886 S.E.2d 244, 256-257 (Va.
2023).
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