Access to Public Records

Under the

Virginia Freedom of Information Act

                                                                                   

I. Statutory Guidance

The Virginia Freedom of Information Act (FOIA) is largely a procedural act, and §§ 2.2-3704 and 2.2-3704.01 of the Code of Virginia guide users on how to make or respond to a FOIA request for public records. This outline explains these procedural requirements and provides practical advice for adhering to FOIA when making or responding to a request. Further detailed guidance regarding charges for the production of public records is provided in a separate document entitled "FOIA Charges Guide," which can be found on the FOIA Council website.

What is a public record under FOIA?

A "public record" is any writing or recording, in any format, prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business. For example, public records may be in the form of handwritten notes, typewritten documents, electronic files (including email and social media posts), audio or video recordings, photographs, or any other written or recorded media.

Are draft or preliminary versions also considered public records?

Yes. The definition of "public record" does not distinguish between draft or preliminary versions and final versions, so both are considered public records under FOIA.[1]

II. Making a Request for Records

Who may request records under FOIA?

·    Citizens of the Commonwealth;

·    Representatives of newspapers and magazines with circulation in the Commonwealth; and

·    Representatives of radio and television stations broadcasting in or into the Commonwealth.

Must a request mention "FOIA" specifically?

No. The request does not need to mention FOIA in order to invoke its provisions or to impose the time limits for response by a public body.

Must a request be made in writing?

No. A written request is not required. However, as a practical matter, it is suggested that the request be made in writing, whether in a paper or electronic format. A written request provides recourse for both parties.[2]

May a public body require a requester to fill out a request form?

No. A public body may develop a request form that it asks requesters to fill out, but a public body may not insist that its form be used before it begins work on a FOIA request.

NOTE:  It is suggested that if the requester refuses to fill in the form or to put the request in writing, the public body should fill out its own form—remember, writing is recourse.[3]

May a public body require a requester to provide his name and legal address?

Yes. A public body may require a requester to provide his name and legal address before processing a FOIA request.

NOTE:  This is a tool a public body may use, but FOIA does not mandate that public bodies get identification first.[4]

For more practical tips on requesting public records, see the separate guide "Best Practices for Making Requests for Public Records" available on the FOIA Council website.

III. Responding to a Request for Records

How long does a public body have to respond to a request?

A public body must respond within five working days of receipt of the request.

NOTE:  Count the day after receipt as Day 1.[5]

REMEMBER:  Failure to respond to a request for records shall be deemed a denial of the request and constitutes a violation of FOIA.[6]

What are the permissible responses to a request?

After receiving a request, a public body must make one of the five responses allowed by FOIA:

1.     The custodian provides the requested records to the requester;

2.     The requested records are entirely withheld because their release is prohibited by law or the custodian has exercised his discretion to withhold the records in accordance with FOIA;

3.     The requested records are provided in part and are 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 FOIA;

4.     Notice is provided that the requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body; or

5.     It is not practically possible to provide the requested records OR to determine whether they are available within the five-work-day period prescribed by FOIA, and the public body needs an additional seven work days, or in the case of a request for criminal investigative files pursuant to § 2.2-3706.1, 60 work days, in which to provide one of the four preceding responses.[7]

When does a response need to be in writing?

If any part of the answer is "NO" (i.e., response 2 or 3 above), the response must:

1.     Be in writing;

2.     Identify with reasonable particularity the subject matter of withheld records; and

3.     Cite, as to each category of withheld records, the specific section of the Code of Virginia that authorizes the records to be withheld.

If the records are being entirely withheld (i.e., response 2) then the response must also identify with reasonable particularity the volume of the withheld records.

If the answer is "we cannot find it" or "it does not exist" (i.e., response 4 above):

1.     The response must be in writing; and

2.     If the public body knows that another public body has the records, the public body that received the request must provide contact information for the other public body.

If the answer is "we need more time" and the public body would like seven additional working days to respond (i.e., response 5 above), the response must:

1.     Be in writing; and

2.     Specify the conditions that make production of the records within the five-work-day period impossible.

How does a public body respond if a record contains exempt and nonexempt information?

Generally, if a record contains exempt and nonexempt information, the public body must release the record and delete or excise only the exempt portion of the record.

Must a public body create a record in response to a FOIA request?

Generally, a public body is not required to create a new record if the requested record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body.[8]

How much may a public body charge for producing records?

A public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. Public bodies are required to make all reasonable efforts to supply the requested records at the lowest possible cost. A public body may not charge extraneous or surplus fees unrelated to the production of the records.

NOTE:  A public body cannot factor in expenses such as overhead or the cost of benefits paid to employees. Charges for copies must not exceed the actual cost of duplication.

NOTE:  As of July 1, 2022, public bodies may not charge for "scholastic records requested pursuant to subdivision A 1 of § 2.2-3705.4 that must be made available for inspection pursuant to the federal Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and such requests for scholastic records by a parent or legal guardian of a minor student or by a student who is 18 years of age or older."

Are cost estimates required?

If a requester asks that the public body estimate the cost of supplying the requested records in advance, then the public body must provide a cost estimate. The five-working-day period to respond is tolled for the amount of time that elapses between notice of the cost estimate and the response of the requester. If the public body receives no response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn. As mentioned previously, further detailed guidance regarding charges for the production of records is provided in the "FOIA Charges Guide."[9]

Can a public body require advance payment?

When a public body determines in advance that the charges for supplying the requested records are likely to exceed $200, it may require the requester to pay a deposit before proceeding with the request. This deposit may not exceed the amount of the advance determination, and the public body must credit it toward the final cost of supplying the records. If a public body asks for the advance deposit, the five-working-day period to respond to the request is tolled until the deposit is paid.[10]

What can a public body do if a requester does not pay for records provided under FOIA?

Before responding to a new 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.

Do these same requirements apply to a request for electronic records?

Yes. Like all other records, regardless of format, a public body may only charge a reasonable, not to exceed actual, cost for producing public records maintained in an electronic data processing system or computer database. And like other records, when electronic records or databases contain both exempt and nonexempt records, the public body must supply the nonexempt information and may excise or delete the exempt information. The excision of exempt fields from a database or the conversion of data from one available format to another is not considered the creation of a new record under FOIA.

A public body must provide electronic records in any medium identified by the requester if that medium is used by the public body in the regular course of business. If the public body has the capability, this includes the option of posting the records on a website or delivering the records to an email address. A public body is not required to produce records in a format not regularly used by the public body. However, a public body must make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and the public body, including the payment of reasonable costs.[11]

For more information on charges for public records, see the separate "FOIA Charges Guide" available on the FOIA Council website.


APPENDIX

Records Exemptions of General Applicability

FOIA contains over 150 exemptions for records. Although many of these exemptions apply to specific agencies and to very specific types of records, there are several records exemptions of general applicability that may be used by virtually all public bodies. The most commonly used records exemptions of general applicability are listed below with the corresponding statutory citation for reference.

§ 2.2-3705.1 (1): Personnel information. Provides an exemption for:

Personnel information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. Any person who is the subject of such information and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such information shall be disclosed. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107.

No provision of this chapter or any provision of Chapter 38 (§ 2.2-3800 et seq.) shall be construed as denying public access to (i) contracts between a public body and its officers or employees, other than contracts settling public employee employment disputes held confidential as personnel records under § 2.2-3705.1; (ii) records of the name, position, job classification, official salary, or rate of pay of, and records of the allowances or reimbursements for expenses paid to, any officer, official, or employee of a public body; or (iii) the compensation or benefits paid by any corporation organized by the Virginia Retirement System or its officers or employees. The provisions of this subdivision, however, shall not require public access to records of the official salaries or rates of pay of public employees whose annual rate of pay is $10,000 or less.

NOTE: In the case Hawkins v. Town of South Hill (2022), the Supreme Court of Virginia held that personnel information "means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual's employment relationship with the entity, and are private, but for the individual's employment with the entity" and that such "data, facts, and statements are private if their disclosure would constitute an 'unwarranted invasion of personal privacy' to a reasonable person under the circumstances."

§ 2.2-3705.1 (2): Attorney-client privilege. Provides an exemption for:

Written advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other information protected by the attorney-client privilege.

§ 2.2-3705.1 (3): Attorney work product. Provides an exemption for:

Legal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711.

§ 2.2-3705.1 (4): Tests and examinations. Provides an exemption for:

Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student's performance, (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by a public body.

As used in this subdivision, "test or examination" shall include (a) any scoring key for any such test or examination and (b) any other document that would jeopardize the security of the test or examination. Nothing contained in this subdivision shall prohibit the release of test scores or results as provided by law, or limit access to individual records as provided by law. However, the subject of such employment tests shall be entitled to review and inspect all records relative to his performance on such employment tests.

When, in the reasonable opinion of such public body, any such test or examination no longer has any potential for future use, and the security of future tests or examinations will not be jeopardized, the test or examination shall be made available to the public. However, minimum competency tests administered to public school children shall be made available to the public contemporaneously with statewide release of the scores of those taking such tests, but in no event shall such tests be made available to the public later than six months after the administration of such tests.

§ 2.2-3705.1 (5): Closed meetings. Provides an exemption for:

Records recorded in or compiled exclusively for use in closed meetings lawfully held pursuant to § 2.2-3711. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been reviewed or discussed in a closed meeting.

§ 2.2-3705.1 (6): Vendor proprietary information. Provides an exemption for:

Vendor proprietary information software that may be in the public records of a public body. For the purpose of this subdivision, "vendor proprietary information software" means computer programs acquired from a vendor for purposes of processing data for agencies or political subdivisions of the Commonwealth.

§ 2.2-3705.1 (7): Computer software. Provides an exemption for:

Computer software developed by or for a state agency, state-supported institution of higher education or political subdivision of the Commonwealth.

§ 2.2-3705.1 (8): Cost estimates of real property. Provides an exemption for:

Appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease.

§ 2.2-3705.1 (10): Certain personal contact information. Provides an exemption for:

Personal contact information furnished to a public body or any of its members for the purpose of receiving electronic communications from the public body or any of its members, unless the recipient of such electronic communications indicates his approval for the public body to disclose such information. However, access shall not be denied to the person who is the subject of the record. As used in this subdivision, "personal contact information" means the information provided to the public body or any of its members for the purpose of receiving electronic communications from the public body or any of its members and includes home or business (i) address, (ii) email address, or (iii) telephone number or comparable number assigned to any other electronic communication device.

§ 2.2-3705.1 (12): Contracts. Provides an exemption for:

Information relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such information would adversely affect the bargaining position or negotiating strategy of the public body. Such information shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of information relating to such transactions shall be governed by the Virginia Public Procurement Act.

§ 2.2-3705.1 (13): Account numbers. Provides an exemption for:

Account numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body. However, access shall not be denied to the person who is the subject of the information. For the purposes of this subdivision, "financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, savings and loan companies or associations, and credit unions.

§ 2.2-3705.2 (2): Security systems. Provides an exemption for:

Documentation or other information that describes the design, function, operation, or access control features of any security system, whether manual or automated, which is used to control access to or use of any automated data processing or telecommunications system.

§ 2.2-3705.2 (14): Public safety; critical infrastructure, surveillance, etc. Provides an exemption for:

Information contained in (i) engineering, architectural, or construction drawings; (ii) operational, procedural, tactical planning, or training manuals; (iii) staff meeting minutes; or (iv) other records that reveal any of the following, the disclosure of which would jeopardize the safety or security of any person; governmental facility, building, or structure or persons using such facility, building, or structure; or public or private commercial office, multifamily residential, or retail building or its occupants:

a. Critical infrastructure information or the location or operation of security equipment and systems of any public building, structure, or information storage facility, including ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, or utility equipment and systems;

b. Vulnerability assessments, information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities, or security plans and measures of an entity, facility, building structure, information technology system, or software program;

c. Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or

d. Interconnectivity, network monitoring, network operation centers, master sites, or systems related to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system.

The same categories of records of any person or entity submitted to a public body for the purpose of antiterrorism response planning or cybersecurity planning or protection may be withheld from disclosure if such person or entity in writing (a) invokes the protections of this subdivision, (b) identifies with specificity the records or portions thereof for which protection is sought, and (c) states with reasonable particularity why the protection of such records from public disclosure is necessary to meet the objective of antiterrorism, cybersecurity planning or protection, or critical infrastructure information security and resilience. Such statement shall be a public record and shall be disclosed upon request.

Any public body receiving a request for records excluded under clauses (a) and (b) of this subdivision 14 shall notify the Secretary of Public Safety and Homeland Security or his designee of such request and the response made by the public body in accordance with § 2.2-3704.

Nothing in this subdivision 14 shall prevent the disclosure of records relating to (1) the structural or environmental soundness of any such facility, building, or structure or (2) an inquiry into the performance of such facility, building, or structure after it has been subjected to fire, explosion, natural disaster, or other catastrophic event.

As used in this subdivision, "critical infrastructure information" means the same as that term is defined in 6 U.S.C. § 671.

§ 2.2-3705.4 (1): Scholastic records. Provides an exemption for:

Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.

The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.

Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed.

§ 2.2-3705.5 (1): Health. Provides an exemption for:

Health records, except that such records may be personally reviewed by the individual who is the subject of such records, as provided in subsection F of § 32.1-127.1:03.

Where the person who is the subject of health records is confined in a state or local correctional facility, the administrator or chief medical officer of such facility may assert such confined person's right of access to the health records if the administrator or chief medical officer has reasonable cause to believe that such confined person has an infectious disease or other medical condition from which other persons so confined need to be protected. Health records shall only be reviewed and shall not be copied by such administrator or chief medical officer. The information in the health records of a person so confined shall continue to be confidential and shall not be disclosed by the administrator or chief medical officer of the facility to any person except the subject or except as provided by law.

Where the person who is the subject of health records is under the age of 18, his right of access may be asserted only by his guardian or his parent, including a noncustodial parent, unless such parent's parental rights have been terminated, a court of competent jurisdiction has restricted or denied such access, or a parent has been denied access to the health record in accordance with § 20-124.6. In instances where the person who is the subject thereof is an emancipated minor, a student in a public institution of higher education, or is a minor who has consented to his own treatment as authorized by § 16.1-338 or 54.1-2969, the right of access may be asserted by the subject person.

For the purposes of this chapter, statistical summaries of incidents and statistical data concerning abuse of individuals receiving services compiled by the Commissioner of Behavioral Health and Developmental Services shall be disclosed. No such summaries or data shall include any information that identifies specific individuals receiving services.

§ 2.2-3705.6 (3): Economic development and retention. Provides an exemption for:

Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body, used by the public body for business, trade, and tourism development or retention; and memoranda, working papers, or other information related to businesses that are considering locating or expanding in Virginia, prepared by a public body, where competition or bargaining is involved and where disclosure of such information would adversely affect the financial interest of the public body.

§ 2.2-3705.6 (10): Virginia Public Procurement Act. Provides an exemption for:

Confidential information designated as provided in subsection F of § 2.2-4342 as trade secrets or proprietary information by any person in connection with a procurement transaction or by any person who has submitted to a public body an application for prequalification to bid on public construction projects in accordance with subsection B of § 2.2-4317.

§ 2.2-3705.6 (11): Virginia Public-Private Transportation Act of 1995 and the Public-Private Education Facilities and Infrastructure Act of 2002. Provides an exemption for:

a. Memoranda, staff evaluations, or other information prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) where (i) if such information was made public prior to or after the execution of an interim or a comprehensive agreement, § 33.2-1820 or 56-575.17 notwithstanding, the financial interest or bargaining position of the public entity would be adversely affected and (ii) the basis for the determination required in clause (i) is documented in writing by the responsible public entity; and

b. Information provided by a private entity to a responsible public entity, affected jurisdiction, or affected local jurisdiction pursuant to the provisions of the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) if disclosure of such information would reveal (i) trade secrets of the private entity; (ii) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (iii) other information submitted by the private entity where if such information was made public prior to the execution of an interim agreement or a comprehensive agreement, the financial interest or bargaining position of the public or private entity would be adversely affected. In order for the information specified in clauses (i), (ii), and (iii) to be excluded from the provisions of this chapter, the private entity shall make a written request to the responsible public entity:

(1) Invoking such exclusion upon submission of the data or other materials for which protection from disclosure is sought;

(2) Identifying with specificity the data or other materials for which protection is sought; and

(3) Stating the reasons why protection is necessary.

The responsible public entity shall determine whether the requested exclusion from disclosure is necessary to protect the trade secrets or financial information of the private entity. To protect other information submitted by the private entity from disclosure, the responsible public entity shall determine whether public disclosure prior to the execution of an interim agreement or a comprehensive agreement would adversely affect the financial interest or bargaining position of the public or private entity. The responsible public entity shall make a written determination of the nature and scope of the protection to be afforded by the responsible public entity under this subdivision. Once a written determination is made by the responsible public entity, the information afforded protection under this subdivision shall continue to be protected from disclosure when in the possession of any affected jurisdiction or affected local jurisdiction.

Except as specifically provided in subdivision 11 a, nothing in this subdivision shall be construed to authorize the withholding of (a) procurement records as required by § 33.2-1820 or 56-575.17; (b) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the responsible public entity and the private entity; (c) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds; or (d) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project.

For the purposes of this subdivision, the terms "affected jurisdiction," "affected local jurisdiction," "comprehensive agreement," "interim agreement," "qualifying project," "qualifying transportation facility," "responsible public entity," and "private entity" shall mean the same as those terms are defined in the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or in the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.).

Virginia Freedom of Information Advisory Council

Contact Information

Alan Gernhardt

Executive Director

Joseph Underwood

Senior Attorney

General Assembly Building

201 North 9th Street

Richmond, VA 23219

Telephone: (804) 698-1810

Toll-Free: 1-866-448-4100

Email: foiacouncil@dls.virginia.gov

Website: http://foiacouncil.dls.virginia.gov

Advisory opinions of the FOIA Council are available on the FOIA Council website.



[1] FOIA Council Opinions AO-3-00, AO-05-09. All FOIA opinions are available on the FOIA Council's website.

[2] FOIA Council Opinion AO-07-11.

[3] FOIA Council Opinions AO-18-04, AO-07-11.

[4] FOIA Council Opinions AO-07-11, AO-05-18.

[5] FOIA Council Opinions AO-34-01, AO-47-01, AO-05-06, AO-02-08, AO-07-08, AO-07-11, AO-06-14, AO-01-17.

[6] FOIA Council Opinions AO-10-02, AO-12-03, AO-18-03, AO-01-08, AO-07-08, AO-01-17.

[7] Prior to July 1, 2007, FOIA permitted four responses to a records request; see FOIA Council Opinions AO-1-00, AO-21-01, AO-12-03, AO-18-03, AO-16-04, AO-05-05, AO-05-06, AO-11-07, AO-12-07, AO-03-08, AO-07-08, AO-13-08, AO-01-09, AO-07-11, AO-02-12, AO-01-17.

[8] FOIA Council Opinions AO-11-00, AO-6-01, AO-11-01, AO-35-01, AO-49-01, AO-01-02, AO-03-02, AO-10-02, AO-11-03, AO-04-04, AO-10-04, AO-16-04, AO-05-05, AO-06-05, AO-09-07, AO-11-07, AO-07-08, AO-12-09, AO-07-11, AO-04-15.

[9] FOIA Council Opinions AO-1-00, AO-21-01, AO-25-01, AO-32-01, AO-39-01, AO-49-01, AO-05-02, AO-10-02, AO-14-02, AO-08-03, AO-20-03, AO-21-03, AO-01-04, AO-04-04, AO-16-04, AO-23-04, AO-06-05, AO-02-07, AO-09-07, AO-06-09, AO-07-11, AO-03-12, AO-05-13, AO-02-14, AO-04-15.

[10] FOIA Council Opinions AO-21-01, AO-14-02, AO-04-04, AO-16-04, AO-08-09, AO-07-11.

[11] FOIA Council Opinions AO-11-00, AO-10-02, AO-11-02, AO-14-02, AO-21-03, AO-05-05, AO-08-09, AO-05-13.