Access to Public Records
Virginia Freedom of Information Act

Virginia Freedom of Information Advisory Council

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

foiacouncil@dls.virginia.gov

(804) 698-1810

Introduction to Records & FOIA

• All public records are presumed open unless specifically exempt.

• Definition of “public record” (§ 2.2-3701 of the Code of Virginia)

• all writings and recordings that consist of letters, words or numbers, or their equivalent . . . however stored, and regardless of physical form or characteristics,

• prepared or owned by, or in the possession of a public body or its officers, employees or agents

• in the transaction of public business.

Requesting Records
§ 2.2-3704

• Who can make a request?

• Citizens of the Commonwealth (McBurney v. Young, (569 U.S. 221 (2013))

• Representatives of newspapers & magazines with circulation in the Commonwealth

• Representatives of radio & television stations broadcasting in or into the Commonwealth

• How to make a request

• Identify records with reasonable specificity

• Name & legal address may be required

Responding to Requests
§ 2.2-3704

• Five working days to respond

• First day to respond is the day after the request is received

• “Working days” does not include weekends, legal holidays, or days when the public body is closed

• Five permissible responses to a request

• Creation of new records not required, but may abstract or summarize by agreement

• Make reasonable efforts to agree on the production of records

Five Permissible Responses

• Provide the requested records

• Requested records are being entirely withheld

• Requested records are being provided in part and withheld in part

• Requested records could not be found or do not exist

• Additional time needed to search for/produce records (up to seven additional working days)

How to Respond to a Request

• If any part of the answer is “no,” the response must:

• Be in writing;

• Identify with reasonable particularity the subject matter of the withheld records; AND

• Cite the specific section(s) of the Code of Virginia that authorizes the records to be withheld

• NOTE: if the record is being entirely withheld, the response must identify with reasonable particularity the volume of the withheld records

How to Respond to a Request.

• If the records cannot be found or do not exist, the response must:

• Be in writing AND

• If the public body knows that another public body has the records, provide contact information for the other public body.

• If the public body needs more time, the response must:

• Be in writing AND

• Specify the conditions that make production of the records within the five-working-day period impossible.

• If 5 + 7 = 12 working days is not enough, negotiate with requester; if cannot reach agreement, can petition court for additional time

Charging for Records

A public body:

• May make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.

• Cannot charge more than the actual cost to the public body.

• Cannot charge for certain scholastic records if requested by a parent or guardian (of a minor student) or student (if 18 years or older).

• Shall make all reasonable efforts to supply the requested records at the lowest possible cost.

• May charge for exclusion review (ATI v. UVA, 287 Va. 330 (2014)).

Charging for Records
(continued)

A public body:

• Before searching for records, must notify the requester of the public body’s right to charge and the requester’s right to a cost estimate.

• If requester asks for an estimate, must provide it.

• Time period is tolled from time estimate is sent until requester responds

• If no response within 30 days, request deemed withdrawn

• May request a deposit for charges in excess of $200

• Time period is tolled until deposit is paid

• If a bill goes unpaid for 30 days or more, do not have to respond to new requests until the outstanding balance is paid

Electronic Records

• Requester may choose any format the public body uses in the regular course of business

• Converting format or redacting exempt fields is not considered creating a new record

• Use and retention of e-mail

• Virginia Public Records Act, § 42.1-76 et seq.

• Definition of “public record”

• Retention schedules set by the Library of Virginia

• Tips for using and managing email

Exemptions of General Application

• Personnel records - § 2.2-3705.1 (1)

• Attorney-client privilege - § 2.2-3705.1 (2)

• Legal memoranda and other work product - § 2.2-3705.1 (3)

• Contract negotiations - § 2.2-3705.1 (12)

• Procurement exemptions - § 2.2-3705.6 (10) and (11)

• Account & routing numbers - § 2.2-3705.1 (13)

• Economic development and retention - § 2.2-3705.6 (3)