Slide 1: Access
to Public Records.
Virginia Freedom of Information Act
Virginia Freedom of Information Advisory
Council
http://foiacouncil.dls.virginia.gov/
(804) 698-1810
Slide 2: Introduction
to Records & FOIA.
All public records are presumed open
unless specifically exempt.
Definition of public record (§ 2.2-3701)
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.
Slide 3: Requesting
Records § 2.2-3704.
Who can make a request?
Citizens of the Commonwealth (McBurney
v. Young, (U.S. 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
Slide 4: Responding
to Requests § 2.2-3704.
Five working days to respond
First day to respond is the day after the
request is receive
Working days do not count 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
Slide 5: Five
Permissible Responses.
1. Provide the requested records
2. Requested records are being entirely withheld
3. Requested records are being provided in part and
withheld in part
4. Requested records could not be found or do not exist
5. Additional time needed to search for/produce records
(up to seven additional working days)
Slide 6: 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 being entirely withheld, response must identify
with reasonable particularity the volume of the withheld records
Slide 7: 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, it must 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 working days is not enough,
negotiate with requester; if cannot reach agreement, can petition court for
additional time
Slide 8: 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 parent or guardian (of minor student) or student (if 18
years or older)
Public body shall make all reasonable
efforts to supply the requested records at the lowest possible cost
May charge for exclusion review (ATI v.
UVA, Va. Supreme Ct., 2014)
Slide 9: Charging
for Records (continued).
Before searching for records, must notify
requester of public bodys right to charge and requesters right to a cost
estimate
If requester asks for an estimate, public
body must provide it
Time period is tolled from time estimate
is sent until requester responds
If no response within 30 days, request
deemed withdrawn
Public body may request a deposit for
charges in excess of $200
Time period is tolled until deposit is
paid
If a bill goes unpaid 30 days or more, do
not have to respond to new requests until the outstanding balance is paid
Slide 10: 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
Slide 11:
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)
Slide 12:
Q & A