Office Of Counsel’s Virginia Freedom Of Information Act Policy
REVISED February 15, 2018
- To establish an efficient and effective process of providing timely and complete responses to requests under the Virginia Freedom of Information Act (§ 2.2-3700, et seq.) (FOIA or Act);
- To facilitate the Office of the Governor’s compliance with the Act’s public disclosure requirements; and
- To advise a person seeking disclosure of public records under the Act of his or her rights and the responding public body’s responsibilities.
This Policy applies to all FOIA requests directed to the Office of the Governor, which includes the Governor; the Governor’s chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to Virginia Code § 2.2-104 (Office).
Rights and Responsibilities under the Act
The Act, § 2.2-3700, et. seq. of the Code of Virginia, guarantees citizens of the Commonwealth and representatives of the media with circulation in the Commonwealth, access to public records held by public bodies, public officials, and public employees.
A public record is any writing or recording – regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format – that is prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. All public records are presumed to be open, and may be withheld only if a specific, statutory exclusion applies.
The purpose of FOIA is to promote an increased awareness by the public of governmental activities. FOIA requires that the law be interpreted liberally, in favor of access, and that any exclusion allowing public records to be withheld must be interpreted narrowly.
A Requester’s FOIA Rights
Citizens of the Commonwealth and representatives of the media with circulation in the Commonwealth may:
- Request to inspect or receive copies of public records, or both;
- Request that any charges for the requested records be estimated in advance;
- File a petition pursuant to § 2.2-3713 in district or circuit court to compel compliance with FOIA, if the requester believes that his or her FOIA rights have been violated; and
- Request records by U.S. Mail, fax, e-mail, in person, or over the phone. FOIA does not require that the request be in writing, nor does it need to specifically state that records are being sought under FOIA. Please, however, note:
- It may be helpful to have a request in writing. This provides a record of the request. It also gives a clear statement of what records are being requesting, so that there is no misunderstanding over a verbal request. The Office, however, will respond to verbal FOIA requests if not in writing.
- The request must identify the records sought with “reasonable specificity.” This is a common-sense standard. It does not refer to or limit the volume or number of records that may be requested; rather, it requires that the request be specific enough so that the Office can identify and locate the records sought.
- The request must ask for records or documents. FOIA provides a right to inspect or copy records; it does not apply to a situation where general questions are asked about the work of the Office.
- The person requesting the records may choose to receive electronic records in any format used by the Office in the regular course of business. For example, if records maintained in an Excel database are requested, the request may elect to receive those records electronically, via e-mail or on a computer disk, or to receive a printed copy of those records.
If the Office has questions about a request, the Office will attempt to work with the person making the request to understand what information is being sought. Making a FOIA request is not an adversarial process, but the Office may need clarification regarding the request.
The Office’s Responsibilities in Responding to a FOIA Request
The Office must respond to a request within five (5) working days of receiving it. “Day One” is considered the day after the request is received. The five-day period does not include weekends or holidays. If a request is receive after 5pm EST, the request will be considered received the following working day.
The reason for the request for public records is not required. The Office will not ask why the records are being requested. FOIA does, however, permits the Office to ask the requester’s name and legal address.
FOIA requires that the Office make one of the following responses to a request within the five-day time period:
- We will provide the requested public records in their entirety.
- We will withhold all of the public records requested, because all of the public records are subject to a specific statutory exclusions. If all of the records are being withheld, the Office must provide a response in writing. That written response must identify the volume and subject matter of the records being withheld, and state the specific section of the Code of Virginia that protects the public record from disclosure.
- We will provide some of the public records requested, but will withhold others. The Office cannot withhold an entire record if only a portion of it is subject to an exclusion. In that instance, the Office may redact the portion of the record that may be withheld, and must provide the remainder of the public record. The Office must provide a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
- If it is logistically impossible for the Office to respond to a request within the five-day period, the Office must state this in writing, explaining the circumstances. This will allow the Office seven (7) additional working days to respond to the request.
If the request is for a very large number of public records and the Office cannot provide the records within twelve (12) days without disrupting other organizational responsibilities, the Office may petition the court for additional time to respond to the request. FOIA, however, requires that the Office make a reasonable effort to reach an agreement with the requester concerning the scope of the request or the production before petitioning the court.
- The Office may require a person seeking public records to pay for the records. FOIA allows the Office to charge for the actual costs of responding to FOIA requests. This would include items such as staff time spent searching for the requested records, copying costs or any other costs directly related to supplying the requested records. It cannot include general overhead costs.
- If the Office estimates that it will cost more than $200 to respond to a request, the Office may require the person seeking the public records to pay a deposit before the Office proceeds with responding to the request.
- A person seeking public records may request that the Office estimate in advance the charges for supplying the records requested. This will allow the person seeking the record to understand any costs up front, or give him or her the opportunity to modify the request in an attempt to lower the estimated costs.
Commonly used exclusions
The Act permits any public body to withhold certain records from public disclosure. The Office commonly withholds records subject to the following exclusions (although other exclusions under the Act or the Code of Virginia may also protect a public record from disclosure):
- Personnel records (§ 2.2-3705.1(1));
- Records subject to attorney-client privilege (§ 2.2-3705.1(2)) or attorney work product (§ 2.2-3705.1(3));
- Vendor proprietary information software (§ 2.2-3705.1(6));
- Records relating to the negotiation and award of a contract, prior to a contract being awarded (§ 2.2-3705.1(12)); and
- Working papers and correspondence of the Governor (§ 2.2-3705.7(2)).
DISCLAIMER: This policy is offered for informational purposes only and is not legal advice.