Overview

• Out of state requesters face steep hurdles
• Online media not considered media for processing purposes
• Designated public records officers, strict five-day window, and state Ombudsman streamline process

Virginia is ground zero for the “out of state” FOIA debate over whether states can reject requests from requesters that “aren’t citizens.” It was an argument that was taken all the way to the Supreme Court in McBurney v. Young, where a majority opinion found that yes, it was legal for states to discriminate, on the grounds that all a determined requester had to do was simply get somebody to file on their behalf. We don’t have room to rail against the wisdom of that decision here, we simply have to accept it an move on.

There are exemptions to this restriction for members of the news media – specifically for Virginia-based or national publications – but they operate on the rather outdated notion that online media isn’t media. Ultimately, it’s easier to find a proxy.

With all that said, once you’ve filed as a Virginia citizen (and shown a driver’s license or at least provided a valid in-state address), the process is fairly streamlined – agencies all have designated public records officers, and their five-day window to respond (with a seven-day extension if they can’t provide final determination) is one of the shortest in the country. And while there is no formal appeals process, there is the Virginia Freedom of Information Advisory Council, a state agency that acts as an ombudsman and intermediary in disputes, similar to OGIS at the federal level.

All in all, it’s a pretty solid example of an effective public records law. If only they’d share it with the rest of the country.

The Law

• The agency must respond to a request, either with documents or the reasons that documents could not yet be provided, within five days.
• Applies to the executive branch and state agencies
• Must be a Virginia resident.
• No administrative appeal option.

Supplemental

Public Records Act

The Details

Can you submit a request if you’re not a resident?

No. The law only applies to residents of Virginia.

To whom does this apply?

Executive?

Yes.

Judicial?

No.

Legislative?

No.

Is there a designated records custodian?

Yes, each agency is required to have a designated FOIA officer.

A. All state public bodies, including state authorities, that are subject to the provisions of this chapter and all local public bodies that are subject to the provisions of this chapter, shall designate and publicly identify one or more Freedom of Information Act officers (FOIA officer) whose responsibility is to serve as a point of contact for members of the public in requesting public records and to coordinate the public body’s compliance with the provisions of this chapter.

Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, § 2.2-3704.2

Who is exempted?

Legislative records are exempted, as are the records of petit juries and grand juries. Other judicial records are governed by other laws.

How can requests be submitted?

In-person?

Yes.

Verbally?

Yes. However, the law makes no distinction between oral and written requests.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

Within five days, agencies are expected to provide materials, a date when materials will be provided, or a reason materials will not be provided.

Are there provisions regarding the extension of response times?

Yes. If materials are not provided within five days, the agency shall have another seven days. If that period of time is still not sufficient, the agency may reach an agreement with the requester or petition the court.

“4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses.” Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, § 2.2-3704.B.2

Does the agency have to give you a tracking number or estimated date of completion?

Yes, if an agency cannot provide materials within 10 days, the law requires that they provide an estimated date on which records will be provided. No tracking number is explicitly required.

Can they ask why you ask?

Agencies aren’t allowed to limit disclosure based on the motivation of the request. (Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E.2d 625 (1988))

What enforcement?

One may sue.

“A. Any person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause.” Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, §2.2-3713

Fees?

An agency may charge reasonable fees not to exceed the actual cost of access, search, and duplication.

“F. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.” Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, §2.2-3713

Are there fee waivers for media requests or those made in the public interest?

There are no provisions regarding fee waivers.

Attorney’s fees - Can you win them?

Yes, you may.

“If the court finds the denial to be in violation of the provisions of this chapter, the petitioner shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys’ fees from the public body if the petitioner substantially prevails on the merits of the case, unless special circumstances would make an award unjust. In making this determination, a court may consider, among other things, the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body’s position.” Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, §2.2-3713

Exemptions and Appeals

What exemptions exist?

There are many exemptions related to public safety, administrative investigations, educational records, health and social services, and trade secrets.

Are they mandatory or discretionary?

Most exemptions may be applied at the discretion of the records custodian.

Do they have to tell you why a portion or pages were redacted or withheld?

Yes, and elements that are not specifically exempt should be provided.

”No provision of this chapter is intended, nor shall it be construed or applied, to authorize a public body to withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure by this chapter or by any other provision of law.” Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, §2.2-3701

How much time do you have to appeal?

There is no administrative appeal option.

To whom does the appeal go?

There is no appeal option. However, “Any person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause.” Typically, the venue for petition is the general district court or the circuit court for the jurisdiction in which the public body being challenged is located. Code of Virginia, Title 2.2. Administration of Government, Chapter 37 - Virginia Freedom of Information Act, §2.2-3713

Can you appeal a delay?

There is no appeal option, though one may enforce one’s rights by filing a petition for mandamus or injunction.

Do agencies have to tell you where to send your appeal?

There is no appeal option.

What if your appeal is denied?

There is no appeal option.

Where else can you turn?

The Virginia Freedom of Information Advisory Council answers inquiries formally and informally. However, courts are not bound by their opinions.

Are all appeals kept officially?

There is no appeal option.