Advisory Council

FOI Advisory Council Opinion AO-02-24

A public body shall not be required to create a new record if the record does not already exist; however, a public body is required to provide to a requester, unless otherwise specifically provided by law, a public record in the medium requested if the public record is identified with reasonable specificity and if that medium is used by the public body in the regular course of business.

FOI Advisory Council Opinion AO-01-24

Discusses the circumstances under which a pro se petitioner becomes eligible to obtain reimbursement of attorney fees after hiring an attorney to represent the petitioner in a FOIA matter or during the appeal process. A court would have to determine that a petitioner's rights and privileges were denied in violation of law, that the petitioner had substantially prevailed on the merits of his case, and that there were no special circumstances that would make the awarding of attorney fees and costs unjust. The court would have to determine the amount of attorney fees and costs that were incurred by a petitioner in the litigation proceedings and award a reimbursement amount

FOI Advisory Council Opinion AO-03-23

Upon a receipt of a request, a public body must respond in accordance with the established provisions and timeframes in subsection B of § 2.2-3704. If part of the requested records are being withheld from release, a public body shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. Considering the policy of FOIA and the legal duties it imposes, there is a presumption of good faith that a custodian of records will obey the law in carrying out their duties by searching for and providing all records as requested unless the records are exempt or prohibited from release. FOIA is intended to be a non-adversarial process for obtaining information.

FOI Advisory Council opinion AO-02-23

A Governor-elect's transition teams generally would not be public bodies subject to FOIA unless they are supported wholly or principally by public funds. Transition team records might be public records subject to FOIA (i) if the transition team is a public body because it is supported by public funds or (ii) if transition team records are possessed by another public body in the transaction of public business. Applying FOIA's narrow construction rule for exemptions, the working papers and correspondence exemption, subdivision 2 of § 2.2-3705.7, may only be used by those listed in the exemption itself. While the "Office of the Governor" is listed in the exemption, "Governor-elect" is not and therefore, a Governor-elect may not use the working papers and correspondence exemption.

FOI Advisory Council Opinion AO-01-23

Public Subsection D of § 15.2-2907 exempts the Commission on Local Government and certain meetings from FOIA, but does not otherwise address access to public records under FOIA. Also discussed the attorney-client privilege exemption, delivery methods and remedies available under FOIA.

FOI Advisory Council Opinion AO-01-22

Public bodies are required to provide cost estimates for the production of public records upon request, but FOIA does not specify the level of detail to be included with a cost estimate. Because an estimate is inexact by definition and sometimes the total costs that may be incurred cannot be predicted with accuracy, FOIA does not require a public body to declare a maximum amount. In such situations, public bodies are encouraged to communicate the factual basis for the estimate and seek to reach an agreement with the requester on the production of records, which may include agreed limits on the amount of time and money to
be expended.

FOI Advisory Council Opinion AO-02-21

The Parole Board is largely excepted from FOIA, but that exception only applies to the Board itself. However, the Office of the State Inspector General (OSIG) may withhold certain records it receives from the Board pursuant to the administrative investigation exemption at subdivision 7 of § 2.2-3705.3. The same exemption requires that OSIG must release records of completed investigations in redacted form. FOIA does not prohibit the release of OSIG reports by members of the General Assembly, but it would be beyond the statutory authority of this office to opine whether other laws outside of FOIA may act as such prohibitions on voluntary disclosure.

FOI Advisory Council Opinion AO-01-21

Although personnel records may be withheld from public disclosure, accounting records that reflect payments made by a public body to a former employee pursuant to a settlement agreement are not exempt. As this office is not a trier of fact, only a court has the authority to resolve factual disputes about specific records.

FOI Advisory Council Opinion AO-04-20

The provisions of § 2.2-3708.2 allowing members to participate in meetings by electronic communication means are alternative meetings procedures, not exemptions from public access that would allow meetings to be closed to the public. If a member is calling in due to a disability or medical condition or due to a personal matter, the member must specify which reason it is in order to notify the chair and comply with the requirements for minutes. A generalized concern about illness is not a sufficient reason to use the provision allowing remote participation due to a disability or medical condition, but following the recommendations of VDH and CDC to stay home during the COVID-19 state of emergency is a sufficient reason, particularly if the member is in one of the categories at higher risk to contract a severe illness. However, each body may set its own policy on participation as allowed by FOIA, up to and including not using these remote participation provisions at all.


FOI Advisory Council Opinion AO-03-20

The records exclusion at subdivision 1 of § 2.2-3705.3 exempts from mandatory disclosure "information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to" certain public bodies. That language includes the application and materials submitted. Additionally, unlike several other exemptions in the same section, the language of this exemption does not limit its application to active investigations nor does it require the disclosure of inactive or completed reports.


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