Advisory Council

Public bodies have five working days to respond to a request for public records, and may invoke an additional seven working days to respond. The statutory remedy for a FOIA violation is to file a petition for mandamus or injunction supported by an affidavit showing good cause. Only a court may decide upon the appropriate remedy in each case.

Requesters and public bodies may reach their own agreements on the terms of production of public records. Such agreements should address any variations in response timing and charges to which the parties agree.

Suicide reports and related records may be withheld as criminal investigative files because suicide remains a crime in Virginia. To the extent it conflicts with this opinion, AO-10-03 is hereby rescinded.

FOIA does not define the term "custodian," but for FOIA purposes, generally the custodian is the person in charge of public records. Each public body may designate who is to act as custodian of its public records. FOIA does not apply to records that are not public records in the transaction of public business.

This opinion discusses the use of the contract negotiations and economic development records exemptions. FOIA allows a records custodian to disclose exempt records in his discretion. FOIA does not require a custodian to engage in a balancing test in exercising that discretion, or to justify or explain a decision not to disclose exempt records.

FOIA Council weighs in on availability of date of birth information held by law enforcement agencies.

A committee or advisory group of a public body that performs a delegated function or advises the public body is itself a public body. A committee or advisory group created by an individual to advise that individual is not a public body. In either case, however, records prepared, owned, or possessed by the committee or advisory group in the transaction of public business are public records subject to FOIA.

A contract between a public body and a public employee settling an employment dispute may be withheld as a personnel record. However, accounting records that reflect payments pursuant to a settlement agreement are not exempt.

Charges for public records are limited to actual costs. The actual cost to provide electronic records is not the same as the cost to provide paper copies. Estimates must be provided in advance if requested.

A committee that was created by action of a city council, but does not advise the city council or perform a delegated function of the city council, is not a public body subject to FOIA for meetings purposes. However, records of such a committee that are in the transaction of public business are public records subject to FOIA.