The Virginia FOIA Opinion Archive

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FOI Advisory Council Opinion AO-06-18

It is possible that electronic mail message headers could include legal advice and information protected by the attorney-client privilege exempt from mandatory disclosure pursuant to subsection 2 of § 2.2-3705.2. That exemption includes advice from legal counsel to officers of a public body as well as employees of the public body, and does not place a limit on how many officers or employees of the public body may receive the advice at one time. It is also possible that electronic mail message headers could include information describing the design, function, operation, or access control features of a security system that would be exempt from mandatory disclosure pursuant to subsection 2 of § 2.2-3405.1. 
 

FOI Advisory Council Opinion AO-07-18

Application forms for medical cannabis pharmaceutical processor permits that are maintained by the Board of Pharmacy are not subject to the disclosure requirements of FOIA pursuant to § 54.1-108.

FOI Advisory Council Opinion AO-05-18

A custodian may require a requester of public records to provide his legal name and address and may attempt to verify that a requester is a citizen of the Commonwealth, a representative of newspapers and magazines with circulation in the Commonwealth, or a representative of radio and television stations broadcasting in or into the Commonwealth. Requiring a specific form of identification without an alternative for those who do not have such identification, however, restricts access to information promised by the policy of FOIA. Public bodies must make a proper motion to enter into each closed meeting, even if there are multiple closed meetings within the same open meeting.

FOI Advisory Council Opinion AO-04-18

Discusses general open meetings requirements of public bodies and their committees as well as obligations of public bodies in response to a request for public records. A public body is not required to record open meetings itself but must afford the public the opportunity to record the meetings. A committee of a public body is not required to record minutes of an open meeting if the committee membership is comprised of less than a majority of the public body membership. While a public body must post a link on its website to any routine exemption policy for records, there is no requirement as to how that policy is formed or that the policy be contained in a physical policy document. A public body must state in writing the reasons why public records are not provided in response to a request for public records.

FOI Advisory Council Opinion AO-08-18

Discusses the use of the contract negotiations and economic development records exemptions. FOIA allows a records custodian to disclose exempt records in his discretion. Also discuss the working papers exemption as it applies to Cabinet Secretaries.

Batterson v. Voorhees

Batterson v. Voorhees, Powhatan County Judge Paul W. Cella

FOI Advisory Council Opinion AO-01-18

FOIA provides that public records must be disclosed except as otherwise specifically provided by law. Tax code provisions such as § 58.1-3 are "as otherwise specifically provided by law." The statutory authority of this office is limited to FOIA matters.

Hurst v. City of Norfolk (circuit court)

In a case brought against the City of Norfolk alleging violations of FOIA's response times and fee estimates, a Norfolk Circuit Court gives much deference to FOIA Council prior opinions and finds:

Virginia Education Association v Davison

A unanimous Supreme Court rules a Loudoun County parent is not entitled to student growth percentile data for certain Loudoun County Public School students under the Virginia Freedom of Information Act.

Davison v. Dunnavant (circuit court)

Henrico circuit judge rules a senator can be sued for a FOIA violation in her individual capacity and that Facebook posts can be public records. But, the Facebook posts in this case are deemed not about public business and so did not need to be disclosed.

Daily Press v. OES

Clerks of court are the individual custodians of the court case data supplied to the Office of Executive Secretary's online database.

FOI Advisory Council Opinion AO-05-17

An organization, corporation, or agency in the Commonwealth that receives two-thirds (66.6%) or greater support from public funds is considered to be "supported ... principally by public funds" and therefore is a "public body" subject to FOIA. Prior opinions advised measuring an entity's level of funding at the time a request is made, but did not specify a time period to use as a measure. FOIA itself is silent on this point. We recommend using a fiscal year as the basis for determination to provide a balance between predictability in knowing whether an entity is subject to FOIA, and flexibility in recognizing changing factual circumstances.http://www.opengovva.org/foi-opinions/ao-09-05

FOI Advisory Council Opinion AO-04-17

The Greater Williamsburg Chamber and Tourism Alliance is (for now) a public body subject to FOIA's records and meetings provisions because it receives 68% of its funding from local government budget appropriations. Should the local government funding drop below 66% of the total budget, the alliance would cease to be a public body subject to FOIA.

FOI Advisory Council Opinion AO-01-17

Opinion summarizes the requirements for responding to a request. A failure to respond to a request for public records is deemed a denial and a violation of FOIA. The statutory remedy for a violation is to file a petition for mandamus or injunction in general district or circuit court. The Newport News Economic/Industrial Development Authority is a public body subject to FOIA.

FOI Advisory Council Opinion AO-01-16

Records that have been prepared by or for the Office of the Governor for personal or deliberative use may be withheld as working papers. However, if those records are disseminated by the Office of the Governor to another agency for that agency's use in carrying out its statutory duties, then the records may not be withheld as working papers because they are no longer for personal or deliberative use of the Office of the Governor. Pursuant to subsection B of § 24.2-404, FOIA does not apply to records about individuals maintained in the voter registration system.

AG letter 05-27-2016

Informal opinion from the AG's office (authored by Opinions Counsel Tim Oksman) says that locally filed conflicts of interest forms cannot be redacted in response to a FOIA request.

Harki v. DCJS

Harki v. Department of Criminal Justice Services: DCJS must turn over database of training records for law enforcement officers. Judge Joseph A. Migliozzi Jr. agrees that they are personnel records, but notes that the department said it would turn the records over (i.e., exercise their discretion to release records that could be withheld) and then reneged. The opinion also rejects the DCJS argument that it didn't own the database and that it really belonged to the individual law enforcement agencies that supplied the data.

FOI Advisory Council Opinion AO-08-15

Body worn and dashboard video recordings made by law enforcement are public records subject to FOIA. The application of exemptions from mandatory disclosure depends on the contents of the video. Duty to redact is in question following Virginia Supreme Court ruling in 2015.

Virginia Department of Corrections v. Surovell

The Virginia Supreme Court rules that a trial court must make its own determination of the property of withholding documents when a security interest is cited, but while doing so, it must accord "substantial weight" to the agency's (in the case, the Virginia Department of Corrections) determinations.

The court also holds that there is no duty to redact a record that is exempt under an exemption that is not limited by the phrases "to the extent" and "portions of."

(On this last point, the majority opinion does not even cite 2.2-3704 where it says one of the four allowable responses is to redact a record if it has exempt material in it.)

FOI Advisory Council Opinion AO-06-15

A local governing body may not convene a closed meeting in order to discuss the salaries of the members pursuant to the personnel closed meeting exemption.

FOi Advisory Council Opinion AO-05-15

Meeting minutes must include a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. A verbatim transcript is not required. A public body has the discretion to include specific comments made at the meeting or not so long as the minutes include the required summary and record of votes.

FOI Advisory Council Opinion AO-04-15

A public body does not have to create a new record that does not already exist, but may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. Clear and concise communications are critical when making and responding to requests.

FOI Advisory Council Opinion AO-03-15

The Office of Executive Secretary by statute operates and maintains a case management system, the operation and maintenance of the system is the transaction of OES' public business, and therefore OES' case management records are public records subject to FOIA. By operation of law, the respective clerks also remain custodians of those records, and they bear responsibility for maintaining the integrity of those records.  To the extent that OES owns or possesses such data, it is also a custodian of such records and likewise responsible to respond to a request for it under FOIA.

Fitzgerald v. Loudoun County Sheriff's Office

In a proceeding under the Virginia Freedom of Information Act, to obtain a copy of a suicide note contained in a criminal investigative file opened by a sheriff’s office under its lawful authority to investigate the unexpected and unattended death of a senior United States Air Force official, the sheriff had the discretion, but not the duty, to disclose documents within this file and eventual closure of the file did not change its character. Nor did the suicide note, standing alone, constitute a compilation subject to disclosure under Code § 15.2-1722(B). The judgment of the circuit court denying a writ of mandamus to compel disclosure of this document is affirmed.

Attorney General Opinion 14-063

"For the foregoing reasons, it is my opinion that local law enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request.""For the foregoing reasons, it is my opinion that local law enforcement agencies must disclose adult arrestee photographs pursuant to a valid FOIA request if they are contained in a database maintained by the local law enforcement agency, regardless of whether the defendant is still incarcerated or has been released, unless disclosing them will jeopardize a felony investigation. However, photographs may not be drawn from the Central Criminal Records Exchange for disclosure at any time to comply with a FOIA request."

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