The Virginia FOIA Opinion Archive

Former police officer is not entitled to investigative records about an incident involving the officer because he is not a "data subject" under the Government Data Collection & Dessimination Practices Act. Also some FOIA issues.

The Court of Appeals rules that a city/town invoking the working papers and correspondence exemption (in particular, the correspondence part), cannot invoke it on behalf of both the city/town mayor AND the city/town manager (or other executive officer). The city/town must choose between the two. The court also says that the method by which Warrenton selected records for the judge to look at privately to determine if the exemption for working papers applied was inadequate. The trial judge should have required the town to prepare a federal-like Vaughn Index or to pick records randomly or representatively. Whichever method, the main this is that the government has to explain to the judge and other party why and how these records were chosen. Case is remanded for new sampling.

The Court of Appeals of Virginia rules -- in an unpublished opinion -- that the City of Norfolk cannot withhold records related to a juvenile crime victim under §16.1-301, which, the court says, only applies to the withholding of records related to juvenile defendants.

FOIA does not require a public body to charge a requester at all, but if charges are assessed, FOIA provides that a public body may only do so within the stated limitations. A public body may assess charges for the production of requested records which includes the hourly rate of pay for the staff that researched and responded to the request and cost of copies. Charges must be limited specifically to the actual cost to a public body for accessing, duplicating, supplying, or searching for the requested records. FOIA requires that a public body make all reasonable efforts to supply the requested records at the lowest possible cost. Fees for fringe benefits are a general cost associated with transacting the general business of the public body. 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 is not allowed under FOIA. There is the expectation of a "good faith" effort by public officials, employees, and staff members to conduct a search for records in responding to FOIA requests. FOIA does not require any public body's officials, employees, or staff members to recuse themselves from a records request. It is the responsibility of these officials, employees, and staff members trained in the requirements and provisions of FOIA to understand how to respond to requests in accordance with the law on behalf of the public bodies they serve.
 

Circuit Court judge Reilly Marchant rules a report prepared by a law firm for the school board was not protected by attorney-client privilege in its entirety. Specific parts that actually reflect legal advice may be redacted, but otherwise, the report is a fact-finding endeavor, not legal advice, even if legal consequences could follow from the report's release.

Hanover Circuit Court says the names of most officers in the Hanover Sheriff's office can be kept off of a spreadsheet of department salaries because some of those officers might one day work undercover.

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.

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.

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.

Mecklenburg Circuit Court judge orders release of redacted records previously withheld under the personnel records exemption.

Gloucester County General District Court: Meeting to discuss disciplining a fellow board meet was improper based on the notice given; recording made in the meeting must be released.

Supreme Court of Virginia interprets the personnel exemption and imposes guardrails on governments from applying it broadly.

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.

A Norfolk circuit judge ruled that elected officials are not public bodies who have to respond to FOIA requests, the public body's response obligations are triggered when one of those officials receives a request. The judge also makes rulings on providing a "legal address" in a request and on unauthorized prepayment requirements for requests estimated at under $200.

Loudoun County General District Court Judge Matthew Snow rules the town violated FOIA when it required a deposit of $115 (FOIA says a deposit can be requested for amounts over $200) and when the requester said she was going to ask the FOIA Council for its opinion, the town said it considered such an action a "threat" and would not process any more of the citizen's requests. (Plus, additional issues on redactions, post-litigation production of records, reasonableness of FOIA charges and attorney fees.)

The Public Records Act "clearly has an administrative purpose -- and seems, in fact, totally administrative and procedural -- for the benefit of the good operation of the state government and its agencies and (unlike FOIA) not for the benefit of individual citizens themselves." The court confirms that text messages are public records, however: "If the documents (texts) were still in the possession of the CIty, even in deleted form, I believe that the City would still have the obligation and duty to retrieve (recover) them. To me it is no different than if paper records were torn up and thown in a trashcan but had not been taken out to the garbage yet."

"The Virginia Freedom of Information Act requires local police departments to release footage from body-worn and/or dashboard cameras related to officer-involved shootings unless an exception applies." This opinion isn't novel, but it does review the issue in part under the new §2.2-3706.1.
 

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.

Mecklenburg County Circuit Court Judge J. William Watson Jr. reviewed seven sets of documents South Hill said were exempt from release as personnel records and concluded that some were and some weren't. In the process, the judge reviewed past cases and FOIA's legislative history to determine that "personnel information" should be defined as "all information necessarily compiled and held by an employer, concerning an identifiable employee, which information directly relates to the commencement, continuation or termination of the employment relationship.”

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.

District court judge imposes civil penalties on Speaker of the House for her inaccurate response to a FOIA request that a requested record did not exist.

Direct messages sent by school superintendent through Twitter's direct message platform are "correspondence" that can be withheld under the "working papers and correspondence" exemption of FOIA, 2.2-3705.7(2).

Local governments do not have authority under §15.2-1413, which allows the adoption of modifications to essential functions during an  emergency, to relax the deadlines by which to respond to FOIA requests.

The Suffolk City School Board policy, which limits board members' abilitty to seek records under FOIA, "should not impede access to public records by citizens of the Commonwelath."