The Virginia FOIA Opinion Archive

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."

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.

A public body may not provide a requester with a summary of an existing record instead of the record itself, even when the record may be redacted, unless the requester agrees to accept the summary instead.

A Norfolk Circuit Court Judge ruled April 15, 2020, that the Virginia Department of Corrections willfully and knowingly failed to provide a Virginian-Pilot reporter with documents he requested within the 5-day response time mandated by FOIA, nor did the VDOC ask for a 7-day extension. After repeated back and forth conversations between the reporter and the VDOC, the reporter's request was "reasonably specific," as required by FOIA, and the VDOC's attempt to argue otherwise is "disingenuous," the court wrote. Citing Hurst v. City of Norfolk, the court also ruled that even if VDOC had made a request for further specificity, that would not have tolled the 5-day response time limit.

The fundraising exemption, subdivision A 7 of § 2.2-3705.4, allows a public body to withhold certain information maintained in connection with fundraising activities by or for a public institution of higher education. The identity of a donor may only be withheld under the fundraising exemption if the donor has requested anonymity in connection with or as a condition of making a pledge or donation. Only a court has the authority to review records in camera and render a legally binding decision on whether redactions were properly made.

The exemption in subdivision 13 of § 2.2-3705.1 applies to certain account numbers and routing information, but does not address the names of credit card holders. The expedited hearing provisions in § 2.2-3713 apply regardless of whether a petition is filed in general district court or circuit court. Only a court may rule on evidentiary matters.

The exemption in subdivision 32 of § 2.2-3705.6 of FOIA applies to “information related to a grant application, or accompanying a grant application” that is submitted to the Department of Housing and Community Development as described in the exemption. Challenges to applications submitted as part of the Virginia Telecommunications Initiative program are not exempt from disclosure under this exemption as they are not submitted by the applicant.
 

Failure to provide notice and take minutes of public meetings as required by FOIA are violations of FOIA. Only a court may rule on whether any particular notice is reasonable under the circumstance for a special, emergency, or continued meeting. Once posted, notices should not be removed before the meeting occurs.

Charges for public records are limited to reasonable charges not to exceed the public body's actual costs, but the question of whether a particular charge is reasonable may be decided only by a court.

Section 54.1-108 provides that certain license applications and scoring records, among other records, are not subject to disclosure under the Virginia Freedom of Information Act. This opinion considers a dispute regarding the redaction of applicant names from records related to the application and scoring process.

Records concerning identifiable individual students, including individual students' test scores, are scholastic records that are exempt from mandatory disclosure under FOIA. The redaction of a student's name and other personal information does not necessarily make a scholastic record a nonexempt record that must be disclosed under FOIA as the record may still contain information about the specific individual, whether identified by name or not.

Access to health records is addressed by FOIA and other specific laws outside of FOIA. Where the laws differ, the more specific provisions are controlling.

The Virginia Supreme Court unanimously ruled the City of Virginia Beach erred by redacting all entries on its bill from an outside law firm that was representing the city in an eminent domain case against a city dentist.