The Virginia FOIA Opinion Archive

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Batterson v. Voorhees

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

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."

FOI Advisory Council Opinion AO-06-14

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.

FOI Advisory Council Opinion AO-05-14

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.

FOI Advisory Council Opinion AO-04-14

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.

ATI v. UVA

Supreme Court of Virginia rules unanimously that UVA can withhold records requested by the American Tradition Institute (ATI) under the exemption for academic research and "proprietary records." Court adopts interpretation of "proprietary" that encompasses records that are within the "ownership, title and possession" of the university. Though the ruling is limited to the research exemption (2.2-3705.4(4)), Justice Mims, in concurrence, notes the potential for expansion into FOIA's many other references to "proprietary" records.

The opinion also gives the green light to charging for the review of records to determine their responsivness to a request.

The case was clouded from the beginning by the topic and target of ATI's request: the emails of climate scientis Michael Mann. The issues became one's opinion on climate change and/or one's feelings on academic freedom instead of on whether FOIA's exemption did or did not apply.

FOI Advisory Council Opinion AO-02-14

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.

FOI Advisory Council Opinion AO-01-14

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.

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