FOI Citizens' Guide

Virginia’s FOIA starts from the presumption that all government records and meetings are open and available to the public. A record cannot be withheld and a meeting cannot be closed unless a specific exemption applies, or unless some other statute in Virginia law applies. Just because an exemption could apply, however, doesn’t mean it must. Exemptions are discretionary, and they must be interpreted narrowly to increase awareness of all citizens of government activities. (§2.2-3700)

Getting a public record

Any Virginia citizen can ask the government to look at government records or to ask for copies of them in any medium the public body itself uses. This includes e-mail. You do not have to cite FOIA when you ask, the request does not have to be in writing and you do not have to tell the government why you want access to the record. You may want to write down your request anyway, as this will help both you and the government keep track of the request. Requests should be as specific as possible. Public officials are required to make reasonable efforts to reach an agreement over requests. (§2.2-3704)

When the government gets your FOIA request, it has five days to respond to you, by either giving you the entire record, withholding the entire record, giving you part of the record, or letting you know that it will take another seven days to fulfill the request. If any part of the record is withheld, the government must tell you exactly which FOIA exemption or other statute justifies the denial. The government doesn’t have to create a new record where one doesn’t already exist. (§2.2-3704)

There are more than 100 exemptions for disclosing records and they are arranged under various categories. Many of the exemptions can be invoked only by specific agencies. Other exemptions are of a more general nature. Some of the most commonly used exemptions have to do with personnel records; scholastic records that identify students; health, medical and social services records; records that are part of various administrative investigations; and records that reveal security or anti-terrorism measures. (§§2.2-3705.1 through 2.2-3705.8)

There is also a special section in FOIA that deals with criminal records. Police must provide "criminal incident information," which includes the date, general location and general description of felonies. Other records may be kept confidential, though, including ones being used in criminal investigations, those that would jeopardize undercover operations or expose an anonymous tipster, and those involving misdemeanors. (§2.2-3706)

The government can charge for the actual, reasonable cost of locating, copying and providing the records in response to your request. You can ask the government to itemize in advance approximately how much your request will cost. The government may ask you to make a deposit if the estimate is over $200. (§2.2-3704)

Going to a public meeting

The public has a right to attend and record or film meetings, work sessions and retreats of all public bodies, which includes local governing bodies, state agencies and their committees, subcommittees and commissions.

Before the public can attend a meeting, it has to know about it. FOIA requires the government to post notice of an upcoming meeting in two prominent location where other public notices are kept. Usually notice is also posted in the local newspaper and on the government’s Web site, if it has one. The notice must be given at least three working days before the meeting, and it must state the date, time and location of the meeting. If there is an agenda, at least one copy of it must be made available to the public at the same time the members of the public body get it. You may request that the public body send you notice of every upcoming meeting. The government has some flexibility for notice, however, when there’s a special or emergency meeting, but at least some kind of notice must still be given. (§2.2-3707)

You may record the meeting on your own, provided you don’t get in the way. The government must take minutes at the meeting. Minutes are considered public records. Though minutes don’t have to be in a specific format, they must, at a minimum, include the date, time and location of the meeting, which members of the public body were there and which ones weren’t, a summary of the discussions and a record of any votes taken. All votes must be made in front of the public; no secret ballots are allowed, nor are binding votes taken in closed session. (§§2.2-3707 and 2.2-3710)

There are certain exemptions that a public body may use to go into a closed meeting, though there aren’t as many exemptions as with records. Some frequently used exemptions are for discussions of personnel matters involving specific individuals; the sale or purchase of real estate when a bargaining position could be jeopardized; consultation with legal counsel about probable or existing lawsuits; and certain discussions that require the public body to protect its negotiating strategy. (§2.2-3711)

Before a public body may go into a closed meeting, it must make a motion in open session identifying the subject matter, stating the purpose of the meeting and identifying the specific exemption that covers the topic. A general reference to the subject is not sufficient. The members of the public body must vote on the motion. No official action may be taken in the closed session. (§2.2-3712)

When the public body comes out of the closed meeting, it must take another vote on a motion certifying that the topics identified in the motion to go into closed session were the only issues discussed. If a member of the public body disagrees with the motion, and believes that other topics were discussed, that member should say why, and this reason has to be recorded in the minutes. (§2.2-3712)

Enforcing your rights

If you feel you’ve been wrongfully denied a public record, if the government doesn’t respond to your request for records, if you think the notice for a meeting or the topic of it was improper, there are a few things you can do. For starters, you can try to work out a mutually satisfactory agreement with the public body directly. You can ask the Freedom of Information Advisory Council to issue an oral or written opinion. The council’s opinions are persuasive and its answers are generally respected by citizens and government alike. There is no charge for the council’s help.

If an amicable solution cannot be reached, a lawsuit is an option. Anyone can file a petition in general district or circuit court asking for an injunction or for a writ of mandamus, which is basically an order directing the government to do something. If you win against the government, you may be able to recoup your attorneys’ fees and costs, and the public body (or government official) may be required to pay a fine. (§§2.2-3713 and 2.2-3714)

Funding for this summary was provided by the National Freedom of Information Coalition, and was made possible by the John S. and James L. Knight Foundation.