Neighbor Law: Using Virginia’s Freedom of Information Act

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© Alice Neff Lucan

The Virginia Freedom of Information Act is designed to get you the public records that you need and to allow you to attend the meetings of public bodies. This sentence in the preamble is key: “The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”

The Virginia Code is on the web at http://law.lis.virginia.gov/vacode. The Open Records section starts at §2.2-3703 and the Open Meetings section starts at §2.2.-3707.

The Virginia FOIA contains nine exemption lists, with a total of about 115 specific items. “Exempt” means those records are not public. Plus, law enforcement agencies are given the discretion to release or withhold another long list of information items. With great restraint, I am withholding remarks about “no secrecy.”

The laws apply to all government bodies, but the General Assembly makes its own rules about meetings off the floor of either Chamber. In addition to public agencies, advisory councils, whose members are appointed by a government agency, are also subject to FOIA. So, the Crozet Community Advisory Committee, with an appointed membership, does follow FOIA, but the Crozet Citizens Association, with a voluntary membership, does not have to, though its meetings are always open to the public.

Virginia’s FOIA law has many features. Some are more useful than others.

Your request need not be in writing, though specific descriptions often help to get just what you want. The agency should not ask what you want the records for or if you represent someone else, except that the agency does have the power to determine where you live or whether you’re a journalist of some sort. The agency can ask you to pay for your copies, not to exceed the agency’s actual cost. The agency must respond, though not necessarily with the records, within five business days.

Only residents of the Commonwealth will get answers to FOIA requests, or employees of television, radio and newspapers that publish in Virginia. (The statute does not address websites.) The U.S. Supreme Court approved this Virginia rule in 2013.

Law enforcement agencies must release “incident reports” because these reports give the public a broad description of any crime. This is to aid to public safety, among other reasons, so that people may protect themselves against the same crime. Also, the information may prompt someone to call with more information about the perpetrator of the crime.

However, law enforcement agencies are not required to release anything more than an incident report about any crime, so investigative files “may” be released or not. And, they may tuck anything into investigative files, including newspaper articles.

Megan Rhyne, one Virginia FOIA expert, has observed that, “some agencies will review requests individually and release records even though they could be withheld. But other agencies will automatically refuse to release anything, even after cases are long closed. They have discretion to release, but they never exercise it.” Alan Gernhardt from the Virginia FOIA Council agrees that’s the case. “If there’s an exemption, they’re going to use it” for fear of being accused of discrimination. Would that be a “cop out”?

Meetings include gatherings of at least three members of the public body. If it is a local public body, it may not hold meetings electronically, but can tape, broadcast or stream meetings so that more people can listen and watch. State public bodies can use electronic meetings, but must gather in one place at least once annually.

Public bodies must announce meetings at least three days in advance and keep records, including minutes and agendas, and release those on request. You can ask the agency to put you on their notification list. Usually, meeting notices are posted on the agency web site. Agenda packets distributed to public body members at the meeting must also be distributed to members of the public who are attending, except exempt materials.

Meetings can be closed, but the public body must call an open meeting first, then follow elaborate procedures explaining the reasons for closure.

When you need further good information, there are at least three genuine experts you can call.

In 1996, Virginia news organizations supported the creation of the Virginia Council on Open Government (“VCOG”), designed to keep after agencies that are not following the FOIA appropriately. The Executive Director VCOG is Megan Rhyne, quoted above, and is one of a handful of genuine experts, at 540-353-8264, in Williamsburg.

You can also call Maria Everette, Executive Director of the Virginia FOIA Council or Alan Gernhardt, staff attorney, both experts, both at  (804) 225-3056 in Richmond. The Council and VCOG will give you information about FOIA from opposite points of view, so pick the answer you like the best and go with it.

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