The Rights of Requesters and the Responsibilities of the Governor's Office
under the Virginia Freedom of Information Act
The Virginia Freedom of Information Act (FOIA), located § 2.2-3700 et.
seq. of the Code of Virginia, ensures citizens of the Commonwealth
and representatives of the media access to public records covered
by the act that are held by public bodies, public officials, and
public employees.
A public record is any writing or recording – regardless of whether it
is a paper record, an electronic file, an audio or video recording,
or any other format – that is prepared or owned by, or in the possession
of a public body or its officers, employees or agents in the transaction
of public business. All public records are presumed to be open,
but may be withheld if a specific, statutory exemption applies.
The policy of FOIA states that the purpose of FOIA is to promote an increased
awareness by all persons of governmental activities. In furthering
this policy, FOIA requires that the law be interpreted liberally
in favor of access, and that any exemption allowing public records to be
withheld must be interpreted narrowly.
Your FOIA rights
You have the right to request to inspect or receive copies
of public records, or both.
You have the right to request that any charges for the requested
records be estimated in advance.
If you believe that your FOIA rights have been violated, you
may file a petition in district or circuit court to compel compliance
with FOIA.
Making a request for records from the Governor's Office
You may request records by U.S. Mail, fax, e-mail, in person,
or over the phone. FOIA does not require that your request be
in writing, nor do you need to specifically state that you are
requesting records under FOIA.
From a practical perspective, it may be helpful to both
you and the person receiving your request to put your request
in writing. This allows you to create a record of your
request. It also gives us a clear statement of what records
you are requesting, so that there is no misunderstanding
over a verbal request. However, we cannot refuse to respond
to your FOIA request if you elect to not put it in writing.
Your request must identify the records you are seeking with "reasonable
specificity." This is a common-sense standard. It does not
refer to or limit the volume or number of records that you are
requesting; instead, it requires that you be specific enough
so that we can identify and locate the records that you are seeking.
Your request must ask for existing records or documents. FOIA
gives you a right to inspect or copy records; it does not apply
to a situation where you are asking general questions about the
work of the Governor's Office, nor does it require the Governor's
Office to create a record that does not exist.
You may choose to receive electronic records in any format
used by the Governor's Office in the regular course of business.
For example, if you are requesting records maintained
in an Excel database, you may elect to receive those records
electronically, via e-mail or on a computer disk, or to
receive a printed copy of those records
If we have questions about your request, please cooperate with
staff's efforts to clarify the type of records that you are seeking,
or to attempt to reach a reasonable agreement about a response
to a large request. Making a FOIA request is not an adversarial
process, but we may need to discuss your request with you to
ensure that we understand what records you are seeking.
To request records or to ask questions about records obtained from the
Governor's Office, you may contact the Counselor to the Governor.
He can be reached at (804) 786-2211.
In addition, the Freedom of Information Advisory Council is available to
answer any questions you may have about FOIA. The Council may be contacted
by e-mail at foiacouncil@leg.state.va.us,
or by phone at (804) 225-3056 or [toll free] 1-866-448-4100.
Our responsibilities in responding to your request
The Governor's Office must respond to your request within five
working days of receiving it. "Day One" is considered
the day after your request is received. The five-day period does
not include weekends or holidays.
The reason behind your request for public records from the
Governor's Office is irrelevant, and we cannot ask you why you
want the records before we respond to your request. FOIA does,
however, allow the Governor's Office to ask you to provide your
name and legal address.
FOIA requires that the Governor's Office make one of the following
responses to your request within the five-day time period:
We provide you with the records that you have requested in their entirety.
We withhold all of the records that you have requested, because all of the records are subject to a specific statutory exemption. If all of the records are being withheld, we must send you a response in writing. That writing must identify the volume and subject matter of the records being withheld, and state the specific section of the Code of Virginia that allows us to withhold the records.
We provide some of the records that you have requested, but withhold other records. We cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, we may redact the portion of the record that may be withheld, and must provide you with the remainder of the record. We must provide you with a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
We inform you in writing that the requested records cannot be found or do not exist (we do not have the records you want). However, if we know that another public body has the requested records, we must include contact information for the other public body in our response to you.
If it is practically impossible for [the Department] to respond to your request within the five-day period, we must state this in writing, explaining the conditions that make the response impossible. This will allow us seven additional working days to respond to your request, giving us a total of 12 working days to respond to your request.
If you make a request for a very large number of records, and we feel that we cannot provide the records to you within 12 working days without disrupting our other organizational responsibilities, we may petition the court for additional time to respond to your request. However, FOIA requires that we make a reasonable effort to reach an agreement with you concerning the production or the records before we go to court to ask for more time.
Costs
You may have to pay for the records that you request from the
Governor's Office. FOIA allows us to charge for the actual costs
of responding to FOIA requests. This would include items like
staff time spent searching for the requested records, copying
costs, or any other costs directly related to supplying the requested
records. It cannot include general overhead costs.
If we estimate that it will cost more than $200 to respond
to your request, we may require you to pay a deposit, not to
exceed the amount of the estimate, before proceeding with your
request. The five days that we have to respond to your request
does not include the time between when we ask for a deposit and
when you respond.
You may request that we estimate in advance the charges for
supplying the records that you have requested. This will allow
you to know about any costs upfront, or give you the opportunity
to modify your request in an attempt to lower the estimated costs.
If you owe us money from a previous FOIA request that has remained
unpaid for more than 30 days, the Governor's Office may require
payment of the past-due bill before it will respond to your new
FOIA request.
Commonly used exemptions
The Code of Virginia allows any public body to withhold certain
records from public disclosure. These exemptions may be found
in Title 2.2, Chapter 37. For example, the Governor's Office commonly withholds records
subject to the following exemptions:
Personnel records (§ 2.2-3705.1 (1) of the Code of Virginia)
Records subject to attorney-client privilege (§ 2.2-3705.1
(2)) or attorney work product (§ 2.2-3705.1 (3))
Vendor proprietary information (§ 2.2-3705.1 (6))
Records relating to the negotiation and award of a contract,
prior to a contract being awarded (§ 2.2-3705.1 (12))
Governor's working papers and correspondence (2.2-3705.7 (2)).
