FOIA Requests

Rights & Responsibilities

The Rights of Requesters and the Responsibilities of The Office of the Governor under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (“FOIA”), located in § 2.2-3700 et seq. of the Code of Virginia, guarantees citizens of the Commonwealth and representatives of the media access to public records 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, and may only 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.

Making a Request for Public Records from the Office of the Governor

• You may request public records from the Office of the Governor (“the Office”) through the Governor’s Office NextRequest Portal, U.S. Mail, fax, email, in person, or over the phone. FOIA does not require that you use any particular method to convey your request.  FOIA also does not require that your request be in writing, nor do you need to state that you are requesting records pursuant to 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 not to 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 Office, nor does it require the Office to create a record that does not exist.
• You may choose to receive electronic records in any format used by the 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 email, on a computer disk or flash drive, 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.

The Office’s Responsibilities in Responding to Your Request

• The 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, holidays, or other days when the Office is closed for business.
• The reason behind your request for public records from the Office is irrelevant, and you do not have to state why you want the records before we respond to your request. FOIA does, however, allow the Office to require you to provide your name and legal address.
• FOIA requires that the Office make one of the following responses to your request within the five-day time period:
  1. We provide you with the records that you have requested in their entirety.
  2. 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.
  3. 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.
  4. We inform you in writing that the requested records cannot be found or do not exist (we do not have the records you requested). 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.
  5. If it is practically impossible for the Office 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 an additional seven working days to respond to your request, giving us a total of twelve working days to respond to your request.  In the case of criminal investigative files requested pursuant to § 2.2-3706.1 of the Code of Virginia, we are allowed an additional 60 working days to respond to your request, giving us a total of 65 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 twelve 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 of the records before we go to court to ask for more time.

Charges

• A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body.  Any duplicating fee charged by a public body shall not exceed the actual cost of duplication.  Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records as set forth in subsection F of § 2.2-3704 of the Code of Virginia.
• You may have to pay for the records that you request from the 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.  Current fees charged are calculated based on hourly rates and do not 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.  The five days that we have to respond to your request does not include the time between when we send you the estimate and when you respond.  If you do not respond within thirty days, then your request will be deemed to be withdrawn.
• If you owe us money from a previous FOIA request that has remained unpaid for more than thirty days, the Office may require payment of the past-due bill before it will respond to your new FOIA request.
• The Office reserves the right to charge for requests that are unusually voluminous, time-consuming, or excessive.

Exemptions

Virginia law allows the Office to withhold certain records from public disclosure.  The Office commonly withholds records pursuant to the following exemptions (others may also apply):

• Personnel information (§ 2.2‑3705.1(1))
• Attorney-client privilege (§ 2.2‑3705.1(2))
• Attorney work product (§ 2.2‑3705.1(3))
• Vendor proprietary information (§ 2.2‑3705.1(6))
• Information relating to the negotiation and award of a contract (§ 2.2‑3705.1(12))
• Working papers and correspondence of the Office of the Governor (§ 2.2‑3705.7(2))