The Virginia Freedom of Information Act, or FOIA, located § 2.2-3700 et. seq. of the Code of Virginia, guarantees access by Virginia residents and members of the media to public records.
In general, a public record is any writing or recording created or maintained by a public body in the transaction of public business. All public records are presumed to be open, and may be withheld only when a specific, statutory exemption applies. FOIA’s purpose is to increase the transparency of government. Therefore, FOIA laws should be interpreted in favor of access. A withholding exemption should be interpreted narrowly.
Your FOIA Rights
- You have the right to request to inspect or receive copies of public records.
- 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 FOIA Request for records from VDEM
- 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 the right to inspect or copy records; it does not apply to asking general questions about the work of VDEM, nor does it require VDEM to create a record that does not exist.
- You may choose to receive electronic records in any format used by VDEM 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 the 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.
VDEM’s responsibilities in responding to your request
- VDEM 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.
- We cannot ask you why you want the records. However, FOIA does allow VDEM to ask you to provide your name and legal address.
- FOIA requires that VDEM 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.
- If it is practically impossible for VDEM 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.
- We inform you in writing that the requested records cannot be found or do not exist; 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 you make a request for a very large number of records, and we feel that we cannot provide the records to you within 12 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.
- You may have to pay for the records that you request from VDEM. 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, VDEM may require payment of the past-due bill before it will respond to your new FOIA request.
Commonly used exemptions
VDEM 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)).
For a listing of additional exemptions that may be used by VDEM, please refer to the FOIA Council’s website.