Virginia’s Freedom of Information Act (FOIA) is a law that requires public bodies to release public documents to Virginia citizens upon request.
This law covers a variety of information, from policy statements to criminal incident reports.
However, Virginia’s FOIA also exempts government agencies from providing those documents in some specific circumstances.
For that reason, it’s best to know exactly what you’re asking for before you file a FOIA request.
In this article, we’ll go over the basics of filing a FOIA request in Virginia.
We’ll also talk about your right to attend public meetings as a Virginia resident.
Note that, in this article, we will discuss Virginia’s FOIA.
There is also a federal Freedom of Information Act that works differently from Virginia’s legislation.
If you need to request documentation from a federal agency, you’ll want to read up on that act instead.
What Information Does the Virginia FOIA Apply To?
The Virginia Freedom of Information Act applies to the documents and meetings of any public body in the state of Virginia.
“Public body” is an expansive term applying to any group that supports itself primarily through public funds.
It includes, but is not limited to:
- State and local courts
- State and local government offices, departments, bureaus, etc
- City councils and county boards of supervisors
- Law enforcement agencies
- School boards
- Public hospitals and medical facilities
- Care services organized under the Virginia Retirement System
The Virginia FOIA does not apply to private businesses, unless those businesses are supported primarily through public funds.
What kinds of information are public bodies required to release under FOIA?
Normally, a public body must release any sort of written or electronic record upon request.
In certain cases, the public body may choose not to release the information because of privacy concerns and a number of other reasons.
They will, however, still provide you with an explanation of why they chose not to share that information.
It would be impossible to list every type of information that you can receive from a FOIA request.
Here’s a small selection of common reasons to petition under Virginia’s FOIA:
- General descriptions of felonies, including the nature of the crime and the location in which it took place. However, the police may choose not to release this information if it would endanger an ongoing investigation.
- Names and photographs of adult felons.
- Calls to 911 or emergency services, except where those calls contain exempted information.
- Criminal records of an individual, if you have that individual’s consent.
You can also ask for descriptions of organizational policies, including:
- Minutes of public or legislative meetings
- Spending reports for state and local organizations
- State census records
- The positions and yearly salaries of public employees (for salaries above $10,000 per year)
What counts as a “public record” in Virginia?
Virginia’s FOIA has a very expansive definition of “public records.”
Essentially, it encompasses just about any kind of information compiled by a public body.
This includes both written and electronically stored information.
The definition even includes purely graphical information, such as photographs or maps.
However, the information must already exist to be a part of the public record.
Under Virginia’s FOIA, you can’t compel a public body to create new documents.
Exceptions to Virginia’s Freedom of Information Act
As mentioned above, public bodies are exempt from providing certain types of information.
However, these exemptions don’t necessarily bar you from obtaining certain information.
Instead, think of an exemption as a warning that you might not receive the complete documents you are looking for.
There are over 100 individual exemptions in the Virginia FOIA.
Just like the federal FOIA, Virginia’s Act prohibits agencies from disclosing an individual’s personal information.
This is an expansive term that includes any form of information that could identify an individual.
Examples include an individual’s social security number, home address, or driver’s license number.
Other than general descriptions of felony crimes, police are not required to release any information regarding ongoing criminal investigations.
This means that they may refuse FOIA requests for:
- Police files related to ongoing investigations.
- Records relating to individuals imprisoned in Virginia.
- Information relating to misdemeanor investigations.
- Information relating to neighborhood watch programs.
Additionally, the police are explicitly forbidden from disclosing the personal information of witnesses or victims against their will.
In the case of victims of sexual or family abuse, the police may not disclose any identifying information regarding the victim whatsoever.
Finally, the police may not release any information regarding individuals who gave testimony under the condition of their anonymity.
In Virginia, employers and other non-governmental organizations can request to see an individual’s criminal background.
However, they must obtain the express, written consent of that individual first.
The only exception to this rule is for crimes listed on Virginia’s sex offender and crimes against minors registry, which is available online.
Virginia educational institutions may not disclose a student’s academic records to individuals other than the student and their legal guardians.
A student may waive this protection in writing if they wish.
If the student is under 18, his or her parents may request exclusive access.
In that case, the student will not have access to their academic records until they turn 18.
All Virginia public bodies are prohibited from disclosing individual health records, except under very specific circumstances.
However, public bodies may release studies, investigations, and statistical analyses upon request.
If they do so, the public body must redact any information identifying specific individuals.
Government organizations are prohibited from disclosing identifying information about some employees.
However, you may request identifying information about employees with salaries above $10,000 per year.
Recent Birth, Death, Marriage, and Divorce Records
The Virginia Department of Health will only provide recent birth, death, marriage, and divorce records to members of the subject’s immediate family.
The VDH considers birth records recent if the birth occurred within the past 100 years.
However, death, marriage, and divorce records are only considered recent for 25 years.
After these cutoffs, the VDH makes the records available online through a partnership with ancestry.com.
However, the law does authorize the DMV to release these records to law enforcement, insurance providers, and other similar organizations.
The same is true for the crash reports collected after Virginia traffic accidents.
How Do I Make a FOIA Request in Virginia?
To make a FOIA request, all you need to do is contact the public body in possession of the records you need.
You must employ “reasonable specificity” in describing which record you are requesting.
However, there is no limit on the overall number of records you may request.
Under Virginia’s current FOIA, you do not need to explain the reason for your request.
Technically, you also do not need to submit your request in writing.
However, doing so will improve your chances of receiving the correct records in a reasonable time-frame.
Likewise, it’s a good idea to include your name and legal address with the request, to verify that you are a Virginia citizen.
For convenience, the National Freedom of Information Coalition has created a sample template for Virginia that can be found on their website.
Virginia further permits organizations to charge a reasonable processing fee for FOIA requests.
This fee is based on the labor involved in making the documents available, but you can request an estimate in advance.
If the public body estimates a cost of $200 or more, they may require a deposit before releasing the documents.
Public bodies may deny your FOIA request on the basis of outstanding fees from previous requests.
When will I receive my information?
After you make a FOIA request, you should hear back from the public body within five business days.
In the event that it takes longer than five days to prepare your document, the public body must provide a written explanation.
If after twelve business days the court has neither released your document nor petitioned the court for additional time, it might be time to contact an attorney.
Having an attorney apply pressure to the public body can help speed up the process.
Should the public body deny your request, they must provide a written explanation with the relevant exemption.
The same is true if the public body can provide only some of the documents you requested.
Keep in mind that a public body cannot deny your request just because there is some exempted information contained within the requested documents.
Instead, the public body must provide you with a redacted copy of the record.
How will I receive my information?
Virginia’s FOIA says that citizens and public bodies must attempt to come to a reasonable agreement over the disbursement of documents.
This means that you can request paper or electronic copies of most public documents and expect to receive them in that form.
However, there are some cases, such as felony descriptions, where the law deems a verbal explanation sufficient.
Attending a Public Meeting
In addition to allowing you to request public documents, Virginia’s FOIA guarantees your right to attend public meetings.
In this context, a “public meeting” must involve three or more members of a public body.
To be a public meeting, this gathering must meet for the purpose of conducting public business.
Under these definitions, city halls, school board meetings, and other local government functions are all public meetings.
However, meetings organized by members of the citizenry are not necessarily public meetings, even if members of public bodies attend.
Likewise, purely social or ceremonial gatherings are not public meetings. Finally, gatherings of employees (rather than members) of public bodies are not public meetings.
Electronic communications can be public meetings, but only if there is simultaneous communication.
For this reason, teleconferences can be public meetings, but emails are generally not.
Right to Notice
According to Virginia law, public bodies must provide notice of meetings three business days before they occur.
This means doing four things:
- Listing the date of the meeting on the public body’s official website, if applicable.
- Placing a notice in a prominent public location.
- Placing a notice at the office of the chief clerk or administrator of the body.
- Sending a notice to any resident who requests one.
These notices must contain the time, date, and location of the meeting.
However, unlike many states, Virginia does not require its public notices to include subjects or topics.
Right to Minutes
At a public meeting, the public body must either record the meeting in its entirety or take minutes.
These recordings or minutes become public records accessible by citizens upon request.
Attendees may also take their own notes or make their own recordings, as long as they aren’t disruptive.
In some circumstances, a public body may elect to have a closed meeting instead of a public meeting.
Most of the time, public bodies do so when holding a public meeting would violate the subject’s right to privacy.
For example, discussions concerning honorary degrees or awards are private, as are meetings where students are disciplined.
In order to hold a closed meeting, the public body must explain the purpose of that session at an open meeting.
Any resolutions, votes, or policies made during the closed session do not become official until the body enumerates them publicly.
Dealing with FOIA Violations
In most cases, FOIA violations are unintentional, and can be rectified by contacting the public body in writing.
If this approach fails, however, it may be time to contact a lawyer.
Although filing a FOIA lawsuit is a lot of work, the state will refund your legal fees if you win.
The idea behind laws like Virginia’s Freedom of Information Act is to create an informed, educated public.
However, that can only happen when the laws are enforced.
For that reason, it’s important to understand and insist on your rights when filing a FOIA request.
Most importantly, you should never be afraid to contact legal representation if a public body violates your FOIA rights.