More and more often, government attorneys are selling a version of FOIA litigation that isn’t supported by the law’s plain terms
I’m not even going to try to flower this up. No clever turn of phrase or perfect metaphor. This just needs to be direct and to the point.
SERVICE OF PROCESS IS NOT REQUIRED IN FOIA CASES
FOIA is different. It is a law for the people. All the people. It guarantees their rights to ask for and receive records, and to attend and observe public meetings. It applies to Virginia state agencies and all regional and local governments.
There aren’t a whole lot of laws like it. It imposes duties on the government and then it gives citizens the tools to enforce compliance with those duties on their own.
FOIA isn’t contract law or tort law or constitutional law. It’s sui generis, of it’s own kind.
Right there in FOIA, it says, “Any person . . . denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition of mandamus or injunction.”
Any person. Rights and privileges. Enforce.
This is the people’s law. It anticipates that regular people are going to attempt to enforce their rights, with or without an attorney. That’s why the law says the petition can be filed in general district court, where it is not uncommon for citizens to proceed on their own. Furthermore, a do-it-yourself form was developed to make it easy to initiate the process.
Generally speaking, a person seeking a writ of mandamus or injunction gives a copy of the form (or the petition, if in circuit court) to the governmental body and pays the clerk a filing fee. A hearing is supposed to be held within seven days. That bis is also right there in FOIA (2.2-3713(C)).
If the dispute is about an exemption, it’s up to the government to prove that the exemption was correctly applied. If the citizen wins, he or she can ask the judge to have the government reimburse costs. If the government wins, that’s it. There is nothing in FOIA that allows the government to ask to be reimbursed for costs.
And yet…
In the past several months I’ve heard from regular people and reporters who have gone to court and had their cases delayed and even dismissed for some sort of procedural failure, or who have been saddled with burdens that are nowhere in FOIA’s terms.
Government attorneys have made arguments that these people have to:
- File a bill of particulars
- Refile naming a different government defendant
- Refile using the official title of the government employee
- Answer interrogatories or otherwise comply with discovery
- Pay the government’s costs and attorney’s fees
- Serve the petition on the registered agent
And here’s where we started: SERVICE OF PROCESS IS NOT REQUIRED IN FOIA CASES.
Here’s what 2.2-3713(C) says:
C. Notwithstanding the provisions of § 8.01-644, the petition for mandamus or injunction shall be heard within seven days of the date when the same is made, provided the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing. However, if the petition or the affidavit supporting the petition for mandamus or injunction alleges violations of the open meetings requirements of this chapter, the three-day notice to the party against whom the petition is brought shall not be required.
That section mentions § 8.01-644, and here’s what that section says:
Except as provided in § 2.2-3713, application for a writ of mandamus or a writ of prohibition shall be on petition verified by oath, after the party against whom the writ is prayed has been served with a copy of the petition and notice of the intended application a reasonable time before such application is made.
That’s some fine cross-referencing going on there!
FOIA is saying, hey, regardless of what it says in § 8.01-644, here’s what you have to do to file a petition for mandamus or injunction, including making sure the other side “has received a copy of the petition” at least three days before filing the petition with the clerk.1
Meanwhile, § 8.01-644 is saying, yeah, for most writs of mandamus, you gotta “serve” the petition, but not for FOIA cases.
Serve a copy. Receive a copy. Those are two different things. Clearly, the General Assembly knew the difference. They were linking two sections but using one phrase in one section, and a different phrase in another section. That was intentional.
I’ve been around long enough to remember when this notion of “received a copy” was debated in the FOIA Council and eventually added to the law. The issue arose because, before this provision was added, a parent filed a petition against the local school division at the start of Christmas break. The school offices were basically closed, so no one knew that the judge had scheduled the hearing to be within seven days (more on that in a moment), also during Christmas break. Two bills were introduced aimed at fixing the problem: One bill used the word “receive” and the other bill used the word “serve.” They were both sent to the FOIA Council for study, and here’s how the FOIA Council’s 2010 annual report summarizes the discussion.
Mr. Wiley noted that the use of the word “served” means by the sheriff or other process server and that unnecessarily delays the process. Mr. Wiley suggested that notice be given to the public body, but that the length of time before the FOIA suit may be filed be specified.
Mr. Wiley is Roger Wiley, a career government lawyer who served on the FOIA Council as the local government representative for a decade.
SERVICE OF PROCESS IS NOT REQUIRED IN FOIA CASES.
And yet…
A Spotsylvania County coach made a startling discovery when his FOIA case was thrown out for lack of service by the sheriff or a process server. He noticed that the District Court Judges’ Benchbook, 2024 edition, which is basically a reference guide for the many areas of law district court judges may be called to rule on, included this sentence in the paragraph discussing notice in FOIA cases:
Providing a copy of a petition before filing is not a substitute for service of process after filing.2
That phrase seems to say that even if you’ve given the government a copy, as FOIA says, you still have to serve the petition, which is NOT what FOIA says.
The bad news is that this provision has been in the Benchbook since 2013, two years after the “receive a copy” language was enacted. The good news is that in the ensuing years, most judges apparently followed the text of FOIA instead of the Benchbook.3 It’s only recently that we’ve seen a spike in cases being dismissed for service of process issues. But it’s a dangerous trend, one that threatens the ability of ordinary citizens to enforce their rights.
And here’s one last point about the serve/receive issue. EVEN IF there was some requirement to “serve” the government, that requirement is part of the clause dealing with the 7-day hearing. That is, FOIA says the petition “shall be heard within seven days,” but only if the government has received a copy at least three days before it is filed. To me, that’s not an invitation to dismiss the case if a copy wasn’t received, only a condition that must be met before the 7-day window opens.
I may not be right about this last part, but when I read these clauses in the context of FOIA’s policy statement and the knowledge that this is a law for the people, to be enforced by the people, with or without attorneys and with or without any familiarity about legal processes, I think I am.
So, help me spread the word to judges and to government attorneys, and especially to the gutsy people out there who insist on protecting their right to access information about their governments.
SERVICE OF PROCESS IS NOT REQUIRED IN FOIA CASES. 4
1 Interestingly, the three-day lead time is only for records cases, not cases having to do with public meetings.
2 See Paragraph G on page 209 of the PDF, which is the same as page 200 in the book’s non-introductory content.
3 Somewhat disturbingly, the Benchbook also refers to the form people fill out to file in general district court as the DC-496. It’s the DC-495. On the other hand, the Benchbook directs judges to a FOIA publication by Roger Wiley, and to VCOG’s extensive archive of FOIA opinions.
4 Nothing prohibits a litigant from going the official service route if he/she chooses. It’s just not required.