FOIA Enforcement Information

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FOIA is Different

• If you’ve ever been involved in a regular civil lawsuit, like a contract dispute or a personal injury case, you know they can be slow and expensive. The procedures are dense, and having an attorney by your side is usually essential. FOIA is not like that.
• FOIA gives people a choice. If they suspect a violation of FOIA’s records or meetings provisions, they can file a case against the governmental body in general district court without an attorney. Or, they can take the case into circuit court, though we would recommend having an attorney for that.
• One of the biggest differences is the “burden of proof.” Usually, the plaintiff (you) has to prove that the law is on your side. Under Virginia’s FOIA, you will still need to describe how you think the public body violated FOIA or otherwise got it wrong, but the law also says that it’s ultimately up to the government body to prove that an exemption applied or the correct procedure was followed. Here’s what section 2.2-3713(E) says:
  • “In any action to enforce the provisions of this chapter, the public body shall bear the burden of proof to establish an exclusion by a preponderance of the evidence. No court shall be required to accord any weight to the determination of a public body as to whether an exclusion applies. Any failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter.”
• Another difference is that in a normal lawsuit, it can take months before you ever get in front of a judge. Under Section 2.2-3713(C), your case is supposed to be heard within 7 days because the law recognizes that information often has an expiration date, and delay shouldn’t be added on top of denying you access to records or meetings you’re entitled to see.
• If you win, you may be able to get your costs paid for by the government, including your attorney’s fees, if you’ve used one. But here’s another place where FOIA is different. In most cases, if the government wins, it could ask you to pay for their costs, but not under FOIA. If you lose, you do not risk having to pay for the government’s attorney or anything else.
• When it comes to explaining how and why FOIA is different, the Virginia Supreme Court said it best in a 2005 case called Cartwright v. Commonwealth Transportation Commission:
  • “The provisions of Code § 2.2-3713 significantly distinguish the right to mandamus it provides from the common law right to mandamus. By granting concurrent jurisdiction to the circuit and general district courts, expediting the proceedings, providing for an award of costs and attorneys’ fees, and shifting the burden of proof to the public body, the General Assembly has evinced an intent to provide mandamus relief under Code § 2.2-3713(A) different from that of common law mandamus. These distinctions are entirely consistent with the express purpose of the FOIA and manifestly facilitate access to appropriate governmental records.”

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Possible Remedies

FOIA provides two main remedies: A writ of mandamus (records) or an injunction (meetings).

• WRIT OF MANDAMUS — A writ of mandamus is essentially a court order directing a government employee or official to perform a certain action. In the FOIA context, that usually means telling the governmental body to follow the correct procedures, to turn over certain records, remove redactions or to not charge so much for the records that have been provided.
• INJUNCTION — An injunction is essentially a court order telling a government employee or official to stop doing something. In the FOIA context, that usually means stop giving improper notice of your meetings, don’t hold a closed meeting to talk about that topic, or take a public vote on that matter.

Sometimes people ask for additional remedies like FOIA training or an apology. These would fall into the category of it’s OK to ask, but FOIA itself does not offer what are known as “equitable remedies.”.,l

Once you’ve won your case, you can then ask the judge to impose a “civil penalty.” If the judge determines a government employee or official acted “willfully” and “knowingly” when denying you access to records, improperly closing a meeting or ignoring the related procedures, section 2.2-3714(A) says that a judge can impose a penalty of between $500 and $2,000. The penalty is supposed to be paid by the individual, not the public body, and the money goes into the State Literary Fund, not to you.

There are parts of section 2.2-3714 that talk about additional penalties for certain actions (destroying a public record to avoid your FOIA request, or improperly certifying a closed meeting), but to our knowledge, they have not been tested in court, as they still seem to depend on first finding some other violation of FOIA.

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The Form

The DC-495 is a form to file in a general district court to enforce your FOIA rights. It is a fill-in-the-blank form that asks for the basic facts and why you think those facts add up to a violation. The link takes you to a page on our website, where you will also find the court’s instructions with additional information on what each section is asking.

Here is a (totally made-up) sample:

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Basic How-To

• Determine the appropriate court. For cases against a local public body, school district or official, your case should be filed in the general district court where that public body sits (e.g., a petition against Charlottesville Public Schools would be filed in Charlottesville General District Court. For a case against a state agency, you should file either in the general district court where you live or in the Richmond General District Court. Complaints against regional public bodies should be filed in the general district court of the locality where the body’s principal business office is. See section 2.2-3713(A).
• Download the form (DC-495), either from VCOG’s website or directly from the court system’s website.
• Fill out the form as best as you can. It doesn’t have to be perfect, and general district court judges are familiar with individuals coming into court without attorneys. They are typically helpful and forgiving of missteps.
  • PRO TIP: Make it as simple and as straightforward as possible. You don’t want to confuse the judge by muddying the waters with unnecessary details, commentary or personal comments.
• Send a copy to the party you’re complaining about. (1) FOIA says that you need to give the governmental body a copy of your filled-out form. The statute doesn’t require that you ask the sheriff or a third party to “serve” the governmental body, but you can do so if you like. (2) For an alleged violation of the records section, if you want to get an expedited (quicker) hearing, you need to give the governmental body a copy three days before you take your form to the court for filing. However, there’s no such requirement for an alleged violation of the rules governing meetings. See section 2.2-3713(C).
  • PRO TIP: Give notice of at least three days for either an alleged records or meetings violation, just to be on the safe side. Also, if/when possible, get a receipt or some sort of proof that shows that the government got a copy of your form, e.g., a photo of you dropping it off in-person, a certified mail receipt, a reply email confirming receipt or something akin to an Outlook delivery receipt
• Take your form to the clerk’s office for the general district court. Tell them you want to file your court form and get a hearing date set. Be aware that the clerk may not have seen one of these FOIA forms before, so you might want to take the instructions with you. For instance, the clerk might think that you’re supposed to have a notary sign the petition, but the instructions explain that the clerk can acknowledge the filing. The instructions also state which other spaces on the form the clerk is supposed to fill out. You will have to pay a filing fee, and even though FOIA does not require service of process on the government through the sheriff’s office, some people choose to do that anyway, which will add on a few extra dollars. It won’t likely cost more than $100.
• Ask the clerk when you can expect your hearing. FOIA says you’re entitled to a hearing within 7 days if you’ve given the other side the required three-day notice. The clerk should set this hearing time, and should issue what’s known as a DC-430: Summons for Hearing to the governmental body letting them know about the date and time of the hearing. Ask the clerk what kind of confirmation there is that the government got the DC-430. See General District Court Benchbook, page 207.
• Present your case at the hearing. We understand that if you’ve made the big step to go to court that you are likely mad and frustrated.  But remember that the judge doesn’t know you and isn’t going to just assume that the public body is out to get you. It is important to stay calm and to explain your position as simply and directly as possible.
• Be prepared. Different judges have different ways of holding hearings. And some may be pressed for time. Be prepared, and have materials to back up you case ready to go if asked. For example:
  • Print-outs or screenshots of communications between you and the governmental body
  • A copy of FOIA, with the applicable sections excerpted or highlighted
  • Copies of relevant court cases or opinions from the attorney general’s office of the FOIA Council (see below). Remember: AG and FOIA Council opinions are not binding, but they are authoritative, and judges, including those at the Supreme Court of Virginia, often give both of them both great weight.
• Ask the judge to take notice of FOIA’s policy statement. FOIA includes a statement that explains the purpose of FOIA (to ensure “the people of the Commonwealth ready access to public records … and free entry to meetings of public bodies wherein the business of the people is being conducted.”), the policy underlying FOIA (“The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government,” and way it is to be interpreted: (“The provisions of the chapter shall be liberally construed to promote an increased aweness by all persons of governmental activities.”). This policy statement is like the glasses the judge should wear when evaluating the case. See section 2.2-3700.
• If you win. You can ask the judge to have the government pay for your costs. And, if appropriate, you can ask the judge to impose civil penalties (discussed above). You will have to have evidence that the governmental body acted “willfully and knowingly.”
• If you lose. The governmental body cannot ask for you to reimburse its costs.
• Appeal. Whichever party loses a district court case has the right to ask a circuit court to take a brand new look at it. Check with the clerk of court to find out how much time you or the government has to make that choice.

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VCOG’s Opinions Archive

VCOG maintains an archive of opinions issued by Virginia courts of all levels, as well as opinions issued by various offices of the attorney general and every formal opinion issued by the FOIA Council. No doubt, some opinions will be missing, but it’s the most comprehensive — FREE — library of court opinions anywhere. You can search by type (court, AG, FOIA Council), but meetings or records, by topic or by keyword. Start your search here.