Failure to respond within five working days without invoking an extension is deemed a denial and a violation of FOIA as provided by subsection E of § 2.2-3704 of the Code of Virginia. As we have repeatedly affirmed, this office is not a trier of fact and, as such, factual disputes are not within our purview. When a public body does not possess the public records that a requester seeks and knows that those records are held by another public body, it must notify the requester of this fact and provide contact information for the other public body as required by subdivision B 3 of § 2.2-3704.
AO-12-26
October 21, 2026
Mr. Buddy Kirby
Via USPS Mail
The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter dated April 11, 2026.
Questions Presented
- Whether Hanover County violated FOIA by failing to provide any response to my March 31, 2026, request.
- Whether a county attorney may lawfully instruct a FOIA officer not to respond to a valid FOIA request.
- Whether repeated refusals to respond constitute a pattern or practice of FOIA non-compliance under § 2.2-3713 of the Code of Virginia.
- Whether detailed accounting, consulting, and legal fee records of a Community Development Authority are public records subject to mandatory disclosure.
Statement of Facts
In your letter to this office dated April 11, 2026, you included the following attachments:
- Your March 31, 2026, FOIA request
- Your April 10, 2026, follow-up email
- Correspondence from the Hanover County Attorney to you dated March 23, 2021, and September 10, 2021
As the correspondence from 2021 does not relate to the specific FOIA request at issue here, we acknowledge its inclusion in your letter but will not discuss it further.
Regarding your March 31, 2026, letter, it appears that you made a FOIA request to Hanover County (County) in which you asked for the “details, including payees and amounts” corresponding to a specific line item of the Bell Creek Community Development Authority (CDA) entitled “Accounting, consulting, and legal fees.” That line item totaled $49,957 for fiscal year 2024 and $55,848 for fiscal year 2025. After receiving no response from the County, you sent a follow-up email on April 10, 2026, requesting a response, which you state was not acknowledged. You then sought the opinion of this office on four separate questions, which will be examined below.
Applicable Law and Discussion
- Whether Hanover County violated FOIA by failing to provide any response to my March 31, 2026, request.
Advisory opinions from this office are based on the facts presented, and you stated that the County did not respond. Pursuant to subsection B of § 2.2-3704 of the Code of Virginia, a public body must provide one of five required responses, summarized as follows: (i) provide the records; (ii) withhold the records entirely; (iii) provide the records in part and withhold them in part; (iv) state that the records cannot be found or do not exist; or (v) invoke additional time to respond. Your request for records was reasonably specific; you invoked the privileges of FOIA when you made your request, and so, the public body should have responded within five working days as required by subsection B of § 2.2-3704. Subsection E of the same section provides that “[f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter.” Given the facts you have presented, and following the plain language of § 2.2-3704, yes, it appears that the County would be in violation for failing to respond.
- Whether a county attorney may lawfully instruct a FOIA officer not to respond to a valid FOIA request.
No, a county attorney may not lawfully instruct a FOIA officer not to respond to a valid FOIA request because such action would violate both the letter and spirit of FOIA. FOIA policy, as stated in subsection B of § 2.2-3700 of the Code of Virginia, is to ensure “the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees.” Subsection B also includes the following: “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.” The policy statement further provides that “[a]ll public records and meetings shall be presumed open, unless an exemption is properly invoked” and that “no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.” The policy is implemented by the procedure stated in subsection A of § 2.2-3704 (“Except as otherwise specifically provided by law, all public records shall be open…”) and the redaction rule expressed in § 2.2-3704.01:
No provision of this chapter is intended, nor shall it be construed or applied, to authorize a public body to withhold a public record in its entirety on the grounds that some portion of the public record is excluded from disclosure by this chapter or by any other provision of law. A public record may be withheld from disclosure in its entirety only to the extent that an exclusion from disclosure under this chapter or other provision of law applies to the entire content of the public record. Otherwise, only those portions of the public record containing information subject to an exclusion under this chapter or other provision of law may be withheld, and all portions of the public record that are not so excluded shall be disclosed.
As previously stated, subsection E of § 2.2-3704 provides that a failure to respond to a request is deemed to be a denial of the request and a violation of FOIA. FOIA does not have any provision that would allow a public body simply not to respond to a request unless the requester owes an outstanding balance for prior requests. In that situation, subsection I of § 2.2-3704 provides that “[b]efore processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing.” Thus, if a county attorney were to instruct a FOIA officer not to respond to a FOIA request that meets the requirements of subsection B of § 2.2-3704, namely that a request “identify the requested records with reasonable specificity,” that instruction would violate the policy and procedural requirements of FOIA, except in the situation where the requester owes an outstanding balance for prior requests.
- Whether repeated refusals to respond constitute a pattern or practice of FOIA non-compliance under § 2.2-3713 of the Code of Virginia.
As we have repeatedly affirmed, this office is not a trier of fact.1 Moreover, our enabling statute does not grant this office investigatory authority.2 For those reasons, this office may address whether alleged acts would violate FOIA under the facts presented, but it cannot investigate or adjudicate whether disputed events collectively establish a pattern of non-compliance. That fact-intensive determination is properly reserved for a court.3 However, note that the language of subsection D of § 2.2-3713 of the Code of Virginia states “[a] single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein.” Given that provision, a court may issue an appropriate order whenever it finds a violation has occurred, even if a pattern or practice of violations is not demonstrated. As stated by the Supreme Court of Virginia, “once a violation of VFOIA has been established, whether an injunction is warranted is a question committed to the trial court’s discretion.”4
Thus, if you believe that your FOIA rights have been violated, the statutory remedy provided in § 2.2-3713 is to file a petition for mandamus or injunction in either general district or circuit court (petitioner’s choice). The courts publish a sample form and instructions for use in general district court, which we have linked on the Forms and Sample Letters webpage. Please do not hesitate to contact us if you have any questions or need additional information, but please be advised, as with any other type of court proceeding, you may wish to consult your own attorney before deciding whether to file a petition.
- Whether detailed accounting, consulting, and legal fee records of a Community Development Authority are public records subject to mandatory disclosure.
The definition of “public record” in § 2.2-3701 of the Code of Virginia includes all types of records “however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business.” Therefore, the answer to this question is yes, if these Community Development Authority (CDA) records meet the definition of “public records” (i.e., they exist and are prepared or owned by, or in the possession of, the CDA in the transaction of public business). However, it appears that you asked for the CDA records from Hanover County, which may not actually possess the records you seek (keeping in mind that the CDA and the County are separate political subdivisions and public bodies).
As stated above, your original FOIA request mentioned specific line items in the CDA’s financial statements. Your FOIA request asked the County to provide supporting records detailing the “payees and amounts” that “make up” the line items from those financial statements. More specifically, the request read as follows:
“Ms. Randolph, financial statements for the Bell Creek Community Development Authority for fy 2024 and 2025. In the statement of Revenues, Expenses, and Changes in Net Position, a line item “Accounting, consulting and legal fees” Amounts for 2024 $49,957 and for 2025, $55,848. Please provide the details, including payee and amounts that make up the above numbers. Provide an estimate of my costs.”
In this case, the correct response from the County, if it does not in fact have the requested financial records, would have been that they did not possess the records and to direct you to contact the CDA instead.
Conclusion
If the County did not respond to your initial FOIA request as you have asserted, that failure to respond would be deemed a denial of your request and a violation of FOIA as provided by subsection E of § 2.2-3704 of the Code of Virginia. It is for a court to decide the appropriate remedy for the deficiency of conduct you have outlined. When a public body does not possess the public records that a requester seeks and knows that those records are held by another public body, it must notify the requester of this fact and provide contact information for the other public body as required by subdivision B 3 of § 2.2-3704.
Sincerely,
Matteo Murrelle
Staff Attorney
Alan Gernhardt, Esq.
Executive Director
1See Freedom of Information Advisory Opinions 04 (2024), 01 (2023), 01 (2022), 01 (2021), 05 (2017), 03 (2016), 04 (2015), 02 (2015), 02 (2013), and 09 (2005).
2See Va. Code Ann. § 30-179.
3See Freedom of Information Advisory Opinions 02 (2013), 01 (2018), 01 (2020).
4Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188 at 210, 886 S.E.2d 244 at 256-257 (Va. 2023).