Addresses the obligation of a public body to make a good faith search for requested public records and the statutory remedy of filing a petition for mandamus or injunction to remedy FOIA violations.
AO-11-26
October 21, 2026
Allen Yip
Via Electronic 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 email message of November 17, the email chain included therein, the email reply from this office dated November 19, 2025, and your follow-up email on the same date.
Dear Mr. Yip:
You have asked for an advisory opinion addressing the following question under the Virginia Freedom of Information Act (FOIA): “What are the obligations of a public body—and what recourse exists under FOIA—when FOIA requests repeatedly turn up missing, withheld, or concealed records that are later discovered through the requester’s own efforts?”
As background, you described a series of events concerning a public records request you made to Prince William County (the County) for records of certain zoning and code-enforcement actions; you also included an email chain demonstrating a series of communications between you and the County about the matter. Based on your description and the materials provided, this office initially responded that when receiving a request for public records, a public body must make a good faith search for any responsive records it has, but that in this instance it appeared there was a dispute regarding whether the public body had conducted such a search and that only the courts had the authority to decide such factual disputes. You then requested a formal advisory opinion due to broader policy concerns you identified as follows:
– If nothing is done, the practical effect is to grant the records custodian a free pass to disregard core FOIA obligations. The message sent is that even when a requester does the extraordinary work of unearthing records the agency claimed did not exist, such proven irregularities are treated as inconsequential.
– Ignoring or declining to address these situations in a formal opinion could reinforce a precedent that incomplete or demonstrably inadequate searches carry no consequences under FOIA, even when subsequent evidence proves otherwise.
– For any reasonable observer, the combination of (1) repeated omissions proven by later-discovered records, (2) refusal to engage or correct the record, and (3) continued reliance on a long-settled enforcement action, forms a pattern that undermines public confidence in both FOIA and local government transparency.
Obligation of a public body to search for and provide public records
The policy statement of FOIA, under subsection B of § 2.2-3700 of the Code of Virginia, provides that “[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute … all public records shall be available for inspection and copying upon request. All public records … shall be presumed open, unless an exemption is properly invoked.” In implementing this policy, subsection B of § 2.2-3704 of the Code of Virginia provides first that “[a] request for public records shall identify the requested records with reasonable specificity.” The subsection then sets forth five responses that a public body may make, summarized as follows: (i) provide the requested records, (ii) deny the request entirely, (iii) provide the records in part and withhold them in part, (iv) inform the requester that the records could not be found or do not exist, or (v) invoke up to seven additional work days to respond. Subsection D of the same section provides that “no public body shall be required to create a new record if the record does not already exist.” Additionally, § 2.2-3704.01 of the Code of Virginia establishes that records may be entirely withheld “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.” In other situations where a record may be exempt in part but not entirely, the portions that are not exempt must be provided although exempt portions may be withheld. Reading these provisions together makes clear that FOIA requires that when a public body receives a request for public records, it must provide whatever responsive records it has unless the records are exempt from release, in whole or in part, in which case the exempt portion(s) may be withheld. If a public body has an existing record that is responsive to the request and not exempt, then access to that record must be provided “by inspection or by providing copies of the requested records, at the option of the requester” pursuant to subsection A of § 2.2-3704 of the Code of Virginia.
Regarding searches, FOIA does not require a public body to explain or provide details as to how it conducted its search for the requested records under any of the required responses provided by subsection B of § 2.2-3704 of the Code of Virginia. Upon review of your request for an advisory opinion, there appears to be a dispute of fact between the public body and you as to whether a search for records was conducted in good faith. This office has previously opined that: “FOIA requires a requester to identify the requested records with ‘reasonable specificity’ and a public body to make a ‘good faith’ effort to access, search, duplicate, and supply the records as requested.1 In several prior opinions, this office has addressed the efforts that a public body must undertake in the search for records.2Recognizing that public bodies have different records and different methods of record-keeping, this guidance provided that ‘while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith.’3 Therefore, unless there is evidence to the contrary, the presumption in FOIA remains that government officials, officers, and staff members are performing their duties appropriately.”4 Furthermore, this office opined that whether a public body conducted its search for records in “good faith” is “a determination of fact that is outside the authority of this office.”5 Following these prior opinions, only a court would have the authority to resolve such a dispute regarding whether a search was conducted in good faith.
In a recent case, the Virginia Court of Appeals further explained that “the principle that ‘the ancient presumption is that every man will obey the law’…is not a holding about a presumption that must be overcome with evidence, but a holding about pleading standards.”6The Court of Appeals went on to state that “without proper allegations, the Court could not presume by default that the defendant would not act on good faith” but also that “[t]he general presumption of good faith does not shield [a public body] from a well-pleaded complaint.”7 The Court held in that case that the pleadings alleged sufficient facts to overcome a demurrer, while also quoting a prior opinion from this office that “[q]uestions of reasonableness are matters for the courts to decide” and that “it is within the powers of a court to order a public body to perform a search and to delineate the parameters of [a VFOIA] search.”8 As a different example applying the same principle but reaching a different result, the Circuit Court of the City of Norfolk declined to order a search for records on public employees’ personal devices because (i) the public body’s policy was not to allow employees to use their personal devices for public business; (ii) the presumption was that the employees would follow the policy in good faith; and (iii) no information was presented to the Circuit Court that would counter the presumption.9 Thus it is clear that while the law presumes that government employees and officials will act in good faith, that presumption may be overcome, both at the pleadings stage (by proper allegations) and at trial (by sufficient evidence), but it is up to the courts to rule on such questions.
Statutory remedy
As previously observed by this office, only a court may enforce the provisions of FOIA. Pursuant to § 2.2-3713 of the Code of Virginia, the statutory remedy for a FOIA violation would be to bring a petition for mandamus or injunction, supported by an affidavit showing good cause, in either general district or circuit court.10 Generally speaking, mandamus is when a court orders a public official to do something required by law (for example, to produce non-exempt records in accordance with FOIA) and injunction is when a court issues an order not to do something (for example, not to violate FOIA in the future). The possible remedies a court may order may be as varied as the possible violations; only a court may determine what remedy is appropriate under a particular set of facts. Additionally, there are heightened civil penalties that a court may order for certain violations pursuant to § 2.2-3714 of the Code of Virginia, as well as mitigating factors to be considered as stated in § 2.2-3715 of the Code of Virginia.
The Supreme Court has previously issued an opinion addressing the differences between common-law mandamus actions and FOIA’s statutory mandamus provisions that may be helpful in understanding this aspect of the remedies available under FOIA:
Circuit courts have the jurisdiction to issue a writ of mandamus in any case where it is “necessary to prevent the failure of justice and in which mandamus may issue according to the principles of common law.” The common law issuance of a writ of mandamus is “an extraordinary remedy employed to compel a public official to perform a purely ministerial duty imposed upon [the official] by law.”
We have consistently held that “the writ of mandamus . . . only issues when there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy.” We have further noted that to be “adequate,” the legal remedy “must be equally as convenient, beneficial, and effective as the proceeding by mandamus.”
…
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.11
The Supreme Court concluded “that the lack of any reference in this statute to the common law requirement that the petition prove a lack of adequate remedy at law evinces the intent of the General Assembly to eliminate that common law prerequisite to the issuance of a writ of mandamus.”12
More recently, the Supreme Court of Virginia has expounded on FOIA remedies and more specifically, the standards for granting an injunction under FOIA:
In addition to setting forth the obligations of public officials and bodies and the rights of the public, [FOIA] makes various remedies available when those duties have been breached and those rights have been violated. Pertinent to the trial court’s granting of the injunction here, Code § 2.2-3713(A) specifically provides that, when a person has been “denied the rights and privileges conferred by” [FOIA], he or she may seek “to enforce such rights and privileges by filing a petition for mandamus or injunction[.]” Code § 2.2-3713(D) then provides that “[a] single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein.”
As an equitable remedy, “[a]n injunction is a writ issued in a suit in equity whereby the plaintiff seeks to prohibit the defendant from doing an act . . . or to mandate the defendant to perform a specified act.” We long have recognized that, in that context, “an injunction is an extraordinary remedy[.]” An equitable injunction has well-known requirements, including that the requesting “party . . . show irreparable harm and the lack of an adequate remedy at law.”
Such traditional requirements, however, do not apply to statutory injunctions. Rather, “[w]hen a statute empowers a court to grant injunctive relief, the party seeking an injunction is not required to establish the traditional prerequisites, i.e., irreparable harm and lack of an adequate remedy at law, before the injunction can issue.” Instead, the focus in a proceeding involving a statutory injunction is whether the authorizing “statute or regulation has been violated.”
Although the focus is on whether the statute has been violated and [FOIA] permits a trial court to enter an injunction based upon a single violation of [FOIA], Code § 2.2-3713(D), we have never held that the mere finding of a violation entitles a petitioner to an injunction. Rather, once a violation of [FOIA] has been established, whether an injunction is warranted is a question committed to the trial court’s discretion. In exercising that discretion, a trial court should consider the potential for a future violation of [FOIA]. Although [FOIA] “permits a trial court to infer from a single violation that future violations will follow[,]” the entry of an injunction remains “extraordinary relief [and] is still predicated on the probability that future violations will occur.” An injunction under [FOIA] “is not to be casually or perfunctorily ordered[,]” and must be tied to the actual violation of [FOIA] that gives rise to injunctive relief.13
Thus FOIA provides statutory remedies by allowing those who believe that their FOIA rights have been violated to file a petition for mandamus or injunction, by providing specific statutory provisions that differentiate such petitions from similar actions at common law, and allowing courts sufficient leeway to craft remedies appropriate to any given situation. With that in mind, the policy considerations you have presented (where a public body could potentially flaunt FOIA’s requirements with corresponding negative consequences to the public) are well-taken, but the appropriate remedy under FOIA would then be to file a petition in court so that the court could make any necessary rulings on disputed facts and issue an appropriate remedy for whatever violation(s) it may find, if any.
Sincerely,
Alan Gernhardt, Esq.
Executive Director
Joseph Underwood
Senior Attorney
1Freedom of Information Advisory Opinion 07 (2024).
2See Freedom of Information Advisory Opinions 05 (2024), 03 (2023), 04 (2018), and 04 (2010).
3Freedom of Information Advisory Opinion 04 (2010).
4Freedom of Information Advisory Opinion 05 (2024).
5Freedom of Information Advisory Opinion 01 (2016), n. 2.
6Commonwealth v. Sawyer, 84 Va. App. 547, 562, 914 S.E.2d 623, 630 (2025)
7Id.
8Id., 84 Va. App. at 563, 914 S.E.2d at 631 (quoting Freedom of Information Advisory Opinion 04 (2010)).
9Transportation Dist. Comm’n of Hampton Rds. v. Raja, 114 Va. Cir. 130 (Circuit Court of the City of Norfolk, 2024).
10Freedom of Information Advisory Opinion 06 (2014)(footnotes omitted).
11Cartwright v. Commonwealth Transp. Comm’r, 270 Va. 58, 63-66, 613 S.E.2d 449, 452-453 (Va. 2005)(internal citations omitted).
12Id.
13Suffolk City Sch. Bd. v. Wahlstrom, 302 Va. 188, 210-211, 886 S.E.2d 244, 256-257 (Va. 2023).