The Virginia FOIA Opinion Archive

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FOI Advisory Council Opinion AO-08-13

FOIA Council weighs in on availability of date of birth information held by law enforcement agencies.

Attorney General Opinion Sept 27 2013

A public official's constituent newsletter may or may not be a public record; it depends on the content and use of the newsletter. However, if you assume the newsletter is a public record, the email distribution list used to send the newsletter is would not be exempt from disclosure.

FOI Advisory Council Opinion AO-06-13

A contract between a public body and a public employee settling an employment dispute may be withheld as a personnel record. However, accounting records that reflect payments pursuant to a settlement agreement are not exempt.

FOI Advisory Council Opinion AO-05-13

Charges for public records are limited to actual costs. The actual cost to provide electronic records is not the same as the cost to provide paper copies. Estimates must be provided in advance if requested.

FOI Advisory Opinion AO-01-13

Generally, records submitted by a private company to a state agency as required by regulation are public records subject to FOIA. Marking such records proprietary and confidential does not, by itself, make them exempt from mandatory disclosure; records are only exempt if there is a specific provision of law that allows them to be withheld.

FOI Advisory Council Opinion AO-06-12

Considering three different records exemptions, an adult arrestee photograph (mug shot) may not be withheld as a noncriminal incident record; may be withheld if its release would jeopardize a felony investigation; and may be withheld if the subject depicted is also a witness.

FOI Advisory Council Opinion AO-04-12

A telephone billing record paid by a public official in his personal capacity that was not prepared for or used in the transaction of public business is not a public record subject to FOIA. Such a telephone billing record is not paid with public funds, only indicates that a call was made (it does not reveal the contents of the call or who made it), and is prepared by the service provider in order to receive payment as part of a commercial transaction.

FOI Advisory Council Opinion AO-07-11

Summarizes the requirements for making and responding to a FOIA request. Clear communications between the parties are essential. Public bodies are reminded to provide one of the five responses required by statute.

FOI Advisory Council Opinion AO-03-12

A public official may only charge his or her rate of pay as a public official, not as a private employee, when responding to requests for public records.

FOI Advisory Council Opinion AO-06-11

Adult arrestee booking photographs (mug shots) are public records subject to FOIA.

FOI Advisory Council Opinion AO-04-11

The attorney-client privilege exemption must be narrowly construed. If a record contains both exempt and non-exempt material, only the exempt material may be withheld. Whether a record is exempt depends on the contents of the record and the existence of a specific legal provision that allows the record to be withheld.

Saltville v. Surber

Judge in Saltville reviewed under seal several documents related to a former town employee. He eventually ruled that some of them must be released to a newspaper, over the former employee's objection, and that others did not have to be released because they did not discuss public business. Read the full final order here.

FOI Advisory Council Opinion AO-03-11

Section 40.1-11 of the Code of Virginia exempts certain records of the Department of Labor and Industry from mandatory disclosure under FOIA.

FOI Advisory Council Opinion AO-02-11

Pursuant to the exemption for records of persons imprisoned in penal institutions in the Commonwealth related to the imprisonment, the Department of Corrections may withhold a list of female inmates showing the inmates' names, state identification numbers, and facility locations.

FOI Advisory Council Opinion AO-04-10

For the purpose of the definition of public records, the meaning of in the transaction of public business must be examined on a case by case basis. FOIA does not mandate how to perform a search for records, but any search that is conducted must be carried out in good faith.

FOI Advisory Council Opinion AO-01-10

Records that have been entered into evidence and made part of the public record at a public hearing may not subsequently be withheld from disclosure as exempt records of a criminal investigation or prosecution.

FOI Advisory Council Opinion AO-10-09

Certain portions of FOIA's criminal records exemptions are currently limited to use only by local law enforcement agencies, not the State Police.

FOI Advisory Council Opinion AO-08-09

Public records posted on a public body's Web site remain subject to FOIA. It is generally expected that public bodies will not charge for sending brief electronic mail messages providing Web addresses or copied excerpts of electronic records, as the actual costs incurred usually are negligible.

FOI Advisory Council Opinion AO-06-09

Without a prior agreement, when a requester asks for records to be sent via e-mail, the government cannot bill the requester for the cost and mileage involved with delivering the records via certified mail.

FOI Advisory Council Opinion AO-02-09

Scholastic records, by definition, are those records which contain information directly related to a student and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution. A denial of a records request must cite the specific Code section that authorizes the withholding of the records.

FOI Advisory Council Opinion AO-01-09

The Office of the Executive Secretary of the Supreme Court of Virginia is an agency of the Commonwealth supported wholly or principally by public funds; opinion also address response time, and failure to respond properly.

FOI Advisory Council Opinion AO-11-08

A record that is not prepared, owned, or possessed in the transaction of public business is not a public record subject to FOIA. When conducting private business, public officials and employees (in this case, a university law professor) should avoid indicia, such as agency letterhead, that make private records appear to carry the imprimatur of a public body.

FOI Advisory Council Opinion AO-09-08

FOIA provides that public bodies bear the burden of proof to establish an exemption by a preponderance of the evidence. However, FOIA is silent regarding whether a requester may challenge as an abuse of discretion a decision not to disclose records that are excluded from mandatory disclosure pursuant to a valid exemption, once the exemption has been established.

FOI Advisory Council Opinion AO-07-08

Failure to respond to a request for records is deemed a denial of the request and a violation of FOIA. Clear communications are essential to FOIA transactions.

FOI Advisory Council Opinion AO-06-08

Records concerning general law enforcement policy matters must be disclosed, but records specifying how policy will be implemented, i.e. the methods by which officers will conduct investigations, may be withheld as records of investigative techniques or procedures.

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