The following are answers to the questions submitted at our May 17 FOIA and records management training seminar that we were unable to get to in the time allotted. Answers have been compiled by Glenn Smith (Library of Virginia), Maria Everett and Alan Gernhardt of the FOIA Council and Megan Rhyne at the Virginia Coalition for Open Government.
Click here to view Glenn’s presentation on records management.
FOIA
Where do you find the exemptions for certain departments?
The first place to start would be under 2.2-3705.7, which is the exemption category for “records of specific public bodies and certain other limited exemptions.” You’ll have to read through them one by one, as well as all the other exemptions, to see if it covers your agency. Or, you can go to a website with the full text of the act (like VCOG) and do a global search (control-F) for the agency/department name.If someone whose legal residence is in Maryland owns land in Virginia are they able to FOIA a local government or are the considered non-residents?
FOIA only refers to “citizens of the Commonwealth.” As Maria stated in her discussion, that generally refers to someone who lives in Virginia. Remember that FOIA does not prohibit out-of-state requests from being filled; it merely places the request outside the realm of FOIA and allows you to fill requests on your own timeline and with advance payment. The question might be why it would be in anyone’s interest to deny access to a Virginia property holder, or to the out-of-state parents of a student at a Virginia university, or the out-of-state child of a Virginia nursing home resident. As Maria pointed out, if denied, these folks will usually be able to find someone in Virginia to make the request for them, meaning you would then be having to respond under FOIA’s rules.If someone says they did a FOIA request and you have no record of it and they don’t either, can you be sued based on the mere statement?
A citizen could sue based on his/her allegation alone, but if they don’t have any proof of the request, and you don’t either, a judge would probably determine that there’s no violation.Can you charge for postage costs if mailing paper copies?
Yes.Under what circumstances can you charge hourly administrative time to monitor a requester as he/she goes through boxes of records?
An Attorney General’s opinion has said that without any indication that the records are in jeopardy (that is, the safety of the records is not in question), government cannot charge for the time to observe a requester who is inspecting records.
To learn more about fees — what’s allowed and what’s not — check out the FOIA Council publication “Taking the Shock Out of FOIA Charges”: http://foiacouncil.dls.virginia.gov/ref/FOIACharges.pdf
Assessment records/working papers — who can examine? (58.1-3331B)
The FOIA Council opinion interpreting §58.1-3331 focused on subdivision (A), which requires property cards to be made available after the assessment has been mailed. The question about above is specifically about subdivision (B), which has to do with the working papers supporting the assessment. While subdivision (A) refers broadly to “any taxpayer, or his duly authorized representative, desiring to review such cards or sheets,” subdivision (B) uses narrower language with regard to who has access to the working papers underlying the assessment. Subdivsion (B) says “Any taxpayer, or his duly authorized representative, whose real property has been assessed for taxation.” An argument thus could be made that a taxpayer (or representative) can see the working papers related to his/her own appraisal.Does an accident report involving a juvenile (e.g., driver, passenger, pedestrian) count as a juvenile justice record?
Alan at the FOIA Council says he is unaware of a statutory definition of what constitutesa “juvenile justice record.” It would be up to interpretation, however, whatever the definition, §16.1-301 talks about law-enforcement records concerning juveniles and states that “the police departments or sheriffs of the counties, as the case may be, shall keep separate records as to violations of law other than violations of motor vehicle laws committed by juveniles,” which may help with that interpretation.As a citizen, how can so many federal agencies not respond or delay FOIA requests?
Federal FOIA is structured very differently from Virginia FOIA, and really from just about every other state. The main differences are that federal FOIA has only a handful of exemptions, including one for privacy, that are very, very broad, and the request must be answered within 20 business days, unless there are “unusual circumstances.” Agencies receive thousands of requests each year, so practically speaking, they just aren’t going to meet the deadline. Agencies still get sued for blowing past the deadline, but requesters often just wait until the agency finally gets around to it.When will the online comment form be available?
The FOIA Council hopes to have the form online by July 1, the day the new requirement goes into effect. Here is a link to the bill that creates the form requirement.RECORDS MANAGEMENT
If you destroy a paper record, but have an electronic copy, do you do an RM-3?
If the electronic record has been declared to be the copy of record and the paper format just a copy, then no, since the destruction of a copy is not reported.If I have a copy of a record and know the original exists outside of my agency, do I need to document its destruction?
If your copy is for only informational/reference purposes and hasn’t become your record for any reason, then as soon as its reference value no longer exists (but no later than the retention of the “original”), then the copy should be destroyed without reporting the destruction.