Frequently Asked Questions

WHY DO WE HAVE A FREEDOM OF INFORMATION ACT?

Virginia FOIA’s policy perhaps answers this question best: “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 goes on to say that FOIA should be interpreted to “promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operation of government.” FOIA exists to ensure citizens stay informed and can hold their government and officials accountable, whether the impact of a particular action is direct, indirect, or even minimal.

WHO DOES FOIA APPLY TO?

Virginia’s FOIA applies broadly to nearly every governmental body, department, or agency in the Commonwealth, from the smallest town council all the way up to the governor’s office. That includes school boards, towns, cities, counties, police departments, economic development authorities, regional commissions, state agencies, public universities, and even the General Assembly.

It’s often easier to list the exceptions: FOIA does not apply to the State Corporation Commission, petit and grand juries, family assessment and planning teams, sexual assault response teams, or the Virginia State Crime Commission. Nor does it cover court case records, although many other records maintained by clerks of court are subject to FOIA. Finally, nonprofit organizations, homeowner associations, and private businesses are generally outside FOIA’s reach—unless they are funded “wholly or principally by public funds” or carry out a governmental duty, in which case they may be at least partly subject to its provisions.

CAN ANYONE USE FOIA?

A 2013 U.S. Supreme Court case ruled that Virginia could limit FOIA’s use to “citizens of the Commonwealth.” This means residents of other states do not have the same legal right to request records under Virginia’s FOIA. Still, nothing prevents a state agency or local government from voluntarily responding to an out-of-state request, and out-of-state residents may freely attend public meetings. By contrast, individuals currently incarcerated in local, state, or federal correctional facilities are generally barred from using FOIA.

WHAT IS A PUBLIC RECORD?

A public record is essentially anything “prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business.” It doesn’t really matter what it is — video, email, report, photo, receipt, invoice, etc. — what matters the most is that the record is in the “transaction of public business.” That’s pretty much anything the government does.

It doesn’t matter if the record is located on a personal device or account. If it’s about “public business,” then it is a “public record.” Conversely, if a record is about other matters (“Did you go to the baseball game last night?” “Honey, pick up the kids after school,” or “Doctor, can we reschedule my appointment?”), then it is not a “public record” because it is not about “public business.” And that’s the case even if the record is located on a government-issued device or account.

DOES A REQUEST HAVE TO BE IN A SPECIFIC FORMAT?

No. FOIA requests can be made over the phone, in person, by email, letter, text, etc. But while a request does not have to be made in writing, it’s still a good idea to do that so that you have a paper trail to refer back to during the transaction or during litigation, if it comes to that.

The government cannot force you to use a specific form or to submit all requests through an online platform. They can ask you to do so, and there are plenty of reasons why you’d want to. The point is, the government cannot refuse your request just because you didn’t make your request in the specific way they wanted.

The government can ask you to “provide [your] name and legal address,” but FOIA does not require this, nor does it state what would serve as proof of that address.

ARE THERE BEST PRACTICES TO FILING A FOIA REQUEST?

Lots. VCOG worked the FOIA Council to come up with several tips and strategies to (hopefully) make the FOIA process go smoothly. Click here to read them.

Keep it simple. Describe the records you want; don’t include questions that you just want answers to; keep the number of different things you’re asking for in one request to a reasonable number; and maintain clear and respectful communication throughout.

WHO DO I SEND MY REQUEST TO?

Every governmental body is supposed to have a link on its home page to information about filing a FOIA request. It is supposed to include the name of the body’s FOIA Officer and an address (snail mail and/or email) or a link to an online portal. Technically, you can submit it to anyone in the governmental body that has the records you want. It’s up to that person to get the request into the right hands. But, things will go a lot smoother if you go through the FOIA Officer.

HOW LONG DOES THE PUBLIC BODY HAVE TO RESPOND TO MY REQUEST?

The governmental body is supposed to give you an answer “promptly,” but in all cases “within 5 working days.” Day 1 is the day after they receive your request, and the timeline does not include weekends, holidays or other days the government offices are closed. One of the allowable answers (see below) to your response is that the government needs an additional 7 working days. If you have not received an answer within the initial 5-day period, follow up with an email or phone call, just to make sure the request didn’t get routed to someone’s spam folder or got put on the desk of someone who is on vacation.

WHAT ARE THE ALLOWABLE RESPONSES THE PUBLIC BODY CAN GIVE ME?

1. Here are all of the records you asked for.
2. Here are some of the records you asked for, but we are withholding others. Or, here are the records you asked for, but they have been redacted.
3. We are not releasing any records to you.
4. We do not have the records. (If they know who has them instead, they should tell you.) Or, that record does not exist.
5. We need an additional 7 working days to finish your request because “it is not practically possible to provide [them] or to determine whether they are available within the five-work-day period.”

Note 1: For responses #2 and #3, they must tell you — in writing — what exemption or other law allows them to withhold the records, how many records they are withholding and their “subject matter.”

Note 2: For response #5, they are supposed to “specify the conditions that make a response impossible.”

DO REQUESTERS HAVE TO PAY FOR THE RECORDS THEY ASK FOR?

It depends. FOIA allows the government to make “reasonable charges” for the “actual cost” of “accessing, duplicating, supplying, or searching for” the records you asked for, and “shall make all reasonable efforts to supply the requested records at the lowest possible cost.” In practice, many FOIA requests — especially ones that are fairly simple and straightforward — are handled without fees.

CAN A PUBLIC BODY INCLUDE FACTOR IN THEIR OVERHEAD TO THE TOTAL COST?

No. They can charge for the cost of the materials — copy paper, envelopes, flash drives — and for the time spent by an IT person to search for electronic records, or a FOIA Officer to make copies or review the records, but they cannot charge for the cost of the copier, the electricity used, the IT person’s benefits, overhead or any other fixed costs not associated with the specific FOIA request.

DO ALL STATES ASSESS FEES IN THE SAME WAY VIRGINIA DOES?

No. As of 2022, Virginia was one of only 9 states that does not place any kind of cap on the charge for a government employee’s time. Many other states limit labor charges by placing a cap on the hourly rate; waiving any charge for the first x-amount of time; not allowing charges for redaction time; not allowing charges for “exclusion review” (the time spent by lawyers looking for possible exemptions). Other states do not allow for labor charges at all. Some approaches may be better than others, but we have learned from experience that no matter what approach is taken, there will always be people who exploit the system to charge large fees as a way to discourage requests.

CAN I KNOW IN ADVANCE HOW MUCH I MIGHT BE ASKED TO PAY?

Yes. When you make a FOIA request, the government is supposed to inform you that it may charge fees and ask whether you would like a cost estimate. You can also get ahead of that conversation by stating in your request that you would like an estimate before any charges are incurred.

In VCOG’s opinion, the estimate should — at a minimum — include the estimated time it will take to process the request, and the hourly rate and responsibility of anyone involved in the process. Including the number of anticipated records would be helpful to. We take this position for two reasons: (1) knowing the details gives you, as the requester, more information about how you might narrow your search to reduce the final cost; and (2) if you challenge the estimate is court, a judge will need to see the details to determine whether the estimated amount is “reasonable” and reflects the “actual cost.”

There can be some confusion about the time it takes to go back and forth between your request for an estimate, their response and your confirmation that you want to go ahead with the request at that estimated price. The 5-day response time is supposed to be paused, so if it takes a few days for all of that to happen, the response deadline may be pushed back. Therefore, it can’t hurt to ask for confirmation about when the dute date is.

If the estimate is expected to be more than $200, the government can ask you to pay a deposit. The deposit is not capped at $200. That is, if the estimate is for $800, they can ask you to pay a deposit of $800.

On the other hand, the government cannot require pre-payment for estimates under $200.

The government can refuse to process your FOIA request if you have an unpaid FOIA bill that is 30 days old.

HOW MANY EXEMPTIONS ARE IN FOIA?

There are more than 150 numbered exemptions in FOIA, and many of those exemptions have several parts to them. They are sorted into eight groups.

1. Those of general application to all public bodies (e.g., personnel) (2.2-3705.1)
2. Those related to public safety (2.2-3705.2)
3. Those related to administrative investigations (2.2-3705.3)
4. Those related to educational records and records of some educational entities (2.2-3705.4)
5. Those related to health and social services (2.2-3705.5)
6. Those related to proprietary records and trade secrets (2.2-3705.6)
7. Those related to specific public bodies (2.2-3705.7)
8. Law enforcement records (2.2-3706 and 2.2-3706.1)

ARE THE EXEMPTIONS MANDATORY?

No. The exemptions give the government discretion (choice) either to disclose them to the requester or to withhold them if they fall within the exemption’s terms. (Keep in mind FOIA’s policy statement says that exemptions are to be narrowly construed.)

If only some of the information in the record falls within an exemption, but the rest does not, the governmental body is supposed to redact the exempt material, while releasing the rest. The applicable exemption is supposed to accompany any redaction.

ARE THERE OTHER REASONS RECORDS I MAY NOT GET THE RECORDS I’VE ASKED FOR?

Yes. There are dozens of sections scattered all throughout the Code of Virginia that say certain information is either excluded from FOIA, or prohibited from being released altogether. Unfortunately, there isn’t one source that maintains an updated list of these sections, but you can find a lot of them by typing in “Freedom of Information Act” (with quotation marks) into the search bar on the Code of Virginia website.

Court orders might prevent some records from being released, and occasionally federal law does, too. Think HIPAA (health privacy) or FERPA (educational records).

ARE LAW ENFORCEMENT RECORDS SUBJECT TO FOIA?

Yes. Law enforcement agencies — police, sheriff’s offices, Commonwealth’s attorneys and a handful of other entities — are subject to FOIA. Their ordinary, administrative records (payroll, budgets, invoices) are just like those common to all governmental bodies and the standard FOIA exemptions might apply. On the other hand, records about the things they do specifically as law enforcement officers can be withheld under two statutes applicable only to law enforcement: 2.2-3706 and 2.2-3706.1.

ARE THERE ANY LAW ENFORCEMENT RECORDS THAT MUST BE RELEASED?

Yes, but with caveats

1. The identity of any adult who is arrested and charged — felony, misdemeanor and traffic arrests — and the status of the charge.
2. Criminal incident information (CII) of felony arrests.
   • A general description of the criminal activity reported;
   • The date and time the alleged crime was committed;
   • The general location where the alleged crime was committed;
   • The identity of the investigating officer or other point of contact; and
   • A description of any injuries suffered or property damaged or stolen
     > This applies to recent arrests. Older arrest information can be withheld by other sections of Virginia Code as “criminal history” information.
     > CII must be disclosed even if there’s no specifc record. That is, an oral response is allowed here, and so is a summary or some other record that conveys all the elements, regardless of the format.
3. Records of completed unattended death investigations, e.g., suicide, accidental or natural causes, where no criminal charges are filed.
   These records are only available to the parent, spouse or most immediate family member.
4. Adult arrestee photographs (i.e., mug shots)
   These can be withheld to avoid jeopardizing a felony investigation, but only until the jeopardy has passed. That is, they can’t be withheld indefinitely.
5. Closed criminal investigated files.
   These must be released to the victim, victim’s family or victim’s attorney, but they don’t have to be released to anyone else.

ARE THERE ANY LAW ENFORCEMENT RECORDS THAT CANNOT BE RELEASED?

Yes. The identity of someone providing information about a crime nder a promise of anonymity. And records of some prior criminal convictions that have been expunged.

WHICH RECORDS CAN LAW ENFORCEMENT CHOOSE TO RELEASE OR WITHHOLD AT THEIR DISCRETION?

1. Criminal investigative files in cases that are ongoing.
2. Criminal investigative files in case that are not ongoing when someone other than the victim, etc., (see above) request them.
3. Certain reports submitted in confidence.
4. Records relating to neighborhood watch programs that include the names, addresses, and operating schedules of individual participants shared under a promise of anonymity.
5. Records of people incarcerated in Virginia’s prisons and jails, provided such records relate to the imprisonment.
6. Specific tactical plans that would jeopardize law enforcement or the general public’s safety’ or security of law-enforcement or the general public.
7. Pretrial, probation and parole supervision records.
8. Cell phone and pager numbers provided to law enforcement used in the performance of their official duties.
9. Undercover operations or protective details that would reveal the staffing, logistics, or tactical plans of such undercover operations or protective details. But, the cost and expenses associated with the operations must be released.
10. Records of (i) background investigations of applicants for law-enforcement agency employment, (ii) administrative investigations relating to allegations of wrongdoing by employees of a law-enforcement agency, and (iii) other administrative investigations conducted by law-enforcement agencies that are made confidential by law.
11. The identity of any victim, witness, or undercover officer, or investigative techniques or procedures. However, the identity of any victim or witness shall be withheld if disclosure is prohibited under other sections of the Virginia Code.
12. Records of the Sex Offender and Crimes Against Minors Registry maintained by the Department of State Police.

ARE RECORDS FROM CLOSED OR COLD CASES AVAILABLE UNDER FOIA?

Theoretically, the statute (2.2-3706.1) allows law enforcement to turn over records in a case that is no longer being investigated if they choose to. But, there are several caveats.

• They get 60 additional work days to respond.
• They cannot release photos, videos and similar records that depict the victim or allow the victim to be identified (except to the victim, et al.)
• If they choose to release records, they have to make a “reasonable effort” to notify the victim, et al., who may choose to ask a court for an injunction to prevent the release.
• As noted above, they have to give records to the victim, et al., or lawyers representing defendants in cases claiming actual innocence.

IS BODY CAM OR DASH CAM FOOTAGE AVAILABLE?

Body cam and dash cam footage is treated the same as all other records. That is, they can be redacted or withheld using the same standard FOIA exemptions and the special exemptions for law enforcement records. In practice, many of these records are withheld by citing multiple exemptions at the same time.

WHO HAS TO FOLLOW THE RULES FOR PUBLIC MEETINGS UNDER FOIA?

FOIA applies to “public bodies.”

Local governmental bodies like city councils, town councils, school boards, county boards of supervisors, zoning boards and planning commissions have to follow the rules, and so do their committees and subcommittees, or special task forces, workgroups or whatever they call them.

Regional groups like regional jails, transportation districts, planning districts and water authorities, as well as their committees, etc., as above.

At the state level, boards and commissions like the State Board of Elections, the State Water Quality Board, the Professional and Occupational Regulation Board, and dozens of others, as well as the boards of visitors for the state’s public colleges and universities.

Nonprofits are not covered by FOIA, nor are private businesses. FOIA doesn’t apply to meetings of government employees, either. Just the governing boards — the ones made up of elected or appointed officials with the authority to make binding decisions.

WHAT KIND OF GATHERINGS TRIGGER THE RULES?

Any time 3 or more members of a public body gather to talk about “public business,” the rules for public meetings are triggered. The 3-person rule applies regardless of the size of the public body, and regardless of how many people constitute a quorum. However, the rules would apply to just 2 people if those two people were part of a 2- or 3-person body.

As with public records, the key is the discussion of “public business.” That means the members of the board could be at the same school play, grocery store, community concert or grocery store without triggering FOIA, so long as they didn’t plan to go there to talk about public business and then actually talked about public business.

They can also go to community forums, civic groups, or the meetings of other public bodies. But again, they just can’t talk about public business if they haven’t given notice (see below) of their meeting.

HOW WILL I KNOW WHEN A PUBLIC MEETING IS GOING TO TAKE PLACE?

Public bodies must announce that they will have a public meeting at least 3 working days in advance. That notice has to be posted on their website, if they have one, in a place they regularly post notices and in the clerk’s office (or similar position). They have to send notice to anyone who has signed up to receive notice, too. They do not have to put the notice in the newspaper, but often newspapers get the notice as others do and take it upon themselves to publish the notice.

The notice must include the date, time and location of the meeting

IS THE NOTICE FOR REGULAR MEETINGS THE SAME AS FOR “PUBLIC HEARINGS”?

No. Public hearings are required before certain decisions are made (e.g., budget adoption, school redistricting). These hearings often piggyback on regular meetings, but notice for them is different. Depending on the decision, the notice must be published in a newspaper weeks in advance.

ARE AGENDAS REQUIRED FOR EVERY MEETING?

No. Agendas are not required, but if there is an agenda, a copy must be made available for the public and posted on their website at the same time that the members of the public body get it.

Sometimes an agenda will note that a closed meeting will be held. Keep in mind that the agenda’s notice of a closed meeting does not have to be as detailed and precise as the motion to go into closed session during the meeting itself. The agenda is merely a heads up.

CAN I RECORD THE MEETING WITH MY PHONE?

Yes. You can record a meeting — video and/or audio — so long as your recording equipment does not interfere with the meeting’s operation.

DO I HAVE A RIGHT TO SPEAK AT EVERY PUBLIC MEETING?

Not really. The public must be allowed to speak at a “public hearing,” but there’s no general requirement for public comment periods at regular meetings. If and when there is a public comment period, there can be rules limiting the time and manner (e.g., three minutes, no profanity, agenda items only), so long as they are applied evenly and without regard to who is speaking or what their opinion is.

WHAT IF I MISS A MEETING? ARE THERE NOTES OR MINUTES?

Most public bodies must take minutes of their meetings that include the date, time and location of the meeting, the members who were present and absent, a “summary” of the matters considered or discussed, and a record of any votes taken. Committees don’t have to take minutes, but once a meeting is over, the minutes — even in draft form — are available through a FOIA request. It does not matter whether the public body has “approved” the minutes or made them official. On the other hand, the minutes do not have to be posted to the public body’s website until they are finally approved.

DO THE SAME RULES APPLY TO THE GENERAL ASSEMBLY’S COMMITTEE MEETINGS?

No. The General Assembly’s committee meetings must be open, but they do not have to follow FOIA’s rules for other public bodies.

WHAT ARE THE DIFFERENT WAYS PUBLIC BODIES CAN MEET ELECTRONICALLY?

Individual participation: Individual members can call or “Zoom” in for a meeting under certain circumstates (e.g., temporary or permanent disability or a personal matter). There are some limitations on how often they can that, and a quorum of the public body must othewise be physically present together in front of the public.

All-virtual meetings: All the members of the public body are meeting by video conference. No one is present in person, and the public is watching the feed.

Hybrid: When one or more members are participating via videoconference and the public is allowed to participate in-person or through the videoconference platform.

All three types have extensive rules that must be followed, such as adopting policies, stopping the meeting if the public feed drops, and limiting the number of times they are used.

WHO CAN HAVE AN ALL-VIRTUAL MEETING?

All-virtual meetings can only be held by state and regional public bodies. Local governments cannot use them, though they can use individual participation and hybrid meetings.

WON’T THE LIMITS ON ELECTRONIC MEETINGS MEAN I HAVE FEWER OPPORTUNITIES TO WATCH A MEETING FROM HOME?

The limitations are only for the members of the public body. Any public meeting can be livestreamed and recorded for the public regardless of whether any member of the public body participates electronically.

ARE THERE BEST PRACTICES FOR WHEN BOARD MEMBERS AND THE PUBLIC ARE PARTICIPATING ELECTRONICALLY?

Yes. VCOG worked with the FOIA Council and others to develop best practices for electronic meetings. Read them on the FOIA Council’s website (scroll down to the appendix on page 16).

CAN THE MEMBERS OF A PUBLIC BODY CLOSE THE DOORS AND TALK PRIVATELY?

During a public meeting, the public body can vote to go into a “closed meeting” to talk about certain topics. The topics are exemptions, similar to the exemptions for records.

The exemptions aren’t grouped in the same way that records exemptions are, but the gist of them is similar. That is, there’s an exemption for personnel records and there’s an exemption for a closed meeting to talk about personnel.

DO THEY HAVE TO FOLLOW THE SAME RULES IF THE ENTIRE MEETING IS GOING TO BE A CLOSED SESSION?

Yes. Closed meetings can only be held within an open meeting, even if the only item on the agenda is a closed meeting.

CAN THEY VOTE ON SOMETHING IN CLOSED SESSION?

When they are in a closed meeting, the members of the board can ask each other how they would vote on the matter. They can take straw polls. However, votes to transact public business must be taken in the open session and they can’t use secret ballots.

ARE THERE ANY ADMINISTRATIVE APPEALS FOR WHEN I THINK THERE’S BEEN A VIOLATION OF FOIA’S RULES FOR RECORDS OR MEETINGS?

No. Though FOIA encourages government and citizens to try to work things out, if there’s no resolution, the only way to enforce your rights is to go to court.

WILL I NEED A LAWYER?

It never hurts to have a lawyer, but FOIA is written specifically to allow ordinary people to pursue their rights in general district court on their own, without a lawyer.

IT STILL SOUNDS INTIMIDATING. WHERE DO I START?

We got you! Start with VCOG’s FOIA Enforcement Center, where you’ll find resources and basic information that will get you started.