Response To Request

Any response by a public body to a FOIA request for public records shall comply with the provisions of subsection B of § 2.2-3704 of the Code of Virginia. The working papers exemption in subdivision 2 of § 2.2-3705.7 of the Code of Virginia was designed to provide a zone of privacy for the deliberative process of the designated officials. Any record labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party. If a record has already been disclosed publicly, then the working papers exemption does not apply and the records must be released, if requested. The exclusion for correspondence in subdivision 2 of § 2.2-3705.7 of the Code of Virginia applies to all written communications such as letters, emails and text messages sent or received by the designated officials. Pursuant to Lawrence v. Jenkins (Va. 1999), a technical violation of FOIA procedure does not change the fact that the records are exempt if a valid exemption applies. FOIA access rights are generally equal for all citizens with no individual having greater access rights to public records than another individual unless otherwise provided by law. FOIA provides that there is a fundamental duty for a public body to collaborate with a requester in production of the records requested. Any search for records made under FOIA must be carried out in a good faith effort by a public body's officers and employees.
 

The chief judge of the Norfolk Circuit Court ruled the Transportation District Commission of Hampton Roads (HRT) did not have the duty to search employees' personal phones, nor did it have the authority to compel the employees to turn their phones over, in response to a FOIA request for text messages about public business that might be on the phones. The judge also allowed HRT to initiate this action under the Declaratory Judgment Act.

Upon a receipt of a request, a public body must respond in accordance with the established provisions and timeframes in subsection B of § 2.2-3704. If part of the requested records are being withheld from release, a public body shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. Considering the policy of FOIA and the legal duties it imposes, there is a presumption of good faith that a custodian of records will obey the law in carrying out their duties by searching for and providing all records as requested unless the records are exempt or prohibited from release. FOIA is intended to be a non-adversarial process for obtaining information.

Loudoun County General District Court Judge Matthew Snow rules the town violated FOIA when it required a deposit of $115 (FOIA says a deposit can be requested for amounts over $200) and when the requester said she was going to ask the FOIA Council for its opinion, the town said it considered such an action a "threat" and would not process any more of the citizen's requests. (Plus, additional issues on redactions, post-litigation production of records, reasonableness of FOIA charges and attorney fees.)

District court judge imposes civil penalties on Speaker of the House for her inaccurate response to a FOIA request that a requested record did not exist.

Local governments do not have authority under §15.2-1413, which allows the adoption of modifications to essential functions during an  emergency, to relax the deadlines by which to respond to FOIA requests.

A public body may not provide a requester with a summary of an existing record instead of the record itself, even when the record may be redacted, unless the requester agrees to accept the summary instead.

A Norfolk Circuit Court Judge ruled April 15, 2020, that the Virginia Department of Corrections willfully and knowingly failed to provide a Virginian-Pilot reporter with documents he requested within the 5-day response time mandated by FOIA, nor did the VDOC ask for a 7-day extension. After repeated back and forth conversations between the reporter and the VDOC, the reporter's request was "reasonably specific," as required by FOIA, and the VDOC's attempt to argue otherwise is "disingenuous," the court wrote. Citing Hurst v. City of Norfolk, the court also ruled that even if VDOC had made a request for further specificity, that would not have tolled the 5-day response time limit.

The fundraising exemption, subdivision A 7 of § 2.2-3705.4, allows a public body to withhold certain information maintained in connection with fundraising activities by or for a public institution of higher education. The identity of a donor may only be withheld under the fundraising exemption if the donor has requested anonymity in connection with or as a condition of making a pledge or donation. Only a court has the authority to review records in camera and render a legally binding decision on whether redactions were properly made.

Batterson v. Voorhees, Powhatan County Judge Paul W. Cella