Difference between revisions of "Virginia Freedom of Information Act"

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(The cases are listed alphabetically. To order them by year please click the icon to the right of the '''Year''' heading)<br/><br/>
 
(The cases are listed alphabetically. To order them by year please click the icon to the right of the '''Year''' heading)<br/><br/>
 
{{Transparency litigation dpl|State = Virginia}}
 
{{Transparency litigation dpl|State = Virginia}}
 
==Notable requests==
 
  
 
==See also==
 
==See also==

Revision as of 23:19, 10 October 2013

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The Freedom of Information Act is a series of laws designed to guarantee that the public has access to public records of government bodies at all levels in Virginia.

The Virginia Open Meetings Law, under the Freedom of Information Act, legislates the methods by which public meetings are conducted.

To learn more about how to make a public records request in this state, please see: Virginia FOIA procedures

Proposed changes

2009

Proposed reforms in state sunshine laws, 2009

House

  • House Bill 1799 [1] would create a "Fraud & Abuse Whistle Blower Protection Act" and make any complaints made under that act exempt from FOIA requests. Passed the House on January 30, 2009, referred to Senate General Laws. [2]
  • House Bill 1845 [3] proposes a pilot program in Prince William County where the clerk of the Circuit Court is permitted to assess a fee for accessing public land records. Passed the House on February 6, 2009. [2]
  • House Bill 1879 [4] seeks to change the methods of notice regarding public meetings in localities with a population over 100,000. The bill would allow for public notice to be made via websites or public access television rather than in the newspaper. HB 1879 failed to report from subcommittee. [2]
  • House Bill 1935 [5] would exempt from public disclosure company licensing applications and supporting documentation received by the State Corporation Commission. This bill has passed the House, and was referred to Senate Commerce & Labor. [2]
  • House Bill 2026 [6] would establish the "Virginia Employee Voluntary Accounts Program" and provide an exemption to FOIA for discussions of personal information made by the program's Board. [2]
  • House Bill 2043 [7] provides that expense records of the Virginia Port Authority are subject to FOIA, with some exceptions. HB2043 failed to report from subcommittee. [2]
  • House Bill 2144 [8] restricts information held by the Department of State Police for purposes of entry into the Virginia Criminal Information Network to law enforcement personnel. [2] Would exempt the state datebase of concealed weapon carry licenses from public disclosure. This bill has passed both House and Senate, and now waits for the Governor's signature. [9]
  • House Bill 2181 [10] seeks to exempt from public disclosure the internal systems used by the Commonwealth's financial systems. Passed House on January 30, 2009 and referred to Senate General Laws. [2]
  • House Bill 2266 [11] would expand an existing FOIA exemption for zoning complainants personal information to include complaints relating to the Uniform Statewide Building Code or the Statewide Fire Prevention Code. HB 2266 passed the House on January 30, 2009 and was referred to Senate General Laws. [2]
  • House Bill 2269 [12] would require that all expenditure reports that school boards give to their governing bodies also available to the public. Passed the House, referred to Senate Education & Health. [2]
  • House Bill 2285 [13] creates a pilot program (Virginia Enterprise Applications Program or VEAP) that would build a searchable online database of state incomes and expenditures. Engrossed by House February 9, 2009.
  • House Bill 2421 [14] seeks to exempt the personal correspondence of public employees from FOIA. Bill was referred to FOIA Council February 3, 2009. [2]
  • House Bill 2427 [15] would exempt the first five digits of a social security number on an otherwise public document from disclosure, and it passed the House on February 6, 2009. [2]
  • House Bill 2471 [16] provides that the disclosure of the names of individual teachers is not required under FOIA in response to a request for the official salary or rate of pay of employees of a local school board. It was recommended to send the bill to the FOIA Council. [2]
  • House Bill 2549 [17] excludes certain financial records of the Virginia College Savings Plan from the Freedom of Information Act. Passed the House on February 6, 2009. [2]
  • House Bill 2639 [18] exempts certain records of the Department of Veterans Services and the Veterans Services Foundation from the the mandatory disclosure provisions of the Freedom of Information Act. Passed the House on February 6, 2009. [2]

Senate

  • Senate Bill 880 [19] Affirmatively states that Department of Game and Inland Fisheries records are subject to FOIA except for personal info on hunting, boating, fishing, etc. licenses. [2]
  • Senate Bill 934 [20] Provides that no legislative action on the budget can be taken until details have been posted on the General Assembly's website for at least 72 hours. The bill was left in Finance. [2]
  • Senate Bill 935 (House Bill 1845) [21] proposes a pilot program in Prince William County where the clerk of the Circuit Court is permitted to assess a fee for accessing public land records. Passed Senate February 6, 2009. [2]
  • Senate Bill 936 (House Bill 2285) [22] creates a pilot program (Virginia Enterprise Applications Program or VEAP) that would build a searchable online database of state incomes and expenditures. Reported from Finance, February 5, 2009. [2]
  • Senate Bill 1014 (House Bill 2266) [23] would expand an existing FOIA exemption for zoning complainants personal information to include complaints relating to the Uniform Statewide Building Code or the Statewide Fire Prevention Code. Rolled into SB1478 (see below), February 4, 2009. [2]
  • Senate Bill 1285 [24] would require local governing bodies and local school divisions to publish the estimated required local match in the publication of the annual school budget. Reported from Local Government, February 3, 2009. [2]
  • Senate Bill 1305 [25] would exempt from the Government Data Collection and Dissemination Practices Act public assistance fraud investigations conducted by the Department of Social Services and local social service departments. Reported from General Laws, February 4, 2009. [2]
  • Senate Bill 1316 [26] Strikes the requirement to publish an index of computer databases and amends the requirement to publish a statement of rights and responsibilities to ensure that the public can find out generally what types of public records a public body has and what exemptions may apply to those records. This bill is a recommendation of the Freedom of Information Advisory Council. Reported from General Laws, February 4, 2009. [2]
  • Senate Bill 1317 [27] requires that any electronic communication meetings (teleconference) shall be held in compliance with the provisions the Freedom of Information Act, except that a quorum of the Board is not required to be physically assembled at one primary or central meeting location. This bill is a recommendation of the Freedom of Information Advisory Council. Reported from General Laws, February 4, 2009. [2]
  • Senate Bill 1319' [28] clarifies that minutes of public meetings must be in writing. This bill is a recommendation of the Freedom of Information Advisory Council. Reported from General Laws, February 4, 2009. [2]
  • Senate Bill 1332 [29] Provides that a private entity that operates, manages, or supervises any portion of the state highway system shall be considered a public body for purposes of the Virginia Freedom of Information Act.
  • Senate Bill 1344 [30] Amends an existing records exemption for economic development records to include records related to the retention of existing business, and to allow the exemption to be used by all public bodies subject to FOIA. The bill makes corresponding amendments to the existing meetings exemption that allows discussion of such records in closed meetings. Reported from General Laws, February 4, 2009. [2]
  • Senate Bill 1478 [31] Provides a record exemption under the Freedom of Information Act for the names, addresses, and telephone numbers of complainants relating to Uniform Statewide Building Code or Statewide Fire Prevention Code enforcement made to the local governing body. Reported from General Laws, February 4, 2009. [2]

Virginia's transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Virginia #38 in the nation with an overall percentage of 46.10%. [32]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Virginia 78 points out of a possible 100, a letter grade of "C", and a ranking of 5 out of the 50 states.[33]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Virginia's law as the 5th best in the country, giving it a letter grade of "B-".[34]

Features of the law

Sunshine variations Compare States: Sunshine variations
Click on the heading to compare your state's law to other state's transparency laws.

=== Declared legal intention===

The declared legal intention of the Virginia Freedom of Information Act states:
By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. 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. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.

Any ordinance adopted by a local governing body that conflicts with the provisions of this chapter shall be void. [35]

=== What records are covered?=== Public records includes all documents, no matter their physical form, that are "prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." [36]

Exemptions

Notable exceptions include but are not limited to:

  • Virginia Parole Board records
  • Petit jury and grand jury records
  • Family assessment and planning records
  • Virginia State Crime Commission records[37]
  • Personal records
  • Attorney client privilege and active litigation records
  • Examinations
  • Closed meeting records
  • Appraisals of potential land sale/purchases[38]
  • Security records that would jeopardize individuals, infrastructure or telecommunications including victim information[39]
  • Intra-agency investigation, health investigations, lottery investigations, active criminal investigations, Board of Education investigations, and labor relations information [40]
  • Academic research and records of students and applicants at state schools [41]
  • Health records and health licensing information [42]
  • Trade secrets, financial statements, and all financial information voluntarily submitted to any state agency[43]
  • Working papers of the Executive and Legislative branches that are still in the process of deliberation [44]
  • Library records
  • Utility customer account information
  • Locations of sensitive environmental material
  • Lottery records [45]
The statute explicitly lays out a policy on exemptions, stating:
"The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt". [46]

==== Deliberative process====

=== What agencies are covered?=== Public agencies include all branches of government at both the state and local levels as well as any organizations who are supported primarily by state funds. [47] However, statute provides an exemption for the records of all state courts. [48]

==== Legislature====

Yes.pngp

The legislature falls under the definition of public body found atVirginia Code 2.2-3701and is subject to the Virginia Freedom of Information Act.

The State Corporation Commission is explicitly exempted under Christian v. State Corporation Commission.Cite error: Closing </ref> missing for <ref> tag

==== Public universities====

Status: Presumed Open
Popular Exemptions
ResearchDonorsExaminationsCourse Materials
Y
600px-Yes check.png
[49]
Y
600px-Yes check.png
[50]
 

The definition of public body presumably includes public universities within the state. However, testing and exam material and unpublished academic research are exempt under Virginia Code 2.2-3705.4.

=== Who may request records?=== Any citizen of Virginia may request public records in the state. The law explicitly states that all "public records shall be open to inspection and copying by any citizens of the Commonwealth". [51] However, Virginia does limit the right of incarcerated felons to request any records whatsoever. [52]

On January 19, 2009, Mark McBurney (a Rhode Island resident) and Roger Hurlbert (a California resident) filed a federal lawsuit, McBurney and Hurlbert v. McDonnell, with the District Court for the Eastern District of Virginia to overturn the residency requirement in the Virginia law. A similar residency restriction in the Delaware FOIA law was struck down by a federal court in Lee v. Minner.[53],[54]

Impact of Lee v. Minner

In 2006, a federal appeals court (the Third Circuit) in the case Lee v. Minner rejected the constitutionality of Delaware's law that disallowed non-residents from making public record requests.

The Third Circuit's rulings apply to Delaware, New Jersey, Virginia, Arkansas, Pennsylvania and any other state who permits access to only state citizens. As a result, the provision in the Virginia Freedom of Information Act that prohibits non-residents from access to records is likely to be considered invalid.

=== Must a purpose be stated?=== The Virginia FOIA does not require a statement of purpose with regard to records requests.

=== How can records be used?=== The act places no restrictions on the use of records.

=== Time allowed for response===

5 days

Virginia law requires open records request responses to be made within 5 business days. However, agencies may petition courts for additional time for larger requests. [55]

Fees for records

==== Copy costs:==== Virginia allows fees to be charged for not only the cost of duplication but also the cost of search and maintenance of equipment and databases. However, advanced payment is only required of requests that will cost $200 or more. [56]

==== Search fees:====

Yes.pngp

Virginia law allows agencies to charge fees to cover the actual cost of records searches.[57]

=== Records commissions and ombudsmen:=== The Virginia Freedom of Information Advisory Council was established by the Virginia Freedom of Information Act as an advisory council to the legislature, in order to better develop policy and facilitate compliance with the law.


Using Virginia's FOIA

=== Role of the Attorney General===

Attorney General of Virginia

There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.

Open meetings

The Virginia Open Meetings Law states that, "[E]very meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked." [58]

Relevant legal cases

See also: Court cases with an impact on state FOIA

Here is a list of lawsuits in Virginia. For more information go the page or go to Virginia sunshine lawsuits.
(The cases are listed alphabetically. To order them by year please click the icon to the right of the Year heading)

Lawsuit Year
Gannett v. Department of Health and Social Services 2005
McBurney and Hurlbert v. McDonnell 2009


See also

External links

References

  1. Text and status of HB1799
  2. 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24 2.25 2.26 Virginia Coalition for Open Government 2009 legislative roundup
  3. Text and status of HB1845
  4. Text and status of HB1879
  5. Text and status of HB1935
  6. Text and status of HB2026
  7. Text and status of HB2043
  8. Text and status of HB2144
  9. Gun legislation awaiting Kaine's signature, NV Daily, February 27, 2009
  10. Text and status of HB2181
  11. Text and status of HB2266
  12. Text and status of HB2269
  13. Text and status of HB2285
  14. Text and status of HB2421
  15. Text and status of HB2427
  16. Text and status of HB2471
  17. Text and status of HB2549
  18. Text and status of HB2639
  19. Text and status of SB880
  20. Text and status of SB934
  21. Text and status of SB935
  22. Text and status of SB936
  23. Text and status of SB1014
  24. Text and status of SB1285
  25. Text and status of SB1305
  26. Text and status of SB1316
  27. Text and status of SB1317
  28. Text and status of SB1319
  29. Text and status of SB1332
  30. Text and status of SB1344
  31. Text and status of SB1478
  32. 2008 BGA-Alper Integrity Index
  33. States Failing FOI Responsiveness, National Freedom of Information Coalition, October 2007
  34. Freedom of Information in the USA, 2002
  35. Virginia Code § 2.2-3700
  36. Virginia Code 2.2-3701
  37. Virginia Statute 2.2-3703
  38. Virginia Code 2.2-3705.1
  39. Virginia Code 2.2-3705.2
  40. Virginia Code 2.2-3705.3
  41. Virginia Code 2.2-3705.4
  42. Virginia Code 2.2-3705.5
  43. Virginia Code 2.2-3705.6
  44. Virginia Code 2.2-3705.7
  45. Code of Virginia, 2.2-3700
  46. Code of Virginia, 2.2-3700
  47. Virginia Code 2.2-3701
  48. Virginia Statute 2.2-3703
  49. Virginia Code 2.2-3705.4
  50. Virginia Code 2.2-3705.4
  51. Code of Virginia, 2.2-3704
  52. Virginia Statute 2.2-3703
  53. Reporters Committee for Freedom of the Press, "Requesters challenge Virginia open records law", February 3, 2009
  54. Text of McBurney and Hurlbert v. Virginia
  55. Virginia Statute 2.2-3704
  56. Virginia Statute 2.2-3704
  57. Virginia Statute 2.2-3704
  58. Code of Virginia, 2.2-3700