Virginia Freedom Of Information Act (VFOIA)

Rights Of Requesters And Our Responsibilities Under VFOIA 

The Virginia Freedom of Information Act (VFOIA), located in the Code of Virginia at §§ 2.2-3700 et seq., guarantees citizens of the Commonwealth (that are not incarcerated) and representatives of the media access to public records held by public bodies, public officials, and public employees.

A “public record” is any writing or recording -- regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format -- that is prepared or owned by, or in the possession of a public body (which includes us) or its officers, employees or agents in the transaction of public business.  All public records are presumed to be open, and may only be withheld if a specific, statutory exemption applies.

The policy of VFOIA states that the purpose of VFOIA is to promote an increased awareness by all persons of governmental activities.  In furthering this policy, VFOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.

Rights Of Requestors

The right to request to inspect or receive copies of public records, or both.

The right to request that any charges or costs for the requested records be estimated in advance.

If a requestor believes that his/her VFOIA rights have been violated, a petition can be filed in district or circuit court to compel compliance with VFOIA.  Alternatively, a requestor may contact the VFOIA Council for a nonbinding advisory opinion.

Making A Request For Records

Public records may be requested by U.S. Mail, fax, e-mail, in person, or over the phone.  VFOIA does not require that a request be in writing, nor does a requestor need to specifically state that he/she is requesting records under FOIA. Note, however, from a practical perspective, it may be helpful for both a requestor and the person receiving the request to put the request in writing and to state that the request is being made under VFOIA.  This alerts our office to the nature of the request and allows us to create a record of the request.  It also gives us a clear statement of what records are being requested, so that there is no misunderstanding as might occur with a verbal request.  However, we cannot refuse to respond to a VFOIA request if a requestor elects to not put it in writing.

A request must identify the records being sought with "reasonable specificity."  This is a common-sense standard.  It does not refer to or limit the volume or number of records that are being requested. Instead, it requires that a request be specific enough so that we can identify and locate the records being sought.

A request must ask for existing records or documents.  VFOIA gives the requestor a right to inspect or copy existing records. It does not apply to a situation where a requestor is asking general questions about the work of our office nor does it require our office to create a record that does not exist.

A requestor may choose to receive electronic records in any format used by our office in the regular course of business. For example, if a requestor requests records maintained in an Excel spreadsheet, a requestor may elect to receive those records electronically, via e-mail or on a computer disk, or to receive a printed copy of those records.

If we have questions about a request, the requestor is asked to cooperate with our staff's efforts to clarify the type of records that are being sought. We also ask that a requestor make an effort to reach a reasonable agreement about a response to a large request.  Making a VFOIA request is not an adversarial process, but we may need to discuss a request with the requestor to ensure that we understand what records are being sought.

To request records from our office, please direct your request to our Freedom of Information Specialist, Assistant Commonwealth’s Attorney, A. J. Rosenberg via email at ajrosenb@vbgov.com, by phone at (757) 385-4779, by fax at (757) 385-1288, or by writing to FOIA Officer, Office of the Commonwealth’s Attorney, Judicial Center – Building 10B, 2425 Nimmo Parkway, Virginia Beach, VA 23456.  Mr. Rosenberg can also be contacted for any questions concerning requesting records from our office.  Additionally,  the Freedom of Information Advisory Council is available to answer questions regarding VFOIA and can be contacted by email at foiacouncil@dls.virginia.gov, or by phone at (804) 225-3056 or [toll free] 1-866-448-4100.

Our Responsibilities In Responding To A Request

We must respond to a VFOIA request within five (5) working days of receiving it.  "Day One" is considered the day after a request is received.  The five-day period does not include weekends or holidays.

The reason behind a request for public records from our office is irrelevant and is not required before we respond to a request.  VFOIA does, however, allow us to require the name and legal address of the requestor.

VFOIA requires that we make one of the following responses to a request within the five-day time period:
  1. All records disclosed: We provide the records being requested in their entirety.
  2. All records withheld:  We withhold all of the records being requested, because all of the records are subject to a specific statutory exemption.  If all of the records are being withheld, we must send the requestor a response in writing.  That writing must identify the volume and subject matter of the records being withheld, and state the specific section of the Code of Virginia that allows us to withhold the records.
  3. Some records disclosed/remainder withheld:  We provide some of the records being requested, but withhold other records.  We cannot withhold an entire record if only a portion of it is subject to an exemption.  In that instance, we may redact the portion of the record that may be withheld, and must provide the remainder of the record.  We must provide the requestor with a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
  4. Records not found or non-existent or with another custodian:  We inform the requestor in writing that the requested records cannot be found or do not exist (we do not have the records being sought by the requestor).  However, if we know that another public body has the requested records, we must include contact information for the other public body in our response to the requestor. 
  5. Insufficient time to respond:  If it is practically impossible for us to respond to a request within the five-day period, we must state this in writing, explaining the conditions that make the response impossible.  This will allow us seven additional working days to respond to a request, giving us a total of 12 working days to respond to a request.

If a request is for a very large number of records, and we feel that we cannot provide the records within 12 working days without disrupting our other organizational responsibilities, we may petition the court for additional time to respond to the request.  However, VFOIA requires that we make a reasonable effort to reach an agreement with the requestor concerning the production of the records before we go to court to ask for more time.

Costs

A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of § 2.2-3704 of the Code of Virginia.

A requestor may have to pay for the records being requested from us.  VFOIA allows us to charge for the actual costs of responding to VFOIA requests.  This would include items like staff time spent searching for, redacting and copying the requested records, copying costs, or any other costs directly related to supplying the requested records.  It cannot include general overhead costs.

If we estimate that it will cost more than $200 to respond to a request, we may require a requestor to pay a deposit, not to exceed the amount of the estimate, before proceeding with a request.  The five days that we have to respond to a request does not include the time between when we ask for a deposit and the response of the requestor. In the event the requestor fails to respond to our request for payment of the deposit within 30 days, the request for records will be considered withdrawn until such time as the requestor renews his/her request.

A requestor may request that we estimate in advance the charges for supplying the records being requested.  This will allow a requestor to know about any costs upfront, or give a requestor the opportunity to modify his/her request in an attempt to lower the estimated costs.

If a requestor owes us money from a previous VFOIA request that has remained unpaid for more than 30 days, we may require payment of the past-due bill before we will respond to a requestor's new VFOIA request.

Types Of Records

The following is a general description of the types of records held by us:
  • Criminal incident information
  • Adult arrestee photographs
  • Information relative to the identity of persons arrested or charged and the status of such arrest or charge(s)
  • Criminal investigative files relating to investigations or proceedings that are not ongoing and not containing records that are in the custody of another agency. Please note that the material contained in police investigative reports and bodycam videos are properly in the custody of the Virginia Beach Police Department. You should contact this agency for these records. 
If a requestor is unsure whether we have the records being sought, please contact Freedom of Information Specialist, Assistant Commonwealth’s Attorney, A. J. Rosenberg via email at ajrosenb@vbgov.com, by phone at (757) 385-4779, by fax at (757) 385-1288, or by writing to the FOIA Officer, Office of the Commonwealth’s Attorney, Judicial Center – Building 10B, 2425 Nimmo Parkway, Virginia Beach, VA 23456. 

Commonly Used Exemptions

The Code of Virginia allows any public body to withhold or redact certain records from public disclosure.  We commonly withhold or redact records subject to the following exemptions:
  • Personnel records (§ 2.2-3705.1 (1) of the Code of Virginia)
  • Records subject to attorney-client privilege (§ 2.2-3705.1(2)) 
  • Records from ongoing criminal investigative files (§ 2.2-3706 and 2.2-3706.1)
  • Legal memoranda and other work product compiled specifically for use in litigation (§ 2.2-3705.1(3))
  • Reports submitted in confidence to us as a law enforcement agency (§ 2.2-3706.B.2)
  • Records pertaining to neighborhood watch programs (§ 2.2-3706.B.3)
  • Records of persons imprisoned in penal institutions in the Commonwealth (§ 2.2-3706.B.3) or any victim, witness, undercover officer, or investigative techniques/procedures

Policy 

Our general policy is to invoke the personnel records exemption in those instances where it applies to protect the privacy of employees and officials of our office.

Although the list above includes the most commonly used exemptions, we reserve the right to use any exemption provided under the Virginia Freedom of Information Act. We also will withhold or redact records for which release is prohibited by any applicable provision of federal or other state law, including, but not limited to, certain tax records, records that identify a victim of sexual assault or other crime, records that identify juveniles, confidential juror information, and an individual’s private, criminal and medical records where disclosure is not required by law.






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