What is FOIA?

FOIA is the Virginia Freedom of Information Act and was enacted July 1, 1968. The purpose of the statute is to ensure citizen access, with certain valid exceptions, to government records and meetings. Since 1968 it has undergone numerous updates/re-writes. The latest being in a major overhaul in the 1999 General Assembly. That session cleaned out a lot of the previously ambiguous provisions and made the statutes easier to interpret and apply.

Where do I find FOIA?

Currently FOIA is found in Title 2.2 Chapter 37 of the Code of Virginia.

If a statutory exemption exists, do I have to withhold information?

No. Exemptions are optional, and public safety agencies are usually best served by releasing information that does not hinder investigations or unnecessarily endanger people. However, there are certain mandatory restrictions to releasing information throughout the Code of Virginia and federal law. Those usually deal with juvenile offenders and tax records that reveal the identity of the taxpayer.

Do I need to know FOIA?

Yes. Effective Oct. 1, 2001 Section 2.2-3702 requires "Any person elected, appointed or reappointed to any body not excepted from this chapter shall be furnished by the public body's administrator or legal counsel with a copy of this chapter within two weeks following election, appointment or reappointment." It further reads, "Public officials shall read and familiarize themselves with the provisions of this chapter."

Can my local government enact ordinances that include requirements more restrictive than FOIA?

No. Any local law/ordinance that conflicts with FOIA is void.

How do I know if it is a FOIA request?

A request for records shall identify the record/information sought with reasonable specificity. (Ex: "Can I have information on the fire you responded to last night?" would be a reasonable question unless you normally respond to multiple fires each night.)

Do they have to write their FOIA request?

No. In fact, the code section/FOIA does not even have to be mentioned. When a request is made of a governmental agency, it is a FOIA request and the time limits are in effect.

What time limits?

Once a request is made it must be responded to, with one of the following, within five working days.

� Producing the document/information.

� Producing that part of the information that is not exempt and providing the requestor written notice of which parts are exempt and citing the appropriate statute or FOIA exemption.

� Provide the requestor with written notice that the entire document/information is exempt while citing the appropriate statute or FOIA exemption.

� Provide the requestor with written notice that the document/information is not readily available and additional time will be needed. At that point an additional seven days are available. CAUTION: The additional seven days cannot be used just to delay a response.

Do I have to make the record if it does not exist?

No. The act does not require a public body to create records.

What about things at home, do I have to retrieve them?

Yes. The act requires release of records "prepared or owned by, or in the possession of a public body or its officers, employees or agents."

Are e-mails and my computer files accessible?

Yes. The act defines "public records" as "all writings and recordings that consist of letters, words or numbers or their equivalent, set down by handwriting, typewriting, printing, Photostating, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics."

Are 911 tapes public information?

Yes. The 1999 revisions to the act included a revision reversing, in part, a 1998 Virginia Supreme Court decision that these tapes were not accessible.

What must be released about a criminal incident?

A general description of the criminal activity reported. The date and general location that the alleged crime was committed. The identity of the investigating officer. A general description of any injuries suffered. A general description of any property damaged or stolen. Information relative to the identity of an individual who is arrested and charged, and the status of the charge or arrest.

What is exempt under the act relating to criminal incidents?

Criminal incident information that is likely to jeopardize an on-going investigation. Information that jeopardizes the safety of an individual. Information that is likely to cause a suspect to flee. Information that is likely to result in the destruction of evidence. Identity of confidential Informants. Identity of victim, witness, undercover officer or investigative technique. (Note: A detective or investigator is not necessarily considered an undercover officer simply by title.) Adult arrestee photographs when the release may jeopardize the investigation. Once the investigation is no longer in jeopardy, the photo must be released. Identity of individuals providing information under the promise of anonymity shall not be released.

What about non-criminal incident information?

Generally, records relating to missing persons, lost and found property, suicides and accidental deaths must be provided to the requestor, unless some other exception applies. However, information of a personal, medical or financial nature that would jeopardize the safety or privacy of an individual may be excluded.

Are background investigations and administrative investigations public?

No. Applicant background investigations and confidential administrative investigations are exempt. However, any criminal investigation that parallels the administrative investigation is subject to FOIA.

Can exempt records be subpoenaed?

Yes. A subpoena is a court order for the production of records. Courts are not limited by FOIA.

Can I charge for getting records?

Yes. But only for the actual cost of accessing, duplicating, supplying or searching for records. Such charges shall not exceed the actual cost to the public body for the service provided. If the estimated cost exceeds $200 the public body may then require a deposit not to exceed the estimated total cost and that deposit must be credited to the final total.

Who bears the burden of proof in an alleged violation of the act?

You. The public body that has allegedly violated the act bears the burden of proof when charged with violating FOIA.

Are there penalties?

Yes. A violation of FOIA can result in a fine of $100 to $1,000 for a first offense and $500 to $2,500 for subsequent offenses.

Prepared by Lt. Bruce Bradbery, Blacksburg Police Department