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What are your rights? Frequently asked questions
MONTEREY and WARM SPRINGS - The Virginia Coalition for Open Government provides a helpful citizens' guide on the Freedom of Information Act. The following questions and answers are based in part on the information in that guide, which notes, "Virginia's FOIA starts from the presumption that all government records and meetings are open and available to the public. A record cannot be withheld and a meeting cannot be closed unless a specific exemption applies, or unless some other statute in Virginia law applies. Just because an exemption could apply, however, doesn't mean it must. Exemptions are discretionary, and they must be interpreted narrowly to increase awareness of all citizens of government activities."
Can I get a public record?
Any Virginia citizen can ask officials to look at government records or to ask for copies of them in any medium the public body itself uses.
Are e-mails public records?
Yes. E-mails to or from government officials about government business are public records, even if they are sent to officials' personal e-mail addresses at home or work, and anyone can ask to see them. Likewise, citizens should be aware that e-mails they send to these officials also become public records that can be viewed by anyone else.
Do I need to cite the law or ask in writing?
No, you do not have to cite the law when you ask for documents. The request does not have to be in writing. Requests are most often made in verbally. You may want to write down your request anyway to help keep track of it. Officials may ask that you put your request in writing because it helps them fulfill the request properly, but they cannot require you to.
Do I have to explain why I want it?
No, you do not have to tell officials why you want access to the record or document. All you need to provide is your name and address, if asked, and what record you want to see.
What do I ask for?
Requests for information should be as specific as possible. Public officials are required to make reasonable efforts to fulfill these requests, but they keep hundreds of records. Asking for exactly what you're looking for helps them find it.
How soon must officials provide it?
When officials get your request, they have five days to respond to you, by either giving you the entire record, withholding the entire record, giving you part of the record, or letting you know it will take another seven days to fulfill the request. If any part of the record is withheld, the government must tell you exactly which FOIA exemption or other statute justifies the denial. Also, the government doesn't have to create a new record where one doesn't already exist.
Note: The coalition explains, "There are more than 100 exemptions for disclosing records. Many of the exemptions can be invoked only by specific agencies. Others are of a more general nature. Some of the most commonly used exemptions have to do with personnel records; scholastic records that identify students; health, medical and social services records; records that are part of various administrative investigations; and records that reveal security or anti-terrorism measures."
I work for a public body. Can anyone see my
personnel file?
No, personnel records are confidential. Only the employee can request his or her file. If her or she then wants to share information in the file, it's their right to do so.
What does it mean if something is "redacted?"
Records must be provided, but if they partially contain information that is exempted (personnel information or Social Security numbers, for example), those sections will be removed ("redacted") from the document before it's shared with you. Usually, that information is simply blacked out so it cannot be read.
I got a speeding ticket but I don't want anyone to
know about it. Can my name to be removed?
No. The record of your ticket is part of the public record in the court system and will not be removed.
I bought property but I don't want my neighbors to
know what I paid. Is that public information?
Yes, and anyone can access that record through the data kept on property transfers.
My underage son/daughter was disciplined by the
school board. Can anyone know about it?
Usually, no. The privacy of students and minors is protected under the law. Most of the time, the school and legal records of minors are kept confidential.
I attended a closed session with county supervisors.
Can I reveal what I heard?
That depends. Usually, it's up to the supervisors themselves to decide whether to make a closed session discussion public.
I was appointed to a committee by supervisors to research a specific issue. Am I subject to FOIA laws?
Yes. You will be provided with a copy of the law within two weeks of your appointment, and your records and correspondence related to that assignment are public records. Also, the meetings held by that committee are subject to the same laws governing open and closed sessions, and providing notice of those meetings.
Does my school superintendent have to provide
records?
No. School superintendents are "managers" or "administrators," and their notes and records may be kept confidential.
What are the police required to provide?
There is a special section in the act that deals with criminal records. Police must provide "criminal incident information," which includes the date, general location and general description of felonies. Other records may be kept confidential, though, including ones being used in criminal investigations, those that would jeopardize undercover operations or expose an anonymous tipster, and those involving misdemeanors.
I work for a non-profit organization that receives
public money. Is my group subject to FOIA laws?
That depends. Usually, if the majority of the group is supported with public money, then it is subject to FOIA. But if only a minority of the group's money comes from public funds (i.e., state grants), then it is not considered a public body subject to FOIA. This can be a gray area.
What will it cost to get records?
The government can charge for the actual, reasonable cost of locating, copying and providing records. You can ask the government to itemize in advance approximately how much your request will cost. The government may ask you to make a deposit if the estimate is greater than $200.
Going to a public meeting
The public has a right to attend and record or film meetings, work sessions and retreats of all public bodies, which includes local governing bodies, state agencies and their committees, subcommittees and commissions.
How do I know about a meeting?
The law requires the government to post notice of an upcoming meeting in two prominent locations where other public notices are kept. Usually, notice is also posted in the local newspaper and on the government's Web site, if it has one. The notice must be given at least three working days before the meeting, and it must state the date, time and location of the meeting. If there is an agenda, at least one copy of it must be made available to the public at the same time the members of the public body get it. You may request that the public body send you notice of every upcoming meeting (see example). The government has some flexibility for notice, however, when there's a special or emergency meeting, but at least some kind of notice must still be given.
Must minutes be kept?
The government must usually take minutes at the meeting. Minutes are considered public records. Though minutes don't have to be in a specific format, they must, at a minimum, include the date, time and location of the meeting, which members of the public body were there and which ones weren't, a summary of the discussions and a record of any votes taken. All votes must be made in front of the public; no secret ballots are allowed, nor are binding votes taken in closed session.
What if the meeting is closed?
There are certain exemptions a public body may use to close meeting to the public, though there aren't as many exemptions as with records. Some frequently used exemptions are for discussions of: personnel matters involving specific individuals; the sale or purchase of real estate when a bargaining position could be jeopardized; consultation with legal counsel about probable or existing lawsuits; and certain discussions that require the public body to protect its negotiating strategy.
Before a public body may close a meeting, it must make a motion in open session identifying the subject matter, stating the purpose of the meeting and identifying the specific exemption that covers the topic. A general reference to the subject is not sufficient. The members of the public body must vote on the motion. No official action may be taken in the closed session.
When the public body comes out of the closed meeting, it must take another vote on a motion certifying that the topics identified in the motion for a closed session were the only issues discussed. If any member of the public body disagrees with the motion, and believes other topics were discussed, he or she should say why, and this reason has to be recorded in the minutes.
Enforcing your rights
The coalition explains, "If you feel you've been wrongfully denied a public record, if the government doesn't respond to your request for records, if you think the notice for a meeting or the topic of it was improper, there are a few things you can do. For starters, you can try to work out a mutually satisfactory agreement with the public body directly. You can ask the Freedom of Information Advisory Council to issue an oral or written opinion. The council's opinions are persuasive and its answers are generally respected by citizens and government alike. There is no charge for the council's help.
"If an amicable solution cannot be reached, a lawsuit is an option. Anyone can file a petition in general district or circuit court asking for an injunction or for a writ of mandamus, which is basically an order directing the government to do something. If you win against the government, you may be able to recoup your attorneys' fees and costs, and the public body (or government official) may be required to pay a fine."
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