I am currently the FOIA officer for a locality in Virginia. I have been asked by several people to post information on FOIA – what it is, what is it important, and how to file a request. Let me state that I am not a lawyer. In addition, my knowledge of FOIA deals with Virginia law. Please check your state code for more information.
What is FOIA?
FOIA stands for the Freedom of Information Act. Sometimes you hear it called the “Sunshine Law” or “Open Records Law.” Passed in 1967, the act allows the public to make requests for copies of or to view records from any federal agency, (with some exemptions). It also requires governments to post information about public meetings.
Before 1967, a citizen could walk into a government building and ask to see, say a site plan for a proposed development. The government employee could produce the plan, but could also tell the citizen to take a hike. In addition, the mayor of a locality could call a meeting at the local bar to conduct town business and citizens would not even know what was going on. I like to imagine a bunch of middle-aged men, sitting around, smoking cigars and drinking whiskey in the back room of some local dive while deciding which of their buddies would get a contact to build the new high school.
After the act passed, states started passing their own state-specific versions. The Virginia Freedom of Information Act was passed in 1968. No more back room meetings. No more hiding documents. Basically, no more secrets.
Journalists have been using FOIA for the past 50 years to uncover government misdealings, injustices, and more. But many citizens do not even know about FOIA and why it is important. Here is an example of how FOIA can help the average citizen.
Let’s say you want to buy a property. You can put in a FOIA request for documents related to environmental inspections on the site. If the locality ever did any inspections, you can find out if there are hazards on that property before you decide to buy. Was it a Superfund site? Did hazardous waste leak on the property? Is there a stream running under it? If it was recorded in some format, you have the right to get copies of view the records.
In another example, a builder wants to build next to your children’s’ school. You would like to speak to council about the project. FOIA requires that all public body meetings be advertised in advance and open to the public. So you find out the meeting is coming up and make preparations to go and speak. Of course, the night of the council meeting on the project, your child gets sick and you cannot go. FOIA requires that minutes are taken at that meeting. You can request copies of the minutes.
What is the law in Virginia? I split it up into two parts: meetings and records.
Usually when someone thinks about FOIA, they think about records. In Virginia, FOIA also includes notice of public meetings. Meetings must be advertised, open to the public, and minutes must be taken.
A gathering by a public body is considered a meeting when:
- The group is sitting as a public body (council meetings, work sessions, etc.)
- Three or more of the members are together informally (parties, community meetings, etc.) AND public business is discussed
- There is a quorum (the minimum number of members needed to make decision) if the body has less than three members.
It is not a meeting when:
- The meeting was not pre-arranged to discuss public business
- No purpose is to discuss public business
- It is a gathering of public employees.
Public bodies can hold closed meetings, but only if all three of the following are mentioned at a public meeting in a motion for a closed meeting:
- The purpose (usually personnel or legal matters)
- The subject (name of person or subject of legal issue)
- Cite the code allowing for the closed meeting.
When it comes to enforcing FOIA, the burden of proof is on the public body. Anyone feeling the meeting did not follow FOIA can file suit. If found guilty, the person who did not promote the meeting or who is at fault will have to pay the fine. Note I wrote “the person.” Not the public body, but the person who violated FOIA. Ouch.
Anything that can be recorded and is part of public business is a record. Meeting notes, photographs, videos, emails, text messages, social media posts – all are records. But it has to be part of public business. If I email my boss about a development coming to the area – that is public business. If I email my husband from my work account about who will pick up the kids later, that is NOT public business. If I email my boss and talk about the development and in the same email say that I have tickets to a concert – the first part is public business and the second is not. The second part can be redacted for a FOIA request.
In addition, a record is something that does not have to be created. You cannot make a FOIA request for all meeting minutes for future meetings. In addition, retention laws allow governments to destroy records after a certain amount of time. In Virginia, that is determined by the Library of Virginia. If you ask for the original site plans for a building from 1923 chances are that site plan does not exist anymore.
When a Virginia resident or any member of the media makes a FOIA request, the government has to produce the records requested within five working days – with the first day starting the day after a request is made. This keeps people from making a request at 11:59 p.m. on a Friday and therefore making the request difficult to fill. There are five responses the government can give:
- Here are the records
- We need more time, (and state why the extension is needed and cite law showing a request for more time can be made). In this case, the government automatically gets seven more working days.
- Here are some of the records requested (provide redacted record and cite law showing why it cannot be released – this should be provided in writing)
- No you cannot have these records because by law, they are exempt or portions will be exempt (cite law showing why it cannot be released – this should be provided in writing)
- The records do not exist or cannot be located (this should be provided in writing).
There are many exemptions under FOIA and it varies from year to year and from state to state. In some cases, just because a government does not HAVE to provide it under FOIA does not mean it should not. But if it is prohibited by law – it cannot be provided. A lot of records that cannot be provided deal with minors, ongoing criminal investigations, social security numbers, and personal information.
FOIA is great for encouraging open government and making things easily accessible. But FOIA requests can come at a cost to the requester. FOIA allows governments to reasonably charge for requests. For example, if a citizen asks for a copy of a recent resolution, if I can pull that up and email it in about five minutes. I am not charging for that. If a citizen asks for a copy of all resolutions made within a calendar year, then that will take more time. If it takes three hours of my time, I would charge my hourly rate times three. What I cannot do is have my supervisor, who is paid more, fill the request and charge her hourly rate when I could have done the job just as easily. I also cannot charge for benefits like health and retirement – just the basic hourly rate of the lowest paid person who can fulfill the request.
Things get more complicated when it comes to records that involve multiple people. What I do, and suggest in any case where a fee is attached, is to respond to the requestor what the fee is and break down the fee. I usually do it by item requested and by hourly rate. It helps to prevent confusion. By the way, until I hear back from the requestor on if it is OK to fill the request at the fee charged, the five days to fill a request stops and restarts when I get the OK.
If a request is over $200, governments can request a deposit before filing the request. They can also request a deposit if it is a request from someone outside of the state who is not a member of the media. Also – if the request is made from someone outside of state, the time requirement goes away and the request can be denied. However, I recommend governments fulfill the request, because all it takes is for that person to have a friend in state make the request for him.
A FOIA request can also be denied if the requester owes money for past requests.
Once again, if a government is found in violation of FOIA – the burden of proof is on the government. Anyone feeling the government is in violation can file suit. If found guilty the person who is at fault will have to pay the fine.
How do you make a FOIA request?
In Virginia, there is no official way to make a request. You do not have to fill out a form or say “I want to make a FOIA request.” All you need to say is “I want to see” or “I want copies of” and that should suffice. However, to make things easier on you, this is what I suggest.
- Find out who the FOIA officer is. Virginia passed a law in 2016 stating that each locality must have a designated FOIA Officer. The Virginia Freedom of Information Advisory Council has a list of FOIA Officers.
- Make the request to the FOIA Officer in writing. Once again, this is not required, but it can help expedite the request.
- State that what you are requesting is a FOIA request.
- Be as specific as possible. A good FOIA Officer will let you know if your request is too broad and will be expensive.
- Put your contact information in the request.
The Virginia Freedom of Information Advisory Council has a good example of a request letter (Word document).
If you have FOIA questions or see something that is incorrect in this information, feel free to contact me.