FOIA and Open Government Flashcards
Virginia Freedom of Information Act
Va. FOIA provides that unless otherwise specifically exempted, all public records shall be open to inspection and copying and that access to such records should not be denied
FOIA Requests
any citizen can make FOIA request for information, whether documentary or otherwise, involving papers or electronic records and databases. Any form of writing may be used to make the request. Only juries and the Crime Commission are generally beyond the reach of FOIA requests.
responses to FOIA requests
By statute, the public body’s response must be made within 5 working days of receiving a request with one of the following responses:
- requested records will be provided to the requester
- requested records are being entirely withheld because their release is prohibited by law or discretion granted by statute
- requested records are being provided in part and are being withheld in part
such response will identify with reasonable particularity the subject matter of withheld portions and cite the specific code sections authorizing withholding.
- requested records could not be found or do not exist - but include contact info for other government body that has info
- not practically possible to provide in 5 days - most give reasons why it’s not possible - then body gets additional 7 days
failure to respond to FOIA request
deemed a denial of the request and a violation of the law
exempt from foia
personnel records
written advice of counsel, legal memoranda, work product about investigations
criminal and administrative investigative records
testing results for students and license applicants
proprietary computer software of vendor working for the locality
property appraisals
personal information like SSNs, etc.
building design
security systems and anti-terrorism plans
trade secrets and similar confidential proprietary info
assured access
none of the exemptions can apply to:
contracts btwn public body and its officers or employees, records of the position, job classification, official salary or rate of pay of, and records of the allowances or reimbursements for expenses paid to any official or employee
nonexempt portions of a report of a consultant hired by or at the request of the local public body which have been distributed to members of the local public body or local public body has scheduled action on matter of the report
public meetings
FOIA prohibits any transaction of public business other than by votes at public meetings. it provides that all meetings of public bodies shall be open and that no meeting may be conducted through telephonic etc means where members are not physically assembled to discuss or transact public business
agenda materials for public meetings
at least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body fora meeting shall be made available for public inspection at the same time such documents are furnished to members of the public body
minutes
FOIA requires minutes be taken of all regular open meetings - these are public records subject to FOIA
closed or executive sessions
no closed meeting may be held unless it has taken an affirmative recorded vote in an open meeting identifying the subject matter, stating the purpose of the meeting, and making specific reference to the applicable FOIA exemption from open meeting requirement.
at the conclusion of any closed meeting, the public body must immediately reconvene in an open meeting and take roll call or other recorded vote to be included in minutes certifying that to the best of each member’s knowledge, only matters lawfully exempted and only matters as were identified in motion convening closed meeting were heard, discussed, or considered
circumstances in which a closed meeting is permitted
employment applications and personnel decisions
disposition of publicly held property
private matters not related to public business
discussion with counsel about actual or probable litigation
tests and examinations
hazardous waste siting
public contracting
votes
unless specialized statute applies, FOIA requires no vote of any kind be taken to authorize the transaction of any public business except in open meeting. even fi closed session is permitted, FOIA expressly provides that no resolution, ordinance, rule, contract, regulation, or motion approved in closed meeting shall become effective unless the public body reconvenes publicly and reasonably identifies the substance of the issue and takes a vote in the open meeting
enforcement of FOIA
any failure of public body to follow procedures is presumed to be in violation of the act. any citizen who has been denied rights and privileges under the act and the attorney for the Commonwealth may file a petition for mandamus or injunction, supported by affidavit showing good cause. petition must allege denial with reasonable specificity. under the act, even a single instance of failure to produce required info is sufficient to trigger mandamus and injunctive remedies. public body has burden to establish exemption by preponderance of the evidence
recovery of costs and attorneys’ fees by requesting party
if court finds government violated FOIA, petitioner if entitled to recover reasonable costs, including for expert witnesses and attorneys, from the governing body if petitioner substantially prevails on the merits unless special circumstances would make award unjust.
following do not preclude awarding attorneys fees:
- governing body’s procedure has been followed for years and no one complained
- violation was not willful and knowing
- another court may have found the practice was not impermissible
- extensive research on FOIA and its requirements did not indicate problem with procedure
governmental charges for reviewing and producing recordsd
governmental body responding to FOIA request may charge reasonable prices for copying or printing, cost of searching for responsive records, and cost of analyzing records to determine whether they can produce in light of requirements and exemptions
