freedom of information act (foia) Flashcards
gist of the VA FOIA
all public records shall be open to people for copying, unless otherwise stated
access to such records shall not be denied
purpose is to allow us to witness the operations of government
process of making foia requests and receiving a response
(1) any citizen can make the request
(2) any form of writing can make the request (even email)
(3) juries and crime commission are beyond reach of FOIA requests
(4) public body will respond “promptly, but within 5 working days of receiving a request”
(5) the response by the public body will be one of the following:
(a) requested records will be provided to the requester
(b) records will be withheld
(c) records will be provided in part or withheld in part
[^must identify with reasonable particularity the subject matter of withheld portions and cite the code sections that authorize withholding. public body may delete or excise only that portion of the record and must release the remainder]
(d) requested records could not be found or do not exist
(e) it is not practically possible to provide the records or determine whether they are available within 5 working days
[^ must specify conditions that make response impossible; public b body is allowed 7 more working days to provide one of the first four responses]
failure to respond to a request for records
violation of the virginia foia law
A transportation authority’s responses that it had “contacted” anoth- er governmental body and “will respond . . . upon receipt of advice from that agency,” and that another request had been “referred
to its legal counsel” did not meet the requirements of Code §2.2- 3704(B).
main exemptions under FOIA
- Personnel records
- Written advice of counsel, legal memoranda and “work product” about investigations
- Criminal and administrative investigative records
- Testing results for students and license applicants
- Proprietary computer software of a vendor working for the locality
- Property appraisals
- “Personal information” such as SSNs, financial, credit card, tax, or medical information
- Building design
- Security systems and anti-terrorism plans
- Trade secrets and similar confidential proprietary information
how to construe exemptions
exemptions withholding public access to records must be narrowly construed.
FOIA places the burden of proof on the public body “to establish an exemption by a preponderance of the evidence.”
assured access categories of records
none of the exemptions can prevent access to these
(1) Contracts between a public body and its officers or employees, records of the position, job classification, official salary or rate of pay, and records of the allowances or reimbursements for expens- es paid to any official or employee
AND
(2) The nonexempt portions of a report of a consultant hired by or at the request of a local public body which have been distributed to members of the local public body or if the local public body has scheduled any action on a matter that is the subject of the consul- tant’s report.
FOIA requirements for public meetings
(1) public business must be transacted through votes at public meeting
(2) Public meetings shall be open
(3) public meetings cannot be conducted electronically - must be physically assembled
(4) agenda materials must be made available for public inspection at the same time the members of the council/body are receiving them for the meeting
(5) minutes must be taken at all regular open meetings - public records subject to FOIA request [includes draft minutes and audio]
requirements for closed or executive sessions
GENERAL RULE – No meeting may be closed to the public unless exempt pursuant to the FOIA statute or other law
REQUIREMENTS IF CLOSED MEETING FITS EXEMPTION:
VA public body must take affirmative recorded vote in an open meeting
(1) identifying subj matter
(2) stating purpose of the meeting
and
(3) making specific reference to the applicable FOIA exemption from open meeting requirements
AND
at the conclusion of the closed meeting, public body must immediately reconvene in an open meeting and take roll call or other recorded vote certifying that, to their knowledge:
only public business matters lawfully exempted were discussed
circumstances in which meetings may be closed under foia
Discussions of:
- Employment applications and personnel decisions
- Disposition of publicly held property
- Private matters not related to public business
- About “actual or probable litigation” with counsel
- Tests and examinations
- Hazardous waste siting
- Public contracting (interview of bidders, negotiation)
** if you have a private meeting for these, you must come back to reconvene the public meeting and hold a vote and reasonably identify the substance
what does VA FOIA say about votes
public bodies can only vote to authorize transaction of public business in an open meeting
if there is a permitted closed session, the body must reconvene in the open meeting and
(1) reasonably identify the substance of the issue
and
(2) vote in the open meeting
enforcement of foia
- when is there a violation
- who has standing
- procedural requirement
- burden of proof
Any failure by a public body to follow the procedures established by the FOIA is “presumed” to be a violation of FOIA
public body has burden to establish exemption by preponderance of the evidence
any citizen who has been denied rights / privileges under the act may file petition for ____ supported by affidavit showing good cause which alleges the denial with “reasonable specificity”
(1) mandamus
(2) injunction
even a single instance of failure to produce required information is sufficient to trigger the mandamus and injunctive remedies
if court finds that government body violated FOIA, what is petitioner entitled to recover
Costs, including costs and reasonable fees for expert witnesses, and attorneys’ fees from the public body if the petitioner “substantially prevails” on the merits, unless “special circumstances” would make an award unjust.
SCOVA has said that these circumstances DO NOT PRECLUDE attorney’s fees:
*The governing body’s procedure has been followed for several years and no one has previously complained
*The violation was not willful and knowing
*Another court may have found that the practice was not impermis- sible
AND
*Extensive research on FOIA and its requirements did not indicate a problem with the procedure
may the government charge you for reviewing and producing records
yes
reasonable amounts for copying, printing, searching, analyzing etc.
big topics
VA FOIA SUPER BROAD
– only va citizens or media reps can exercise it
– respond within 5 days or the explanation about who is entitled etc.
– you can foia any public body
– every public body has a foia person to foia – you must foia the specific public body
— GDC has original jurisdiction
– only public records
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 or its officers, employees or agents in the transaction of public business. All public records are presumed to be open, and may be withheld only if a specific, statutory exclusion applies.
