Freedom of Information and "Open Government"

Question 1

The VA Freedom of Information provides that all public records shall be open to inspection and copying and that “[a]ccess to such records shall not be denied,” unless…

Answer 1

otherwise specifically provided.

Question 2

The purpose of the VA Freedom of Information Act is to…

Answer 2

promote increased awareness of governmental activities to and afford every opportunity to citizens to witness the operations of government.

Question 3

Who can make a FOIA request for information, whether documentary or otherwise, involving papers or electronic records and databases?

Answer 3

Any Virginia citizen.

Question 4

What can be used to make a FOIA request?

Answer 4

Any form of writing, even email.

Question 5

What are the only two governmental bodies that are generally beyond the reach of FOIA requests?

Answer 5

juries and the Crime Commission

Question 6

In all cases, when must the governmental body respond to the FOIA request?

Answer 6

within 5 days

Question 7

How must the FOIA request be responded to?

Answer 7

1. Requested records provided to the requester.
2. Requested records withheld due to prohibition by law/statutory discretion
3. Requested records provided/withheld in part due to reason in #2. (must ID subject matter of withheld portions, and can only delete the portions to which the exemption applies)
4. Records cannot be found/do not exist. (if another public body requested the records, the response must incl. contact info for the other public body).
5. It is not practically possivle to provide the requested records or to determine whether they are available w/i the 5 day period. (If this form is made within 5 working days, public body gets an add’l 7 working days)

Question 8

Failure to respond to a request for records is, by statute, automatically deemed a denial of the request and shall…

Answer 8

constitute a violation of the Virginia FOIA.

Question 9

Around ___ types of records are exempted from disclosure by statute.

Answer 9

100

Question 10

What are the main categories of exempted record types?

Answer 10

1. personnel records
2. written advice of counsel, legal memoranda and “work product” about investigations
3. criminal and administrative investigative records
4. testing results for students and license applicants
5. proprietary computer software of a vendor working for the locality * property appraisals
6. personal information” such as SSNs, financial, credit card, tax, or medical information
7. building design
8. security systems and anti-terrorism plans
9. trade secrets and similar confidential proprietary information

Question 11

The FOIA expressly states that any exemptions withholding public access to records must be…

Answer 11

narrowly construed.

Question 12

The Virginia FOIA places the burden of proof for the exemption on the public body. The standard is..

Answer 12

preponderance of the evidence.

Question 13

none of the exemptions can prevent access to these categories of records:

Answer 13

1. contracts between a 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;
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 consultant’s report.

Question 14

In general, the FOIA requires all transactions of public business to be held…

Answer 14

by votes at public meetings.

Question 15

The FOIA provides that all meetings of publiuc bodies shall be open, and not conducted through…

Answer 15

telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business.

Question 16

By statute, at least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be…

Answer 16

made available for public inspection at the same time such documents are furnished to the members of the public body.

Question 17

The FOIA requires that _______ be taken at all regular open meetings.

Answer 17

minutes

Question 18

Minutes, including draft minutes, and all other records of open meetings, including audio or audio/visual records, (are/are not) public records subject to FOIA requests.

Answer 18

Are

Question 19

No closed meeting may be held by a Virginia public body, unless the public body has:

Answer 19

Taken an affirmative recorded vote in an open meeting:

1. identifying the subject matter,
2. stating the purpose of the meeting, and
3. making specific reference to the applicable FOIA exemption from open meeting requirements.

Question 20

By statute, no meeting may be closed to the public, unless the meeting is…

Answer 20

specifically made exempt pursuant to the Act or other specific provision of law.

Question 21

The FOIA lists __ circumstances in which a “closed meeting” is permitted.

Answer 21

45

Question 22

The most common occurrences for which a closed meeting is permitted includes:

Answer 22

1. employment applications and personnel decisions
2. disposition of publicly held property
3. private matters not related to public business
4. discussion with counsel about “actual or probable litigation”
5. tests and examinations
6. hazardous waste siting
7. public contracting (interview of bidders, negotiation)

Question 23

What must the public body do at the conclusion of any closed meeting?

Answer 23

Immediately reconvene in an open meeting and take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member’s knowledge:

1. only public business matters lawfully exempted from open meeting requirements under this chapter, and
2. only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body.

Question 24

Unless a specialized statute applies, the FOIA requires any votes on public business to be taken…

Answer 24

in an open meeting. (if closed meeting occurs, must reconvene, identify issue, and take votes)

Question 26

Any failure by a public body to follow the procedures established by the FOIA is…

Answer 26

presumed to be a violation of the Act.

Question 27

Any citizen who has been denied rights and privileges under the FOIA (incl. Commonwealth’s atty) may…

Answer 27

file a petition for mandamus or injunction, supported by an affidavit showing good cause.

Question 28

The petition for mandamus or injunction must allege the denial of information with…

Answer 28

reasonable specificity

Question 29

Under the FOIA even a single instance of failure to produce required information is sufficient to…

Answer 29

trigger the mandamus and injunctive remedies.

Question 30

In a mandamus or injunctive action regarding public records, the public body has the burden of proof to show an extemption using this standard.

Answer 30

Proponderance of the evidence.

Question 31

If the petitioner challenging the governmental body substantially on the merits and the court finds that the governmental body has violated the FOIA, the petitioner is automatically entitled to recover…

Answer 31

reasonable costs, including costs and reasonable fees for expert witnesses, and attorneys’ fees from the public body.

Question 32

When can the petitoner not recover costs after winning on the merits?

Answer 32

“special circumstances” would make an award unjust.

Question 33

What factors may a court use to determine whether awarding the petitioner costs would be unjust?

Answer 33

Whether the public body was relying upon an opinion of the Attorney General or a decision of a court that substantially supports the public body’s position (among other less common reasons).

Question 34

The e Supreme Court has held that the following are not circumstances precluding the award of attorneys’ fees to a prevailing petitioner:

Answer 34

1. the governing body’s procedure has been followed for several years and no one has previously complained;
2. the violation was not willful and knowing;
3. another court may have found that the practice was not impermissible, and
4. extensive research on FOIA and its requirements did not indicate a problem with the procedure.

Question 35

The Supreme Court of Virginia has held that a governmental body responding to an FOIA request may charge reasonable amounts for:

Answer 35

1. copying or printing charges
2. the cost of for searching for responsive records, and
3. the cost of analyzing the records located in order to determine their producibility in light of the statutory requirements and the many statutory exemptions for specific categories of records.