The Virginia Freedom of Information Act (FOIA)

FOIA Topics of Discussion

• Public Meetings• Closed Meetings• Meeting Notices & Agendas• Electronic Communication

Meetings• Minutes• Public Records & 5-Day

Response Time• Computer Records• Record Fees• FOIA Penalties

Disclosure Statement

• This overview was prepared by staff and representatives of the Virginia Department of Conservation and Recreation for members of the Commonwealth’s Soil and Water Conservation Districts as a means of raising awareness and understanding about certain provisions of the Virginia Freedom of Information Act.

• It should be used as a companion reference to the Code of Virginia. It is not intended to serve as a legally binding interpretation of the act or its provisions. Should such an interpretation be needed, please contact your local Commonwealth’s Attorney. (October 2007)

FOIA Basics

• Found in Chapter 37 of Title 2.2 of the Code of VA.

• “…ensures the people of the Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies…”

• “The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.”

Are SWCDs Subject to the Act?

• YES!• Considered a public body, covered by

FOIA.−“Public body means any legislative body…

district or agency of the Commonwealth or of any political subdivision of the Commonwealth…” (Code §2.2-3701.)

PUBLIC MEETINGS

• “Open Meeting or Public Meeting means a meeting at which the public may be present.” (Code §2.2-3701)

Which district gatherings and/or meetings are considered open or public meetings?

Public Meetings Continued

• A gathering of 3 or more District Directors to discuss SWCD business is considered a meeting.

• Many meetings meet that criteria, including committee and emergency meetings.

• Even if no votes are taken, these meetings are open meetings.

• However, a “…gathering of employees of a public body shall not be deemed a “meeting” subject to the provisions of this chapter.” (Code §2.2-3701)

CLOSED MEETINGS

• “Closed Meeting means a meeting from which the public is excluded.” (Code §2.2-3701)

When are closed meetings allowed?

Closed Meetings Continued

• Closed Meetings are only allowed for certain purposes.

• 39 Purposes, Examples Include…− Personnel Matters − Consultation w/ Legal Counsel− Discussion of Special Awards

• Complete List found in the Code §2.2-3711.(A).

Closed Meeting Procedures

• SWCD board must be holding an open meeting.

• Director makes an appropriate Closed Meeting Motion.

• 3 Closed Meeting Motion Requirements (Code §2.2-3712)

1) Identify the subject matter.

2) State the purpose of the closed meeting.

3) Refer to the specific purpose (List of 39) that allows the closed meeting. (Code §2.2-3711)

MEETING NOTICES

• Every public body shall give notice of the date, time, and location of its meetings by placing notice in a prominent public location at which notices are regularly posted (see examples within the Code)… …The notice shall be posted at least three working days prior to the meeting.” (Code §2.2-3707.(C))

Meeting Notices Continued

What if the SWCD meeting is held on the same day, time, and place every month?

• The District may submit an annual written notice of the set meeting dates and post it in a prominent public location at which notices are regularly posted.

• However, if any changes are made to the day, time, or place, written notice of the changes must be displayed.

MEETING AGENDAS

• 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 made available for public inspection at the same time such documents are furnished to members of the public body.” (Code §2.2-3707(F))

• Exempt Items include personnel records. A complete list is found in the Code §2.2-3705.1.-§2.2-3705.8.

ELECTRONIC COMMUNICATION MEETING

May a quorum be achieved via electronic communication devices? • NO!• As a subdivision of the Commonwealth, a

quorum of district directors must be “physically assembled at one location” before any additional directors may join the meeting by phone.

(Code §2.2-3708)

MINUTES

Are recorded minutes required at all district meetings (including committee meetings)?

• YES!

• “Minutes shall be recorded at all open meetings”.

• Committee meetings with 3 or more directors are open meetings and minutes are required.

• All other records of open meetings including draft minutes and audio recorded records are also considered public records. (Code §2.2-3707(I))

PUBLIC RECORDS

• “Public records means all writings and recordings which consist of letters, words or numbers…set down by handwriting, typewriting, printing,…mechanical or electronic recording or other form of data compilation…prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.” (Code §2.2-3701)

Public Records Continued

What records may the public see?

Are there any exclusions?

• The Act states that “all public records shall be open to inspection and copying by any citizens of the Commonwealth during regular office hours…”

• There are over 100 exclusion categories listed under Code (§2.2-3705.1.-§2.2-3705.7.). Examples include medical and personnel records.

Public Records Continued

Are SWCD employee salaries open to public access?

• YES. The “records of the position, job classification, official salary or rate of pay of…any officer, official or employee of a public body…” are open to the public as long as the employee makes more than $10,000 a year. (Code §2.2-3705.8)

Is one employee allowed to know the official salary of another employee?

• YES. As long as the employee making the request is a citizen of Virginia. (Code §2.2-3704.(A))

PUBLIC RECORDS: 5-DAY RESPONSE TIME

• Must respond to a request within 5 working days.

• 4 different responses a district may make. (Code §2.2-3704)

Is a district allowed to ask the requester why records are needed?

• NO.

• VA Supreme Court ruled the motive for a record request is irrelevant. Requester is not obligated to reveal why records are needed.

COMPUTER RECORDS

Is the district required to process a request for records stored on the computer?

• Yes.

• Districts must provide computerized records unless the records are considered “exempt”. (Code §2.2-3704)

RECORD FEES

• “A public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying,…the requested records…Any duplicating fee charged…shall not exceed the actual cost of duplication…” (Code §2.2-3704(F))

If the district has a request for records and the cost to access and duplicate them will be over $200 may they ask for money up front?

Record Fees Continued

• YES.

• “In any case where a public body determines in advance that the charges…are likely to exceed $200, the public body may,…require the requester to agree to payment of a deposit not to exceed the amount of the advance determination.”

• In addition, “Before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing.” (Code §2.2-3704 (H))

FOIA Penalties

• If the court finds that a member of a public body “willfully and knowingly” was in violation of this act, “…shall impose upon such member…a civil penalty of not less than $250 nor more than $1,000, which amount shall be paid to the State Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $1,000 nor more than $2,500.” (Code §2.2-3714)