The Virginia Freedom of Information Act guarantees citizens of the Commonwealth and representatives of the media access to public records held by public bodies, public officials and public employees. The VBOA maintains records pertaining to CPA examination and licenses.
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 only be withheld if a specific, statutory exemption applies. Certain types of personally identifying information may be withheld at the VBOA’s discretion.
The policy and purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.
Records may be requested by U.S. mail, fax, email, in person, or over the phone. FOIA does not require requests be in writing, nor specifically stating it is a FOIA request.
Individuals have the right to request any charges for the requested records be estimated in advance.
If an individual believes FOIA rights have been violated, a petition may be filed in district or circuit court to compel compliance with FOIA. Alternatively, the individual may contact the FOIA Council for a nonbinding advisory opinion. The FOIA Council also provides an online public comment form on their website regarding assistance to a requested record.
Making a request for records from the VBOA
An individual has the right to request to inspect or receive copies of public records, or both.
The request must identify the requested records with “reasonable specificity.” This is a common-sense standard. It does not refer to or limit the volume or number of records requested; instead, it requires that an individual be specific enough so the VBOA can identify and locate the appropriate records.
The request must ask for existing records or documents. FOIA gives the right to inspect or copy records; it does not apply to a situation where general questions about the work of the VBOA are asked, nor does it require the VBOA to create a record that does not exist.
Records can be received in any format used by the VBOA in the regular course of business.
Making a FOIA request is not an adversarial process. The VBOA may need to discuss or clarify requests with individuals.
The request for records can be made to the VBOA Information and Policy Advisor Steven Burkarth. Burkarth can be reached by mail at 9960 Mayland Drive, Suite 402, Henrico, VA 23233, email at firstname.lastname@example.org, phone at (804) 367-1568, or fax at (804) 527-4409.
In addition, the Freedom of Information Advisory Council is available to answer any questions about FOIA. The Council may be contacted by email at email@example.com or by phone at (804) 225-3056 or 1-866-448-4100.
VBOA’s responsibilities in responding to requests
The VBOA must respond to requests within five working days of receiving it. Day 1 is considered the day after the request is received. The five-day period does not include weekends or holidays.
The reason for the request of records does not need to be given. FOIA does allow the VBOA to require the individual provide a name and legal address.
FOIA requires the VBOA make one of the following responses within the five-day time period:
- The VBOA provides the requested records in their entirety.
- The VBOA withholds all the records requested, because all of the records are subject to a specific statutory exemption. If all the records are being withheld, the VBOA must send the individual a response in writing. That writing must identify the volume and subject matter of the records being withheld and state the specific section of the Code of Virginia that allows withholding.
- The VBOA provides some of the records requested, but withholds others. The VBOA cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, the VBOA may redact the portion of the record that may be withheld, and must provide the individual with the remainder of the record. A written response must be provided that states the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
- The VBOA informs the individual, in writing, that the requested records cannot be found or do not exist. However, if the VBOA knows another public body has the requested records, they must include contact information for the other public body in the response.
- If it is practically impossible for the VBOA to respond to the request within the five-day period, they must state, in writing, the conditions that make the response impossible. This will allow an additional seven working days, giving a total of 12 working days to respond.
If the request is for a large number of records and the VBOA feels they cannot provide the records within 12 working days without disrupting the other organizational responsibilities, the VBOA may petition the court for additional time to respond to the request. However, FOIA requires making a reasonable effort to reach an agreement concerning the production of the records before going to court to ask for more time.
The individual may have to pay for the records requested from the VBOA. FOIA allows the charge for the actual costs of responding to FOIA requests. This would include items such as staff time spent searching for the requested records, copying costs, or any other costs directly related to supplying the requested records. It cannot include general overhead costs. The individual may request an estimate in advance.
If the VBOA estimates it will cost more than $200 to respond to a request, they may require a deposit, not to exceed the amount of the estimate, before proceeding with the request. The five-day time period does not include the time between asking for a deposit and the response.
If an individual owes money from a previous FOIA request that has remained unpaid for more than 30 days, the VBOA may require payment of the past due bill before it will respond to a new FOIA request.
According to Code of Virginia § 2.2-3704.1, a public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of Code of Virginia § 2.2-3704.