The Central Virginian

Follow Us On:

A Citizens’ Guide: Understanding Freedom of Information Act laws

Posted on Thursday, March 15, 2018 at 3:16 pm

Several years ago, a reporter I worked with complained about a response he’d received to a Freedom of Information request he’d filed with a government body.

The response had been a polite note that simply explained that to fulfill the entire request would cost more than $2,000 and suggested that perhaps the reporter could narrow the scope of the request.

The request, I found, was overly broad and filled with such phrases as “every document containing” certain words. I asked him to explain exactly what he wanted and he said it was a specific report that the government had completed but had not made public. He added that he didn’t want government officials to figure out what he wanted and that’s why he made the request so broad.

We rewrote his request and he eventually received the report for under $25.

Making a FOIA request is not a scientific undertaking, but there are some strategies to making a request.

First, understand FOIA. The actual law itself can be found at 2.2-3700 of the Code of Virginia. It’s clearly not pleasure reading and, of course, it contains quite a bit of legalese. But the law must be considered.

Under Virginia’s FOIA, the agency has five working days to respond to a request and the response, in writing, should be one of the following: 1. Here’s the record you wanted; 2. We are withholding the record because it is exempt from disclosure (The exact section of the code that makes it exempt must be noted); 3. Part of it can be released and part of it is exempt; 4. The records could not be found or do not exist; 5. It will take more than five working days to respond to the request. In writing, the agency must explain why it would take longer and then it can claim an extension of seven working days.

If the agency fails to respond at all to the request, it is considered a violation of the law and the agency is subject to fines.

There is not a perfect way to make a FOIA request. A lot depends on the agency and the relationship the requestor has with the agency. A few years ago, the state began requiring that each agency designate a FOIA officer­—a go-to person who is supposed to be trained on FOIA and who knows either how to get the records or who knows whom else to ask.

Should FOIA requests be in writing?

That depends. Virginia law does not require a written request. For example, if a requestor has a good relationship with the agency, a phone call may be all it takes. If the request is complicated, such as in-depth details of a municipal budget, a written request may be more helpful.

There are other reasons for a written request. It can be used as evidence in case the matter ends up in court. For the same reason, it can also be helpful to hand-deliver a written FOIA request or send it via registered mail. That way, you know for certain when the request was received by the agency.

Before filing a FOIA request, it’s a good idea to check the agency’s website because the information being sought could already be available online.

How much can an agency charge to respond to a FOIA request?

The agency can charge only the cost of searching for, copying and providing the requested records. If the cost is estimated to be $200 or more, the government can require that the requestor make a deposit for that amount.

The requestor, on the other hand, can ask that the agency present an itemized explanation of the charges. Sometimes, an agency will not charge anything.

Is there help available to someone who may not understand FOIA?

Yes, there is. The nonprofit Virginia Coalition for Open Government has a website that explains the law and has a wealth of information on court cases and legal opinions on FOIA. The phone number is (540) 353-8264 and the website is opengovva.org The executive director is Megan Rhyne.

A state agency, the Virginia Freedom of Information Advisory Council, issues advisory opinions, provides guidance to requestors, the public and government agencies via email and through its website. It has a toll-free phone number, (866) 448-4100, and its website is foiacouncil.dls.virginia.gov. The executive director is Alan Gernhardt. The website contains all the opinions it has issued through the years.

Is there a way to enforce the FOIA laws?

Yes, you can take the offending agency or employee to court. Under FOIA, the burden is on the government to prove that its action was within the law.

A petition can be filed in general district court or circuit court. The district court does not require that a lawyer represent the plaintiff, but if the government loses, it likely will take the case to the circuit court, where a lawyer would be necessary.

The case is civil—not criminal—and it will be decided by a judge—not a jury. If the judge finds the law was willfully and knowingly violated, he can assess fines from $500 to $2,000. And, if the government loses, the court can require it to pay the legal fees of the plaintiff.

Dick Hammerstrom is a retired journalist and current president of the Virginia Coalition for Open Government, www.opengovva.org