virginia

Virginia

In the past several years, Virginia has amended its Freedom of Information Act to allow requesters to obtain data in a requested format, has required state agencies to keep a catalog of their databases, has posted court information online and has created a FOI Advisory Council to issue nonbinding opinions. The General Assembly also has created various committees to spearhead the issues associated with electronic public records.
However, when it comes to the practical application of the state FOIA, reporters are frustrated by inconsistencies, the many (87) exemptions to the law and what often are steep charges for records.

The law. Last updated in 2002, Virginia FOIA considers public records to be all "writings and recordings . . . however stored, regardless of physical form or characteristics" held by government employees while transacting public business. Va Code Ann. § 2.2-3701. In order to "encourage and facilitate" FOIA compliance, Virginia amended the Virginia code in 2000 to create a FOI Advisory Council. §§ 2.1-346.2 - 346.5.

Every government agency is required to maintain a catalog of all databases created since 1997. § 2.1-342. Some reporters call the catalog the "precursor to getting electronic records," though they note that some agencies merely record databases created after 1997 while they continue to regularly use older databases.

The state created a Joint Subcommittee Studying the Protection of Court Records in 2002 and extended the study two years in February 2003 (HJ 631). While court information was largely online, including land records, the 2003 General Assembly limited personal information posted online beginning in 2004 with a July 2005 sunset provision.

Information may be available on a fee-based subscription basis under a system developed by the Department of Technology Planning with the input of circuit court clerks, court administrators and the public. The system would also ask for the requester’s "purpose of access."

While the statute says that agencies are not required to produce records in an electronic format "not regularly used" by the agency, agencies should make "reasonable efforts" to offer the electronic records in the medium requested "including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address." Va. Code Ann §2.2-3704.

When both exempt and nonexempt information are contained in requested records of an electronic or other database, the agency may release the exempt information if not otherwise proscribed. While the agency does not have to offer the exempt data, the agency must provide access to the nonexempt records. The deletion of exempt information or the use of a different medium is not considered the "creation, preparation or compilation" of a new public record. Agencies may deny access if work entails creating a new record. Va. Code Ann §2.2-3705

Cases & opinions. In Virginia, the Freedom of Information Advisory Council issues advisory opinions on public records access.

Circuit court clerks have the "statutory duty to provide copies of digital databases of all records requested" unless the records are otherwise prohibited from disclosure. Va. Op. Att’y Gen. 02-095 (Dec. 19, 2002). While an agency may deny a FOIA request because the request requires the creation of a new record (i.e. the combining of two databases), the requester is entitled to the raw data to recreate the initial request on their own. FOI Advisory Council Adv. Op. 11-00 (Dec. 12, 2000).

Record custodians may create new records at their discretion but may not charge for the new record without prior notification. FOI Advisory Council Adv. Op. 49-01 (Dec. 17, 2001).

Fees. Government agencies may make "reasonable charges for its actual cost of accessing, duplicating, supplying or searching" for the records.

The agency may not charge extra fees to recoup the cost of maintaining and creating records. Va Code Ann. § 2.2-3704F

However, on the issue of record fees, many reporters find the statute application spotty at best. In one instance, Virginian-Pilot reporter David Gulliver requested a year’s worth of data in five counties from the Department of Motor Vehicles, information that would have been free in Ohio where he worked previously. The agency billed the newspaper $18,000 for the data. While he managed to negotiate the price down to $800 and later to "practically nothing," he said fees vary by cities and agencies, due to the unspecific law. When Gulliver requested data from one city, it charged $500, whereas another city billed merely the price of the CD for similar information.

Software. Software developed by a private vendor as well as software created by or for a "state agency, state-supported institution of higher education or political subdivision of the Commonwealth" is exempt from Virginia FOIA. Va Code Ann §2.2-3705

E-mail. E-mail between government employees related to public business is a public record. However, messages from government agency e-mail, regardless of subject, do not necessarily make them public records. FOI Advisory Council Adv. Op. 1-00 (Sept. 29, 2000).

Resources. Virginia Freedom of Information Council