Freedom of Information Act (FOIA)

The Rights of Requesters and the Responsibilities of the Town of Broadway under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (FOIA), located § 2.2-3700 et seq. of the Code of Virginia, guarantees citizens of the Commonwealth and representatives of the media access to public records held by public bodies, public officials, and public employees.

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.

The policy of FOIA states that the 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.

Your FOIA Rights

• You have the right to request to inspect or receive copies of public records, or both.
• You have the right to request that any charges for the requested records be estimated in advance.
• If you believe that your FOIA rights have been violated, you may file a petition in district or circuit court to compel compliance with FOIA. Alternatively, you may contact the FOIA Council for a nonbinding advisory opinion.

Making a Request for Records from the Town

• You may request records by U.S. Mail, fax, e-mail, in person, or over the phone. FOIA does not require that your request be in writing, nor do you need to specifically state that you are requesting records under FOIA.
  • From a practical perspective, it may be helpful to both you and the person receiving your request to put your request in writing. This allows you to create a record of your request. It also gives us a clear statement of what records you are requesting, so that there is no misunderstanding over a verbal request. However, we cannot refuse to respond to your FOIA request if you elect to not put it in writing.
• Your request must identify the records you are seeking with “reasonable specificity.” This is a common-sense standard. It does not refer to or limit the volume or number of records that you are requesting; instead, it requires that you be specific enough so that we can identify and locate the records that you are seeking.
• Your request must ask for existing records or documents. FOIA gives you a right to inspect or copy records; it does not apply to a situation where you are asking general questions about the work of the Town, nor does it require the Town to create a record that does not exist.
• You may choose to receive electronic records in any format used by the Town in the regular course of business.
  • For example, if you are requesting records maintained in an Excel database, you may elect to receive those records electronically, or to receive a printed copy of those records.
• If we have questions about your request, please cooperate with staff’s efforts to clarify the type of records that you are seeking, or to attempt to reach a reasonable agreement about a response to a large request. Making a FOIA request is not an adversarial process, but we may need to discuss your request with you to ensure that we understand what records you are seeking.

To request records from the Town, you may direct your request to Kyle D. O’Brien, who is the Town’s designated FOIA officer. He can be reached at 540-896-5152, 116 Broadway Avenue, P.O. Box 156, Broadway, VA 22815. You may also contact him with questions you have concerning requesting records from the Town. In addition, the Freedom of Information Advisory Council is available to answer any questions you may have about FOIA. The Council may be contacted by e-mail at foiacouncil@dls.virginia.gov, or by phone at (804) 225-3056 or [toll free] 1-866-448-4100.

The Town’s Responsibilities in Responding to Your Request

• The Town must respond to your request within five working days of receiving it. “Day One” is considered the day after your request is received. The five-day period does not include weekends or holidays.
• The reason behind your request for public records from the Town is irrelevant, and you do not have to state why you want the records before we respond to your request. FOIA does, however, allow the Town to require you to provide your name and legal address.
• FOIA requires that the Town make one of the following responses to your request within the five-day time period:
  1. We provide you with the records that you have requested in their entirety.
  2. We withhold all of the records that you have requested, because all of the records are subject to a specific statutory exemption. If all of the records are being withheld, we must send you 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 us to withhold the records.
  3. We provide some of the records that you have requested, but withhold other records. We cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, we may redact the portion of the record that may be withheld, and must provide you with the remainder of the record. We must provide you with a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
  4. We inform you in writing that the requested records cannot be found or do not exist (we do not have the records you want). However, if we know that another public body has the requested records, we must include contact information for the other public body in our response to you.
  5. If it is practically impossible for the Town to respond to your request within the five-day period, we must state this in writing, explaining the conditions that make the response impossible. This will allow us seven additional working days to respond to your request, giving us a total of 12 working days to respond to your request.
• If you make a request for a very large number of records, and we feel that we cannot provide the records to you within 12 working days without disrupting our other organizational responsibilities, we may petition the court for additional time to respond to your request. However, FOIA requires that we make a reasonable effort to reach an agreement with you concerning the production or the records before we go to court to ask for more time.

Costs

• A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records, and shall make all reasonable efforts to supply the requested records at the lowest possible cost. 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.  Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records as set forth in subsection F of § 2.2-3704 of the Code of Virginia.
• You may have to pay for the records that you request from the Town. FOIA allows us to charge for the actual costs of responding to FOIA requests. This would include items like 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.
• If we estimate that it will cost more than $200 to respond to your request, we may require you to pay a deposit, not to exceed the amount of the estimate, before proceeding with your request. The five days that we have to respond to your request does not include the time between when we ask for a deposit and when you respond.
• You may request that we estimate in advance the charges for supplying the records that you have requested. This will allow you to know about any costs upfront, or give you the opportunity to modify your request in an attempt to lower the estimated costs.
• If you owe us money from a previous FOIA request that has remained unpaid for more than 30 days, the Town may require payment of the past-due bill before it will respond to your new FOIA request.

How the Town Computes and Charges for FOIA Requests

If your FOIA request is small and does not require the Town to expend significant staff time in responding, the Town may waive its right to charge for processing your request.  However, for more significant requests, the Town routinely charges for its response, as discussed above, to the extent that FOIA permits. 

The Town may assess and charge two types of fess for processing FOIA requests:  first, a fee for locating, assembling, and reviewing the records, and second, a fee for duplicating them and sending them to you.

In connection with the first fee, the Town will charge an hourly rate for staff time spent locating, assembling, and reviewing the records.  This fee includes charges for time spent estimating the number of records that may exist.  In addition, the fee includes charges for reviewing records to determine if they are responsive to your request, and for reviewing the records to determine if the Town is entitled to withhold some or all of the records under an exception to FOIA disclosure.  The Town charges for these activities at a rate of $25.55 per hour, which is the actual compensation rate of Town administrative personnel who perform these services.  Sometimes, for the Town’s convenience, other Town staff or the Town Attorney – who have higher compensation rates – will actually perform the services; however, in these situations, the Town still charges the same $25.55 hourly rate for these services.  In accordance with Virginia law, the Town charges only for the initial review of the documents, and not for any secondary legal review that the Town might choose to commission.

In connection with the second fee, your cost will vary depending on how you choose to receive the documents.  If you choose to receive electronic copies of the documents – typically, via a PDF file – and to receive the electronic documents via e-mail or Internet download, then the Town does not charge any duplication fee.  If you wish to receive the electronic documents on a thumb drive, the Town will charge for the actual cost of the thumb drive.  If you wish to receive paper copies of the documents, the Town charges a duplication fee of 5 cents per page (but may waive this charge if it represents a de minimis expenditure).  If you wish to inspect the physical documents in the Town Office, without retaining copies for yourself, the Town will charge the duplication fee only to the extent that it does not have existing paper copies of the records in its files.

The Town will make the paper documents or the thumb drive available for your pickup at the Town Office.  If you request the Town to send the physical documents (or a thumb drive) to you via postal service or overnight mail, the Town will charge actual postage costs.

Commonly Used Exemptions

The Code of Virginia allows any public body to withhold certain records from public disclosure. The Town commonly withholds records subject to the following exemptions:

• Personnel records (§ 2.2-3705.1 (1) of the Code of Virginia)
• Records subject to attorney-client privilege (§ 2.2-3705.1 (2)) or attorney work product (§ 2.2-3705.1 (3))
• Vendor proprietary information (§ 2.2-3705.1 (6))
• Records relating to the negotiation and award of a contract, prior to a contract being awarded (§ 2.2-3705.1 (12))

Policy Regarding the Use of Exemptions

• The general policy of the Town is to invoke the personnel records exemption in those instances where it applies in order to protect the privacy of employees and officials of the Town.
• The general policy of the Town is to invoke the contract negotiations exemption whenever it applies in order to protect the Town’s bargaining position and negotiating strategy.
• Because the Town Attorney is in independent contractor, his records are not subject to FOIA. To the extent that the Town has records in its possession that are subject to attorney-client privilege, or constitute attorney work product, the general policy of the Town is to withhold those records in order to protect the free communication of Town officials with the Town Attorney.

Comments

Below is a link to a form on which you may provide comments about your FOIA interactions with the Town. You may do so anonymously if you choose, and you may provide the comments to the Town, to the FOIA Advisory Council in Richmond, or both.

REQUESTER PUBLIC COMMENT FORM