VIRGINIA FREEDOM VIRGINIA FREEDOM OF INFORMATION OF INFORMATION

ACTACT

Maria J.K. Everett, Executive Maria J.K. Everett, Executive DirectorDirector

Alan Gernhardt, Staff AttorneyAlan Gernhardt, Staff Attorney VA Freedom of Information VA Freedom of Information

Advisory CouncilAdvisory Council

VA Freedom of Information Advisory

Council,a state agency

• Issues advisory opinions– written, oral, email

• Provides FOIA training– Biennial FOIA Roadshow– Specialized training upon request

• Publishes educational material

PURPOSEPURPOSE• Single Body of Single Body of

LawLaw

• Every day Every day application of application of ““Government of, Government of, by and for the by and for the PeoplePeople””

• Predictable Predictable Behavior by Behavior by GovernmentGovernment

• Procedures to be Procedures to be followedfollowed

FOIA IS A BALANCE

RIGHT OF ACCESSVersus

NEED OF GOVERNMENT

TO FUNCTION

– Regardless of physical form or Regardless of physical form or characteristic; characteristic;

– However stored; However stored;

– Owned or prepared byOwned or prepared by or or in the in the possession ofpossession of a public body or its a public body or its officers, employees, or agents in officers, employees, or agents in the the transaction of public transaction of public businessbusiness..

PUBLIC RECORDSPUBLIC RECORDS

Debunking FOIA Debunking FOIA MythsMyths

• RECORDS not RECORDS not explanationsexplanations

• Inspect or CopyInspect or Copy

• Not freeNot free

• FOIA doesn’t FOIA doesn’t prohibitprohibit releaserelease

• Informal vs. formal Informal vs. formal requestsrequests

FOIA REQUESTS FOIA REQUESTS

DON’TDON’T HAVE TO: HAVE TO:

BE IN BE IN WRITIWRITI

NGNGSAY SAY

““FOIA”FOIA”

WHO HAS FOIA WHO HAS FOIA RIGHTSRIGHTS

• VIRGINIVIRGINIA A CITIZENCITIZENS S

• MEDIAMEDIA

MOTIVE MOTIVE

IMMATERIAL IMMATERIAL

FOIA FOIA REQUIRESREQUIRES

55 WORKING DAYSWORKING DAYS

TO PRODUCE RECORDS TO PRODUCE RECORDS

-OR--OR-

TO MAKE OTHERTO MAKE OTHERRESPONSERESPONSE

RESPONSESRESPONSES

5 DAYS 5 DAYS5 DAYS

5 DAYS 5 DAYS 5 DAYS 5 DAYS

5 DAYS

• YES, here are the records

• We need more time

• NO, records or portions exempt

• Records don’t exist OR can’t be located

NOT A RESPONSE !!

CHARGESCHARGES

• SEARCH COSTSSEARCH COSTS

• ACCESSINGACCESSING

• SUPPLYINGSUPPLYING

• DUPLICATINGDUPLICATING

ACTUAL COSTS ONLY

• Hourly rateHourly rate

• NONO fringe fringe benefitsbenefits

• AdministratiAdministrative actve act

• Reasonable, Reasonable, too.too.

CHARGES; ADVANCE DEPOSIT

• More than $200

• Estimate Required

• Money Up Front

ENFORCEMENENFORCEMENTT

• Failure to follow FOIA deemed Failure to follow FOIA deemed violation.violation.

• FOIA Suit by aggrieved partyFOIA Suit by aggrieved party

• Burden of proof on GovernmentBurden of proof on Government

PENALTIESPENALTIES

• Pay legal bills of Pay legal bills of petitionerpetitioner

•Mandamus or Mandamus or InjunctionInjunction

•BAD PRESSBAD PRESS

PENALTIESPENALTIES “Knowing” and “Willful” “Knowing” and “Willful”

ViolationsViolations

•Up to $2,000 for Up to $2,000 for 11stst violation. violation.

•Up to $5,000 for Up to $5,000 for any subsequent any subsequent violation.violation.

•Paid by Paid by violator, not the violator, not the agency!agency!

Advisory Advisory OpinionsOpinions

•VA Freedom of VA Freedom of Information Advisory Information Advisory CouncilCouncil

•Attorney GeneralAttorney General

RememberRemember

• Call FOIA Council with ANY questions.Call FOIA Council with ANY questions.

• There are NO stupid FOIA questions.There are NO stupid FOIA questions.

• Set “institutional culture” for compliance with FOIA.

• FOIA says —How and When to ACT; Not how to FEEL.

• It is NOT our individual sense of fairness, but the collective sense expressed in the law.

FOIA COUNCIL

• 1-866-448-4100 (toll free)• 804-225-3056• Email:

foiacouncil@dls.virginia.gov

• Website: http://foiacouncil.dls.virginia.gov