The Virginia Freedom of Information Act, Data Privacy

The Virginia Freedom of Information Act is a public records and data protection law that was enacted in 1968. In accordance with the federal Freedom of Information Act or FOIA, the Virginia Freedom of Information Act grants residents of the state the right to request access to a wide variety of public records and government information. To this point, the provisions of the law establish the steps and measures that government agencies within the state must abide by when looking to make their records and information available for public access and consumption. Furthermore, the law also outlines the procedures that must be followed when denying access to public records and government information.

How are public records defined under the law?

The Virginia Freedom of Information Act defines public records as “all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.” Conversely, the law defines information as “the content within a public record that references a specifically identified subject matter, and shall not be interpreted to require the production of information that is not embodied in a public record.”

What are the responsibilities of public bodies under the law?

The Virginia Freedom of Information Act mandates that public bodies within the state take the steps necessary to provide citizens of the state with access to their public records and related information. To this end, public bodies have the following responsibilities under the provisions of the law:

• Except as otherwise stated in the law, all public records that a public body within the state of Virginia maintains must be made accessible to the general public.
• Public bodies have an obligation to respond to a request for access to public records, and failure to do so constitutes a violation of the law.
• A public body is only permitted to charge a requestor reasonable fees, not to exceed the actual cost of accessing, searching for, duplicating, or supplying an individual with a personal record.
• Public records that are maintained by a public body via an electronic data processing system, database, or another similar mechanism must be made available to a requestor at a reasonable cost, not to exceed the cost of providing the requested records.
• Public bodies are required to produce records that are maintained in an electronic medium in another tangible medium, as stated by the requestor, under the condition that the public body in question has the capacity to do so. Alternatively, public bodies can also provide a requestor with the records and information that they have requested in email format, if the public body uses email communications in the regular course of their business.
• In instances where a public record contains information that is both include and excluded under the provisions of the law, a public body is required to redact all information that is excluded prior to disclosure.

What public information and records are excluded from the law?

Under the Virginia Freedom of Information Act, the are various public records that are exempt from disclosure to the general public. With this being said, some examples of public records and government information that are excluded from the scope and application of the law include but are not limited to:

• Written legal advice of counsel to public bodies, or state and regional authorities, as well as the employees and officials that work on behalf of such establishments.
• Vendor proprietary information software.
• Computer software programs that have been developed for or by a public institution of higher education or state agency within Virginia.
• Appraisals and cost estimates for real estate listings prior to the completion of purchase, sale, or lease.
• Communications and materials that must remain confidential under the provisions of the Virginia Administrative Dispute Resolution Act.
• Information or details that would disclose specific security aspects of a system safety plan, pursuant to the Federal Transit Administration regulations by the Commonwealth’s designated Rail Fixed Guideway Systems Safety Oversight agency.
• Subscriber data that is collected by a local government agency in connection with the Enhanced Public Safety Telephone Services Act.
• Information concerning disaster evacuation and recovery plans that will be implemented in the event that a natural disaster occurs.

What are the penalties for violating the law?

As it relates to the enforcement of the law, public bodies that fail to comply with the Virginia Freedom of Information Act are subject to a wide range of penalties. Most notably, in instances where an officer or employee working on behalf of a public body within Virginia is found to have willfully violated the law, said individual may be subject to a monetary fine of up to $2,000, depending on the severity of the offense. Moreover, repeat violations of the law may result in civil penalties of up to $5,000 per violation. Additionally, aggrieved parties may also request injunctive relief against a public body that has failed to maintain compliance with the law.

While the scope and applicability of public records legislation around the U.S. may vary, the provisions of the Virginia Freedom of Information Act provide residents of the state with the means to access a large amount of information in the form of public records. What’s more, the penalties that public bodies and government agencies stand to face should they fail to comply with the law are both stringent and far-reaching. In this way, residents within the state of Virginia are provided with the means to hold their local government and elected officials accountable as it pertains to the manner in which their tax dollars are being allocated and spent.