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2.2-3700 The Virginia Freedom of Information Act

Date of Current Revision or Creation: September 14, 2022

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Rights and Responsibilities: The Rights of Requesters and the Responsibilities of Â鶹´«Ã½ 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 your FOIA rights have been violated, you may file a petition in district or circuit court to compel compliance with FOIA. Making a Request for records Â鶹´«Ã½

You may request records by U.S. 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 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 the right to inspect or copy records; it does not apply to a situation where you are asking general questions about the work of Â鶹´«Ã½, nor does it require Â鶹´«Ã½ to create a record that does not exist.

You may choose to receive electronic records in any format used by Â鶹´«Ã½ 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, via e-mail or on a computer disk, 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 from Â鶹´«Ã½, you may direct your requests to the University FOIA Officer atÌýfoia@odu.edu. You may send requests by U.S. Mail at Â鶹´«Ã½, 2000 Koch Hall, Norfolk, VA 23529.ÌýYou may also contact the University FOIA Officer with questions you have concerning requesting records from Â鶹´«Ã½. 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@leg.state.va.us, or by phone at 804-225-3056 or [toll free] 1-866-448-4100.

Â鶹´«Ã½'s Responsibilities in Responding to Your Request

• Â鶹´«Ã½ 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 Â鶹´«Ã½ is irrelevant, and we cannot ask you why you want the records before we respond to your request. FOIA does, however, allow Â鶹´«Ã½ to ask you to provide your name and legal address.

FOIA requires that Â鶹´«Ã½ 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 the records that you have requested, because all the records are subject to a specific statutory exemption. If all 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. If it is impossible for Â鶹´«Ã½ 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 twelve working days to respond to your request.
5. If you make a request for a large number of records, and we feel that we cannot provide the records to you within 12 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 of the records before we go to court to ask for more time.

Cost for Records Requests

The Virginia Freedom of Information Act (FOIA), Va. Code § 2.2-3700 et seq., allows a public body to assess reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose 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. Duplicating fees charged by a public body shall not exceed the actual cost of duplication. All charges for supplying requested records shall be estimated in advance at the request of the citizen as set forth inÌýÌýof the Code of Virginia.

Charges to Produce Records

The requestor has the right to be informed of the cost of the records desired. Actual costs include but are not limited to employee time spent searching for the requested records (billed at a rate equal to the specific employee's hourly rate), duplicating costs or any other actual costs associated with supplying the requested records. The University cannot assess general overhead charges and will not charge for the first two (2) hours of staff time per request.

Request a Quote

A cost estimate may be requested in advance of the records being produced. This allows the requestor to be informed of estimated costs and provides the opportunity to modify a request as needed. Once a cost estimate is provided, the timeline of the request will be tolled until the requestor indicates whether to proceed with the request based on the estimate.

Deposit

If the University estimates the cost of fulfilling a FOIA request will exceed $200.00, the requestor may be required to pay a deposit, not to exceed the amount of the estimate, before proceeding with the request. The deposit will be credited toward the final cost of providing the requested records. In the event the actual cost of the records is less than the deposit, the difference will be refunded to the requestor. The timeline to respond to a FOIA request does not include the time during which a deposit is requested and a response is received from the requestor.

Unpaid Balances

If a requestor has a 30-day outstanding balance from a previous FOIA request, the University may require payment of the past-due amount before it processes a new request.

Multiple Requests During a Calendar Year

Â鶹´«Ã½ will provide up to four (4) FOIA requests at no charge, not to exceed two (2) hours of employee work time for each query, per requestor during each calendar year; subsequent requests may be assessed at the full cost of providing the desired records.

Commonly used exemptions

The Code of Virginia allows any public body to withhold certain records from public disclosure. Â鶹´«Ã½ 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 related to the negotiation and award of a contract, prior to a contract being awarded (§ 2.2-3705.1 (12))