The Rights of Requesters and the Responsibilities of VITA under the Virginia Freedom of Information Act
The Virginia Freedom of Information Act (FOIA), located at § 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.
Questions About FOIA?
The Virginia Freedom of Information Advisory Council, a state agency, is an office with the expertise to help resolve disputes over Freedom of Information issues. The FOIA Council answers questions from private citizens, state and local public officials, and the media about access to public records and meetings.
The Freedom of Information Advisory Council is available to answer any questions you may have about FOIA. The Council may be contacted at: http://foiacouncil.dls.virginia.gov
Making a Request for Records from VITA (Virginia Information Technologies Agency)
- You may request records by U.S. Mail, fax, email, 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.
- It would 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. And it facilitates contact with you if questions or further communications about your request are needed. 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. Please note that broad requests are more likely to require that substantial, actual costs be incurred in accessing, duplicating, supplying, or searching for the requested records. See Va. Code § 2.2-3704(F) & (H).
- 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 VITA, nor does it require VITA to create a record that does not exist.
- You may choose to receive electronic records in any format used by VITA in the regular course of business.
- For example, if you are requesting records maintained in an Excel spreadsheet, you may elect to receive those records electronically, via email, 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.
Considerations Regarding Requests for Records from VITA
- Each state agency handles and responds to FOIA requests for its own records.
- FOIA provides that requests should be made to the custodian of the records you are seeking. See Va. Code § 2.2-3704(A).
- Under the Virginia Public Records Act and FOIA, VITA is not custodian of the records of other agencies, even if those agencies store their records on IT infrastructure maintained by VITA or its IT vendors. See Va. Code § 42.1-85(B); Va. Code § 2.2-3704(J).
- For example, Agency A uses the central executive branch email system maintained by a vendor managed by VITA. Requests for email records from Agency A must be directed to Agency A, not to VITA, because VITA does not become responsible for Agency A's email even though that email is stored on a central system.
- If you request all state government records about Subject X, VITA will be able to search for and provide only its own records. VITA's response will not cover records of other agencies.
- VITA is not the sole IT agency for all Virginia governmental bodies – or, to put it another way, not all Virginia governmental bodies and IT services are within the scope of VITA's responsibilities.
- VITA typically does not provide any services to localities (counties, cities, and towns) and local agencies, other than some telecommunications and state contracting services.
- VITA typically does not provide any services other than some network and security management, to the legislative or judicial branches of state government.
- Some executive branch agencies independently maintain their own storage and other IT infrastructure services under the statutes that govern those agencies.
- Although statewide IT policies may be relevant to agencies' decision-making, VITA does not direct how state agencies use VITA-provided IT infrastructure to store and maintain records.
To request records for which VITA is the custodian, you may direct your request to Dan Wolf. He can be reached at:
Virginia Information Technologies Agency
ATTN: FOIA Officer
11751 Meadowville Lane
Chester, VA 23836
You may also contact him with questions you have concerning requesting records from VITA.
As stated above under the section "Questions About FOIA?," the Freedom of Information Advisory Council is available to answer any questions you may have about FOIA. The Council may be contacted at http://foiacouncil.dls.virginia.gov
VITA's Responsibilities in Responding to Your Request
- VITA 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 VITA is irrelevant, and we cannot ask you why you want the records before we respond to your request. FOIA does, however, allow us to require you to provide your name and legal address.
- FOIA requires that VITA make one of the following responses to your request within the five-day time period (see Va. Code § 2.2-3704(B)):
- We provide you with the records that you have requested in their entirety.
- 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.
- We provide some of the records that you have requested, but withhold other records. Depending on the circumstances, we may redact part of a record that may be withheld and 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 some or all of the requested records to be withheld.
- The requested records could not be found or do not exist. If we know that another agency has the requested records, our response will include contact information for that agency.
- If it is not practically possible for VITA to respond to your request within the five-day period, we must state this in writing, explaining why. 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 days without disrupting our other organizational responsibilities, we may petition the court for additional time to respond to your request. However, we will 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.
- You may have to pay for the records that you request from VITA. 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. See Va. Code § 2.2-3704(F).
- 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. See Va. Code § 2.2-3704(H).
- 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 estimated costs upfront, or give you the opportunity to modify your request in an attempt to lower the estimated costs. See Va. Code § 2.2-3704(F).
- If you owe us money from a previous FOIA request that has remained unpaid for more than 30 days, VITA may require payment of the past-due bill before it will respond to your new FOIA request. See Va. Code § 2.2-3704(I).
Commonly used exemptions
The Code of Virginia allows any public body to withhold certain records from public disclosure. VITA 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 software (§ 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))
- Records that describe or relate to IT security and access control (§ 2.2-3705.2(3))
- Records that relate to preventing or responding to cyber-attacks, the release of which would jeopardize safety (§ 2.2-3705.2(4))
Furthermore, FOIA does not require commonwealth agencies to provide records in a response to a request by any person who is (1) incarcerated in a federal, state, or local correctional facility, or (2) civilly committed pursuant to the Sexually Violent Predators Act (Va. Code § 37.2-900 et seq.).