The rights of requesters and the responsibilities of VITA under the Virginia Freedom of Information Act
Please note that requests for records created by localities or agencies other than VITA must be directed to those public bodies. VITA is only able to search for and produce its own records.
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 -- 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 Freedom of Information Advisory Council for a nonbinding advisory opinion. Information about the Council is available on its website at http://foiacouncil.dls.virginia.gov/.
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 and FOIA requires the public body that is the custodian of the requested records to respond. 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 Agency A emails must be directed to Agency A, not to VITA. VITA does not become responsible for searching or providing 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 include records of other agencies.
- VITA is not the sole IT agency for all Virginia governmental bodies. That means 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.
Making a request for records from VITA
- You may request records by U.S. Mail, 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 is helpful to put your request in writing. This creates a record of your request. It also gives a clear statement of what records you are requesting so there is no misunderstanding over a verbal request. It also facilitates contact with you if questions arise or further communications about your request are needed. However, we cannot refuse to respond to your FOIA request if you elect not to 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 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. See Va. Code § 2.2-3704(D).
- 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 help us clarify the records you are seeking. Making a FOIA request is not an adversarial process and we prefer to resolve your request in a mutually agreeable way. We may need to discuss your request with you to ensure we understand what records you are seeking. Clarifying a request can also help avoid incurring unnecessary costs. Where you have made a large records request, we will attempt to reach a reasonable agreement with you about a response.
To request records for which VITA is the custodian, please contact our FOIA officer, Joshua Heslinga. He can be reached at:
Virginia Information Technologies Agency
ATTN: FOIA Officer
11751 Meadowville Lane
Chester, VA 23836
You may also contact Mr. Heslinga with questions you have about requesting records from VITA. 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 firstname.lastname@example.org or by phone at 804-698-1810/1-866-448-4100 [toll free].
VITA's responsibilities in responding to your request
- VITA must respond to your request within five working days of receiving it. The five-day period begins the day after your request is received and does not include weekends or holidays.
- The reason behind your request for VITA public records is irrelevant. VITA's responsibilities in responding to your request are the same regardless of the reason for your request.
- FOIA provides that a public body may require requesters to provide their name and legal address. See Va. Code 2.2-3704(A).
- If VITA is the custodian of the requested records, 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)):
1) We provide you with the records you have requested in their entirety.
2) We withhold all of the records 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 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.
4) The requested records could not be found or do not exist. If we know another agency has the requested records, our response will include contact information for that agency.
5) If it is not practically possible for VITA to respond to your request within the five-day period, we must state this in writing and explain 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 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 of the records before we go to court to ask for more time.
- A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. 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. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in § 2.2-3704(F) of the Code of Virginia.
- You may have to pay for the records you request from VITA. FOIA allows us to charge for the actual costs of responding to FOIA requests. This includes items such as 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 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 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 we estimate in advance the charges for supplying the records 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 VITA money from a previous FOIA request that has remained unpaid for more than 30 days, we may require payment of the past-due bill before we will respond to your new FOIA request. See Va. Code § 2.2-3704(I).
Types of records
The following is a general description of the types of records held by VITA:
- VITA policies, standards, guidelines, and other publications of VITA
- Personnel records concerning employees and officials of VITA
- Procurements conducted by VITA for information technology goods and services
- IT contracts which VITA has entered into or manages
If you are unsure whether VITA has the record(s) you seek, please contact our FOIA officer, whose information is above.
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. See Va. Code § 2.2-3705.1(1).
- Records subject to attorney-client privilege or attorney work product. See Va. Code §§ 2.2-3705.1(2) & (3).
- Vendor proprietary information software. See Va. Code § 2.2-3705.1(6).
- Records relating to the negotiation and award of a contract, prior to a contract being awarded. See Va. Code § 2.2-3705.1(12).
- Records describing or relating to IT security and access control. See Va. Code § 2.2-3705.2(2).
- Records relating to cybersecurity threats, vulnerabilities, or security plans, the release of which would jeopardize safety or security. See Va. Code § 2.2-3705.2(14).
- Records relating to procurement transactions conducted pursuant to the Virginia Public Procurement Act. See Va. Code § 2.2-4342.
Furthermore, FOIA does not require agencies to provide records in 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. See Va. Code § 2.2-3703(C)(i).
Policy regarding the use of exemptions
The general policy of VITA is to invoke FOIA exemptions where they apply in order to safeguard the interests that have been recognized as worthy of protection through those exemptions. For example, the personnel records exemption protects the privacy of our employees and officials, the contract negotiations exemption protects VITA’s bargaining position and negotiating strategy, and the procurement exemption protects the ability to obtain high quality goods and services in a fair and impartial manner.
To comment on the quality of assistance provided to you by VITA, please use the online public comment form on the Freedom of Information Advisory Council’s website.