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101706 FOIAFreedom of Information Freedom of Information Act (“FOIA”) Act (“FOIA”) The Primary State Law The Primary State Law Governing Citizen Access Governing Citizen Access to the Records of Public to the Records of Public Bodies and to Their Bodies and to Their Meetings Meetings Freedom of Information Freedom of Information Act Act •The Act’s objective is to guarantee •The Act’s objective is to guarantee access to public records. access to public records. •The general rule is that all public •The general rule is that all public records are open to public inspection records are open to public inspection and copying. and copying. •The Act applies to existing •The Act applies to existing documents. The Act does not require documents. The Act does not require the City to answer questions or to the City to answer questions or to create documents. create documents. Public Records Public Records Public records include “all writings and Public records include “all writings and recordings that consist of letters, words recordings that consist of letters, words or numbers, or their equivalent, set down or numbers, or their equivalent, set down by handwriting, typewriting, printing, by handwriting, typewriting, printing, photostatting, photography, magnetic photostatting, photography, magnetic impulse, optical or magneto-optical form, impulse, optical or magneto-optical form, mechanical or electronic recording or mechanical or electronic recording or other form of data compilation, however other form of data compilation, however stored, regardless of physical form or stored, regardless of physical form or characteristics, prepared or owned by, or characteristics, prepared or owned by, or in the possession of a public body or its in the possession of a public body or its officers, employees or agents in the officers, employees or agents in the transaction of public business.” transaction of public business.” Public Records Public Records •Examples •Examples –E-mail –E-mail –Video tapes –Video tapes –A note written with a crayon on a napkin –A note written with a crayon on a napkin –Computer data –Computer data –Draft documents –Draft documents Any document or recording of any kind, Any document or recording of any kind, used in the transaction of public used in the transaction of public business and possessed by the City, its business and possessed by the City, its officers or employees. officers or employees. Requests for Documents Requests for Documents Any Virginia citizen who is not in Any Virginia citizen who is not in jail or prison, or any member of jail or prison, or any member of the press, may make a FOIA the press, may make a FOIA request. If you receive a request. If you receive a request for documents from a request for documents from a non-citizen who is not a member non-citizen who is not a member of the press, or from an inmate of the press, or from an inmate or a prisoner, you are not legally or a prisoner, you are not legally required to respond. required to respond. Requests for Documents Requests for Documents •A request for documents need not be •A request for documents need not be in writing, and the requestor is not in writing, and the requestor is not required to cite the Act or refer to required to cite the Act or refer to the request as a FOIA request. If a the request as a FOIA request. If a Virginia citizen or member of the Virginia citizen or member of the press asks for a document, she has press asks for a document, she has made a FOIA request. made a FOIA request. •The motive of the requestor in •The motive of the requestor in making the request is irrelevant making the request is irrelevant under the Act, even if the request is under the Act, even if the request is made solely to harass the City or to made solely to harass the City or to impede its daily operations. impede its daily operations. Requests for Documents Requests for Documents •The requestor must identify the records •The requestor must identify the records she seeks with “reasonable specificity.” she seeks with “reasonable specificity.” •Example: A request for “anything that •Example: A request for “anything that might help me when I sue the City”is might help me when I sue the City”is not reasonably specific, but a request not reasonably specific, but a request for “any documents referencing street for “any documents referencing street repairs since 1995 on the 2600 block of repairs since 1995 on the 2600 block of Atlantic Avenue”is reasonably specific. Atlantic Avenue”is reasonably specific. •If you have questions about what •If you have questions about what documents are sought, you may ask the documents are sought, you may ask the requestor for clarification. requestor for clarification. Responses To Requests Responses To Requests for Documents for Documents Within five working days of your Within five working days of your receipt of the request… receipt of the request… –Provide documents –Provide documents –Withhold documents and cite exemptions –Withhold documents and cite exemptions in writing in writing –Provide some and withhold some, citing –Provide some and withhold some, citing exemptions in writing exemptions in writing –Notify in writing of need for additional –Notify in writing of need for additional seven days seven days –Request a deposit if you conclude that –Request a deposit if you conclude that the cost to respond to the request will the cost to respond to the request will likely exceed $200 likely exceed $200 Costs Costs •Actual cost incurred in accessing, •Actual cost incurred in accessing, duplicating, supplying or searching for duplicating, supplying or searching for the requested records the requested records •Search time should be assessed at the •Search time should be assessed at the lowest compensated hourly rate of the lowest compensated hourly rate of the employee who has the sufficient degree employee who has the sufficient degree of familiarity with the requested of familiarity with the requested documents that will enable an efficient documents that will enable an efficient search. search. Exclusions Exclusions •The Act contains a list of more than •The Act contains a list of more than eighty categories of documents that eighty categories of documents that are excluded from the Act’s are excluded from the Act’s mandatory disclosure provisions. mandatory disclosure provisions. •Unless another provision of state or •Unless another provision of state or federal law explicitly prohibits the federal law explicitly prohibits the release of a document, you have release of a document, you have discretion as to whether to invoke discretion as to whether to invoke the exclusion. the exclusion. •Exclusions must be narrowly •Exclusions must be narrowly construed. construed. Examples of Exclusions Examples of Exclusions •Personnel records •Personnel records •Medical and mental health records •Medical and mental health records •Documents protected by the attorney-client •Documents protected by the attorney-client privilege privilege •Certain criminal records •Certain criminal records •Certain records about the award of a City contract •Certain records about the award of a City contract (prior to award) (prior to award) •Appraisals and cost estimates of land subject to •Appraisals and cost estimates of land subject to purchase or sale (prior to the sale or purchase) purchase or sale (prior to the sale or purchase) •Documents created exclusivelyfor use in a closed •Documents created exclusivelyfor use in a closed meeting meeting •Documents for which disclosure is explicitly •Documents for which disclosure is explicitly prohibited by federal or state law prohibited by federal or state law If Someone Asks You for If Someone Asks You for Public Records Public Records Contact Public Policy Attorney Contact Public Policy Attorney Rod Ingram (385-8212) Rod Ingram (385-8212) Public Meetings Public Meetings •The Act requires that all meetings of •The Act requires that all meetings of public bodies be open to the public, public bodies be open to the public, and that notice of those meetings be and that notice of those meetings be given. given. •A “meeting”is any gathering of three •A “meeting”is any gathering of three or more members of a public body or more members of a public body where public business is discussed. where public business is discussed. Public Bodies Public Bodies •City Council •City Council •Any committee, subcommittee, •Any committee, subcommittee, authority, board, commission, agency authority, board, commission, agency or other entity, however designated, or other entity, however designated, created by the City Council to either created by the City Council to either (i) perform delegated functions of the (i) perform delegated functions of the City Council or (ii) to advise the City City Council or (ii) to advise the City Council. Council. “Meeting” “Meeting” •Any assemblage of three or •Any assemblage of three or more members of a public body. more members of a public body. •The term “meeting”does not •The term “meeting”does not apply to gatherings of only City apply to gatherings of only City employees. employees. Notice of Meetings Notice of Meetings •Public bodies must give notice •Public bodies must give notice of the date, time, and location of of the date, time, and location of its meetings “by placing the its meetings “by placing the notice in a prominent public notice in a prominent public location at which notices are location at which notices are regularly posted andin the regularly posted andin the office of the clerk of the public office of the clerk of the public body.” body.” Notice of Meetings Notice of Meetings •Must be posted at least three •Must be posted at least three working days prior to the meeting, working days prior to the meeting, unless it is a special or emergency unless it is a special or emergency meeting. meeting. •“Notice, reasonable under the •“Notice, reasonable under the circumstance, of special or circumstance, of special or emergency meetings shall be given emergency meetings shall be given contemporaneously with the notice contemporaneously with the notice provide members of the public body provide members of the public body conducting the meeting.” conducting the meeting.” Closed Meetings Closed Meetings A closed meeting is a meeting A closed meeting is a meeting from which the public is from which the public is excluded. excluded. Closed meetings may only be held Closed meetings may only be held for purposes authorized by the for purposes authorized by the Act. Act. Closed Meetings Closed Meetings The Act authorizes closed meetings to The Act authorizes closed meetings to discuss 38 topics, including: discuss 38 topics, including: •Personnel matters re: specific •Personnel matters re: specific appointees appointees •Acquisition or disposition of City •Acquisition or disposition of City property; property; •Award of a public contract •Award of a public contract IF discussion in open session would IF discussion in open session would adversely affect the City’s bargaining adversely affect the City’s bargaining position position cont’d cont’d Closed Meetings Closed Meetings •Consultation with legal counsel •Consultation with legal counsel •Discussion of plans to protect public •Discussion of plans to protect public safety as it relates to terrorist safety as it relates to terrorist activity or a related threat to public activity or a related threat to public safety safety •Discussion of personal matters not •Discussion of personal matters not related to public business related to public business •Discussion of special awards •Discussion of special awards Closed Meetings: Closed Meetings: Procedures Procedures Motion to convene in closed session: Motion to convene in closed session: identify (1) the subject matter, (2) identify (1) the subject matter, (2) purpose of the closed session, and (3) purpose of the closed session, and (3) the Virginia Code section that the Virginia Code section that authorizes the closed meeting. authorizes the closed meeting. At the end of the closed session At the end of the closed session discussion, must immediately discussion, must immediately reconvene in open session and certify reconvene in open session and certify that only the identified matters were that only the identified matters were discussed during the closed meeting. discussed during the closed meeting. Closed Meetings and the Closed Meetings and the Conflict of Interests Act Conflict of Interests Act If the Conflict of Interests Act If the Conflict of Interests Act prohibits you from participating prohibits you from participating in a transaction, you may not in a transaction, you may not attend a closed session meeting attend a closed session meeting on that transaction. on that transaction. Closed Meetings and Closed Meetings and Confidential Information Confidential Information •The Conflict of Interests Act prohibits •The Conflict of Interests Act prohibits the use of confidential information for the use of confidential information for the economic benefit of one’s self or the economic benefit of one’s self or another. another. •The Freedom of Information Act does •The Freedom of Information Act does not prohibit you from disclosing closed not prohibit you from disclosing closed session deliberations. session deliberations. •Fellow Council members may expect •Fellow Council members may expect you to keep closed session information you to keep closed session information confidential. confidential.