Virginia Freedom of Information Act (FOIA)

Rights & Responsibilities:

The Rights of Requesters and the Responsibilities of the City of
Chesapeake under the Virginia Freedom of Information Act

• Your FOIA Rights as a Citizen of Virginia or Media Representative
• Making a Request for records from the City of Chesapeake
• The City of Chesapeake’s Responsibilities in Responding to Your Request
• Costs
• Types of records
• Commonly used exemptions
• Policy regarding the use of exemptions

The Virginia Freedom of Information Act (FOIA), found 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 be withheld only if a specific, statutory exemption applies.

The purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this purpose, 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 as a Citizen of Virginia or Media Representative

• 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 the Chesapeake General District Court or the Chesapeake Circuit Court to compel compliance with FOIA. You may also contact the Virginia Freedom of Information Advisory Council for a nonbinding advisory opinion.

Making a Request for records from the City of Chesapeake

• You may request records from the City of Chesapeake 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.
  
  
  • From a practical perspective, it may be helpful to both you and the City of Chesapeake to put your request in writing. This allows you to create a record of your request. It also gives the City of Chesapeake a clear statement of what records you are requesting, so that there is no misunderstanding over a verbal request. However, the City of Chesapeake 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 the City of Chesapeake can identify and locate the records that you are seeking.


• 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 the City of Chesapeake, nor does it require the City of Chesapeake to create a record that does not exist.


• You may choose to receive records in any format (electronic, paper copies, etc.) used by the City of Chesapeake 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 email or on a computer disk, or to receive a printed copy of those records.


• If the City of Chesapeake has 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 the City of Chesapeake may need to discuss your request with you to ensure that the City of Chesapeake understands what records you are seeking.

To request records from the City of Chesapeake, you may direct your request to the City's Freedom of Information Act Officer, Monica Wilburn. She can be reached by phone at 757-382-6166, by fax at 757-382-6507, by mail at the Office of the City Manager, 306 Cedar Road, Chesapeake, Virginia 23322, and by email at FOIA@cityofchesapeake.net. You may also contact her with questions you have concerning requesting records from the City of Chesapeake.

Constitutional Officers in the City of Chesapeake have designated the following Freedom of Information Act Officers, who should be contacted to request records held by those offices:

• Office of the Commissioner of the Revenue
  FOIA Officer: Patsy Foster
  757-382-6743
  pfoster@cityofchesapeake.net


• Office of the Treasurer
  FOIA Officer: Barbara Carraway
  757-382-6625
  bcarrawa@cityofchesapeake.net


• Clerk of the Circuit Court
  FOIA Officer: Alan P. Krasnoff
  ccclerk@cityofchesapeake.net


• Office of the Commonwealth's Attorney
  FOIA Officer: Nancy Parr
  757-382-3200


• Sheriff's Department
  FOIA Officers: Captain Pascal and Captain Stafford
  757-382-6159

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 email at foiacouncil@dls.virginia.gov, or by phone at 804-225-3056 or [toll free] 1-866-448-4100.

The Freedom of Information Advisory Council also has a public comment form on its website to enable any requestor to comment on the assistance provided to the requestor by a public body.  This form can be downloaded at http://foiacouncil.dls.virginia.gov/sample letters/welcome.htm.

The City of Chesapeake's Responsibilities in Responding to Your Request

• The City of Chesapeake 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 the City of Chesapeake is irrelevant, and you do not have to state why you want the records before we respond to your request. FOIA does, however, allow the City of Chesapeake to require you to provide your name and legal address.


• FOIA requires that the City of Chesapeake make one of the following responses to your request within the five-day time period:
  
  
  1. The City of Chesapeake denies the request because you are not a citizen of the Commonwealth, representative of a newspaper or magazine with circulation in the Commonwealth, or representative of a radio or television station broadcasting in or into the Commonwealth.
  
  
  2. The City of Chesapeake provides you with the records that you have requested in their entirety.
  
  
  3. The City of Chesapeake withholds 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, the City of Chesapeake 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 the City of Chesapeake to withhold the records.
  
  
  4. The City of Chesapeake provides some of the records that you have requested, but withholds other records.  The City of Chesapeake cannot withhold an entire record if only a portion of it is subject to an exemption.  In that instance, the City of Chesapeake may redact the portion of the record that may be withheld, and must provide you with the remainder of the record.  The City of Chesapeake 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.
  
  
  5. The City of Chesapeake informs you in writing that the requested records cannot be found or do not exist (the City of Chesapeake does not have the records you want).  However, if the City of Chesapeake knows that another public body has the requested records, the City of Chesapeake must include contact information for the other public body in our response to you.
  
  
  6. The City of Chesapeake provides you with an estimated cost (if over $200) and requires payment of a deposit in the amount of the estimate before beginning work on the response.
  
  
  7. If it is not practically possible for the City of Chesapeake to respond to your request within the five-day period, the City of Chesapeake must state this in writing, explaining the conditions that make the response impossible.  This will allow the City of Chesapeake 7 additional working days to respond to your request, giving the City of Chesapeake a total of 12 working days to respond to your request.


• If you make a request for a very large number of records, and the City cannot provide the records to you within 12 working days without disrupting the City of Chesapeake's other municipal responsibilities, the City of Chesapeake may petition the court for additional time to respond to your request. However, FOIA requires that the City of Chesapeake make a reasonable effort to reach an agreement with you concerning the production or the records before the City of Chesapeake goes to court to ask for more time.

Costs

• The City of Chesapeake 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 special fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any copying 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 subsection F of § 2.2-3704 of the Code of Virginia.


• You may be required to pay for the records that you request from the City of Chesapeake. FOIA allows the City of Chesapeake 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, and any other costs directly related to supplying the requested records. It cannot include general overhead costs.


• If the City of Chesapeake estimates that it will cost more than $200 to respond to your request, the City of Chesapeake may require you to pay a deposit, not to exceed the amount of the estimate, before proceeding with your request. The five days that the City of Chesapeake has to respond to your request does not include the time between when the City of Chesapeake asks for a deposit and when you pay the deposit.


• You may request that the City of Chesapeake estimate in advance the charges for supplying the records that you have requested. This will allow you to know about any costs upfront, or give you the opportunity to modify your request in an attempt to lower the estimated costs.


• If you owe the City of Chesapeake money from a previous FOIA request that has remained unpaid for more than 30 days, the City of Chesapeake may require payment of the past-due bill before it will respond to your new FOIA request.

Types of records

The following is a general description of the types of records held by the City of Chesapeake and is not an exclusive list:

• Records of the Chesapeake City Council and the City's boards and commissions


• Personnel records concerning employees and officials of the City of Chesapeake


• Records of City contracts


• Records maintained by the various City Departments:
  
  
  • Police and Fire Department Records
  • Land Use and Zoning Records
  • Development and Permit Records
  • Chesapeake Integrated Behavioral Healthcare Records
  • Department of Human Services Records
  • Public Works Records
  • Public Utilities Records
  • Information Technology Records

If you are unsure whether the City of Chesapeake has the record(s) you seek, please contact Monica Wilburn.  She can be reached by phone at 757-382-6586, by fax at 757-382-8749, by mail at the Office of the City Attorney, 306 Cedar Road, 6^th Floor, Chesapeake, Virginia 23322, and by email at FOIA@cityofchesapeake.net.

Commonly used exemptions

The Code of Virginia allows any public body to withhold certain records from public disclosure.  The following exemptions are common examples, but not an exclusive list, of exemptions the City of Chesapeake invokes when withholding records:

• 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))


• The names, addresses and telephone numbers of complainants furnished in confidence with respect to investigations of individual zoning enforcement complaints or complaints relating to the building and fire codes (§ 2.2-3705.3(9))


• Records concerning a criminal investigation (§ 2.2-3706)


• Health records, except that such records may be personally reviewed by the individual who is the subject of such records (§ 2.2-3705.5(1))


• Social services and child protective services records (§§ 2.2-3705.5(3), 63.2-104, 63.2-105)

Policy regarding the use of exemptions

The City of Chesapeake's Administrative Regulation Number 1.08 includes a written policy regarding when statutory exemptions will be invoked to withhold records. It is reproduced in relevant part below. View the entire Administrative Regulation Number 1.08.

As a general policy, the City will claim the exemptions listed in the Act because of the sound public policies behind such exemptions.