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
- A FOIA Requestor's 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 FOIA Requests
- 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. The City may only withhold a public record from a citizen of Virginia or representative of the media broadcasting/circulating in Virginia if a specific, statutory exemption applies.
A FOIA Requestor’s Rights as a Citizen of Virginia or Media Representative
- A requestor has the right to request to inspect or receive copies of public records, or both.
- A requestor has the right to request that any charges for the requested records be estimated in advance.
- If a requestor believes that their FOIA rights have been violated, they may file a petition in the Chesapeake General District Court or the Chesapeake Circuit Court to compel compliance with FOIA. They 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
- Records may be requested from the City of Chesapeake via the Chesapeake FOIA Portal, U.S. Mail, fax, email, in person, or over the phone. FOIA does not require the request be in writing, nor does it need to specifically state that the records are being requested under FOIA.
- From a practical perspective, it may be easier to submit the request through the Chesapeake FOIA Portal. This will provide confirmation of the request, allow status tracking, and provide any responsive records for direct download from the system. However, the City of Chesapeake cannot refuse to respond to the FOIA request if submitted by a different method.
- The request must identify the desired records with "reasonable specificity." This requires the request be specific enough so that the City of Chesapeake can identify and locate the requested records.
- FOIA applies to existing records or documents only. It does not apply to 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.
- The requestor 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, records maintained in an Excel database may be provided electronically, via email or on a computer disk, or in hard copy.
- If the City of Chesapeake has questions about the request, please cooperate with staff's efforts to clarify the type of records requested, 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 may need to discuss the request to ensure they understands what records are being requested.
Records may be requested via the following methods:
Submit a request via the Chesapeake FOIA Portal.
- Direct requests to the City's Freedom of Information Act Officer, Monica Wilburn, by:
The City's Freedom of Information Act Officer may also be contacted with questions concerning requesting records from the City of Chesapeake.
Freedom of Information Act Officers
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:
The City of Chesapeake's Responsibilities in Responding to FOIA Requests
- The City of Chesapeake must respond to a FOIA request within five working days of receipt. "Day One" is considered the day after the request is received. The five-day period does not include weekends, holidays, or closures for inclement weather.
- In most cases, the reason behind the request for public records is irrelevant, and the requestors do not have to state why they want the records. The exception to this is when the reason for the request will determine whether the records can be released, as in requests for Social Services records.
- The City of Chesapeake requires requestors provide their name and legal address.
- FOIA requires that the City of Chesapeake make one of the following responses to the request within the five-day time period:
- The City of Chesapeake denies the request because the requestor is 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.
- The City of Chesapeake provides the requested records in their entirety.
- The City of Chesapeake withholds all the requested records because they are subject to a specific statutory exemption. If all the records are being withheld, the City must provide a written response identifying the volume and subject matter of the records being withheld and state the specific section of the Code of Virginia that allows the records to be withheld.
- The City of Chesapeake provides some of the requested records 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 the remainder of the record. The City of Chesapeake must provide a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
- The City of Chesapeake reports that the requested records cannot be found or do not exist (the City of Chesapeake does not have them). However, if the City knows that another public body has the requested records, the City of Chesapeake must include contact information for the other public body.
- The City of Chesapeake estimates that the cost to fulfill the request will be over $200 and requires payment of a deposit in the amount of the estimate before beginning work on the response.
- The requestor has requested an advance cost estimate, and the City of Chesapeake provides the estimated cost to fulfill the request. If the estimated cost is under $200, no advance payment is necessary.
- If it is not practically possible for the City of Chesapeake to respond to the 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 seven additional working days to respond to the request, for a total of twelve working days.
- If the City cannot provide the records within twelve working days without disrupting the City of Chesapeake's other municipal responsibilities, the City may petition the court for additional time to respond to the request. However, FOIA requires that the City make a reasonable effort to reach an agreement with the requestor concerning the production of the records before the City of Chesapeake goes 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 and shall make all reasonable efforts to supply the requested records at the lowest possible cost. 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. Prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether he would like to request a cost estimate in advance of the supplying of the requested records as set forth in subsection F of § 2.2-3704 of the Code of Virginia.
Requestors may be required to reimburse the City for the City’s actual costs incurred in fulfilling FOIA requests. This generally includes staff time spent searching for records. In some cases, it also includes the costs of materials. Requestors are not required to pay overhead costs.
- The five days that the City has to respond to the request does not include the time between when the City provides a requested cost estimate and when the cost estimate is approved. If no response is received from the requestor in thirty days, the request will be closed.
- The City of Chesapeake may require payment of a requestor’s previous FOIA bills over thirty days past due before it will respond to a 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
For questions about whether the City of Chesapeake has specific record(s), please contact the Records/Freedom of Information Act Manager, Monica Wilburn, 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(8))
- 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 and its corresponding Freedom of Information Act Guidelines and Procedures.
As a general policy, the City will claim the exemptions listed in the Act because of the sound public policies behind such exemptions.