Herring gives cities and counties five options on how to respond

RICHMOND-Virginia cities and counties can’t suspend Freedom of Information Act laws because of the pandemic. Attorney General Mark Herring issued that statement Monday, filing an advisory opinion in response to a request from Del. Sally Hudson (D-Charlottesville). The FOIA issue popped up several times over the last seven months, as officials in multiple cities and counties tried to limit access. 

In one situation, the Charlottesville Tomorrow news site fought to get records from Albemarle County Public Schools. Albemarle passed an ordinance in March, claiming that due to the pandemic, they had the authority to ignore state deadlines. Virginia requires all cities and counties to respond to FOIA requests within a five day period. 

“Any deadline by which a response to a request for records under the Virginia Freedom of Information Act (Virginia Code § 2.2-3700 et seq.) is due, and the time for which the records sought may be inspected or produced, are extended indefinitely as may be necessary in order to respond to the request or allow any records to be inspected or produced,” the March ordinance says. 

Albemarle officials argued they were doing this out of a concern for public safety. They didn’t want anyone to come into the county buildings for paper records during a pandemic. Roanoke City Council used the same argument in April, as they passed a very similar ordinance. City officials claimed they just couldn’t fill the requests in time, due to a lack of on-site staff. 

Herring rejects that argument

Pointing out the five day rule is a part of state law, Herring said cities and counties can’t simply “modify or indefinitely extend the deadlines for responding to [FOIA] requests.” Even during a pandemic, he said, open government is an essential need. 

“[t]he time limits for responding to requests for records in VFOIA remain in place and must be complied with even during the current emergency,” Herring wrote. 

More than that, government officials who refuse to follow the FOIA rules will be violating state laws, he cautioned. And that can lead to significant penalties. 

“Virginia Code § 15.2-1413 does not authorize a locality to suspend VFOIA’s time limits for responding to requests for records,” Herring wrote. “[The Code also] does not authorize a locality to enact an ordinance that modifies or indefinitely extends the time limits for responding to requests for records set forth in VFOIA”.

Herring pointed out cities and counties have options, however. The law, he said, states that you have to do one of five things before the deadline. Cities or counties can: 

• Provide the records in full
• Provide the records in part but with portions withheld as allowed
• Let the person requesting the files know you’re withholding records entirely as authorized by statute
• Tell the person asking that you couldn’t find the records or that they don’t exist.

And then there’s the fifth option. A city or county can tell the person it’s not practically possible to turn over the records in a five day period. If that’s the case, they have an extra seven days to provide the material.