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Rights & Responsibilities

The Rights of Requesters and the Responsibilities of VIRGINIA COMMONWEALTH UNIVERSITY under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (“FOIA”), located § 2.2-3700, et seq., of the Code of Virginia, provides to citizens of the Commonwealth and representatives of the media the right to access public records of public bodies, public officials, and public employees, subject to certain exceptions that are identified in the FOIA.

A public record is any writing or recording -- regardless of form (e.g., 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. Public records are presumed to be open and may be withheld only if a specific statutory exemption applies.

The stated purpose of the FOIA is to promote an increased awareness of governmental activities. In furtherance of this policy, the FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption from access must be interpreted narrowly.

FOIA Rights

Citizens of Virginia and representatives of media operating in Virginia have the following rights under the FOIA:

• The right to request to inspect or receive copies of public records, or both.
• The right to request that any charges for the requested records be estimated in advance.
• The right to file a petition in district or circuit court to compel compliance with FOIA if it is believed that rights under the FOIA have been violated.

Making a Request for Records From Virginia Commonwealth University (VCU)

• Requests for access to records may be made by U.S. Mail, fax, e-mail, in person, or over the phone. The FOIA does not require that a request be in writing or that the FOIA be specifically referenced in the request.
  • From a practical perspective, it generally is helpful to both the requester and the person receiving the request at VCU for the request to be reduced to writing. This creates a record of the request and should provide a clear statement of the records that are being requested.
• Requests must identify the records that are being sought with “reasonable specificity.”  This is a common-sense standard. It does not refer to or limit the volume or number of records that are being requested; instead, it requires that requests be specific enough to allow VCU to identify and locate the records that are being sought.
• The request must seek access to existing records or documents. The FOIA does not require the production of information that is not a part of records or documents. Neither does it require the creation of records that do not exist.
• The request may seek access to electronic records in any format used by VCU in the regular course of business.
  • For example, if the requested records are maintained in an Excel database, one may elect to receive those records electronically, via e-mail or on a computer disk, or to receive a printed copy of those records.
• Cooperation with the efforts of VCU’s staff to clarify the type of records that are being sought, or to attempt to reach a reasonable agreement on a response to a request for a large volume of records is strongly encouraged. Making a FOIA request is not an adversarial process but it may be necessary to discuss a particular request to ensure that the nature and scope of the request is fully understood.

Requests for records from VCU may be directed to the Office of Communication and Public Relations for VCU, P.O. Box 842036, Richmond, VA 23298, phone (804) 828-6057, fax (804) 828-2018, or e-mail Pam Lepley at pdlepley@vcu.edu. Questions concerning requests for records from VCU may also be directed to that office. In addition, the Freedom of Information Advisory Council is available to answer questions about FOIA. The Council may be contacted by e-mail at www.foiacouncil@leg.state.va.us , or by phone at (804) 225-3056 or [toll free] 1-866-448-4100.

VCU’s Responsibilities in Responding to a FOIA Request

• VCU 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.
• While one need not identify the reason for one’s request for access to VCU’s records, the FOIA does allow VCU to ask the requesting individual to provide his/her name and legal address and to seek clarification of any request.
• The FOIA requires that VCU make one of the following responses to your request within the five-day time period:
  1. Provide the records that have been requested in their entirety.
  2. Withhold all of the records that have been requested because all of the records are subject to a specific statutory exemption. If all of the records are being withheld, a written response must be provided identifying the specific section of the Code of Virginia that permits the withholding of the records.
  3. Provide some of the records that have been requested, but withhold other records. An entire record may not be withheld if only a portion of it is subject to an exemption. In that instance, the protected portion of the record may be redacted and the remainder of the record will be supplied. A written response citing the specific section of the Code of Virginia that allows portions of the requested records to be withheld will be supplied.
  4. If it is practically impossible for VCU to respond to a FOIA request within the five-day period, a written response to this effect must be supplied, in which case the FOIA permits seven additional working days to respond to the request.
• If a large volume of records is requested or if other circumstances would render it difficult or impossible to provide the requested records within the statutory time frames, the FOIA requires that a reasonable effort be made to reach an agreement concerning the production of the records. If an agreement cannot be reached, it may be necessary for VCU to seek permission for additional response time through the courts.

Costs

• The FOIA allows VCU to charge for the actual costs of responding to FOIA requests. This could include items like 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.

• If the estimated cost of supplying requested records exceeds $200, VCU may require the requesting party to pay a deposit, not to exceed the amount of the estimate, before proceeding with your request. The statutory periods of time for responding to FOIA requests will be held in abeyance pending resolution of the cost issues.

• The requesting person may request that VCU estimate in advance the charges for supplying the records that have been requested. Knowing about any costs in advance will provide an opportunity to modify a request in an attempt to lower the estimated costs.

• If money from a previous FOIA request has remained unpaid for more than 30 days, VCU may require payment of the past-due bill before it will respond to a new FOIA request from the same individual.

Commonly Invoked Exceptions

• The Code of Virginia allows any public body to withhold certain records from public disclosure. VCU commonly withholds records subject to the following exemptions:
• 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 (§ 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))
• Scholastic records (§ 2.2-3705.3)
• Presidential Working Papers (§ 2.2- 3705.7.2)
• Records pertaining to administrative investigations (§2.2-3705.3)
• Records of a proprietary nature produced by faculty or staff in the conduct of research on medical, scientific, technical or scholarly issues. (§ 2.2-3705.4.4)
• Health and public safety and social service records (§§ 2.2-3705.2 and 2.2-3705.5)

VCU Faculty/Staff Responsibilities Upon Receipt of FOIA Request

The VCU Office of the General Counsel is available to assist VCU faculty and staff in the determination of whether requested records are subject to the exceptions allowed by the FOIA. Although FOIA requests should be directed to Communications and Public Relations, requesters may choose to send the request directly to a faculty member or department at VCU. Requests received by individuals or departments are subject to the same rights and responsibilities and time limits under the FOIA as are noted above. A department or individual that receives a FOIA request should do the following:

• Date stamp the request if in writing. Although a written request is not required, a requester may be asked politely if he/she is willing to submit a written request and VCU will provide the name and address of Communications and Public Relations to which requests should be sent. If the requester makes a verbal request, a note of the date of the request, the name, address, telephone number of the requester and the requested records should be made.
• Immediately notify Communications and Public Relations (telephone 828-6057; fax 828-2018; e-mail pdlepley@vcu.edu) and the Office of the General Counsel (telephone 828-6610; fax 828-6614) of the request and provide the information supplied by the requester.
• Certain records may be excluded from the requirements of FOIA. Approval of the Office of the General Counsel should be obtained prior to providing any requested records that would qualify for an exception.

Other Useful Links

• http://dls.state.va.us/foiacouncil.htm
• http://www.opengovva.org/foia_acts/foiacurrent.htm