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Herring: Localities may not modify, extend FOIA deadlines

Attorney General Mark Herring says that localities cannot modify or indefinitely extend the deadlines for responding to Freedom of Information Act Requests.

In an advisory opinion, Herring said that the time limits for responding to requests for records “remain in place and must be complied with even during the current emergency.”

The opinion was issued in response to a request from Del. Sally Hudson, D-Charlottesville, online news outlet Charlottesville Tomorrow and the Virginia Coalition for Open Government after Albemarle County Public Schools filled multiple requests past the state’s deadline, citing a county ordinance put in place due the pandemic.

County Spokesperson Emily Kilroy said the county attorney is reviewing the advisory opinion and will be bringing the findings to the Board of Supervisors at an upcoming meeting.

In March, Albemarle adopted an emergency ordinance to continue government functions in response to the pandemic. In that ordinance, and a later non-emergency ordinance, the county “extended indefinitely as may be necessary” FOIA deadlines set in state code.

In September, the board voted to update that ordinance, in part to include a change in that language to, “may be extended to the earliest date thereafter practicable.”

In Herring’s opinion, he said the state code that allows localities to adopt ordinances that provide a method to assure continuity in their government “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”.

Public bodies in Virginia are required to respond to records requests in five work days.

State law requires FOIA responses be provided in one of five ways: provide the records in full, provide the records in part but with portions withheld as authorized by statute, advise the requester that the records are being withheld entirely as authorized by statute, advise the requester that the records could not be found or do not exist or advise the requester that it is not possible to provide the records or to determine their availability within the five-work-day period and provide an explanation of the conditions that make a response impossible.

If the last response is made within the five-work-day period, the statute provides that the public body has an additional seven work days to respond to the requester.

Charlottesville Tomorrow wrote about the indefinite extension, involved the University of Virginia First Amendment Clinic, and eventually received documents it requested from the school division.

According to the county, 375 FOIA requests were received by the county government and responded to between March 27 and Aug. 1, but that number does not include requests made to the school division, which maintains its own requests.

The Daily Progress filed at least five requests to the county government in that timeframe and responses took between five and 25 work days, with three of them over the five-day time limit for an initial response.

The county attorney’s office said only one was considered over the limit, since only one took longer than 12 days to generate a response.

Since Aug.1, another seven requests have been filed by the Progress and responses took between two and 16 work days.

“…Even during a state of emergency, ‘the requirements of VFOIA, open government, and transparency remain critically important,’” Herring said in the order.


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