§ 2.1-342 Public records to be open to inspection; procedure for requesting records and responding to request; charges
This is the guts of the statute as to documents. It tells you what you can get and provides the procedures for getting it.
A. Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.
This is the heart of the Act: The public records must be made available to citizens.
The public body must produce the records "[e]xcept as otherwise specifically provided by law." The term "by law" means "by statute." If that were not clear, § 2.1-342.B.2 would make it clear that there must be a "specific Code section" that authorizes withholding of the records.
The public body is not required to produce records outside the regular office hours of the custodian of the records.
Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. The custodian of such records shall take all necessary precautions for their preservation and safekeeping.
The Act grants access to citizens of the Commonwealth and representatives of media distributed in or broadcast into the Commonwealth. In fact, most State agencies respond to citizens of other states although they are not required to do so.
B. A request for public records shall identify the requested records with reasonable specificity.
What is "reasonable specificity" probably depends on the specifics of the case. In any event, the request must be specific enough for the public body to figure out which of its records respond to the request. You probably won't get a response to a request for "all records that show Councilman X has abused his expense account"; you probably will get a response to a request for "all records of expenses incurred by Councilman X since January 1, 1998."
The request need not make reference to this chapter in order to invoke the provisions of this chapter or to impose the time limits for response by a public body.
A request for public records triggers the requiremets of the Act whether or not the request mentions the act.
Any public body which is subject to this chapter and which is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, make one of the following responses:
The public body does not have to respond or produce records if it is not the custodian of the records in question.
The public body must make its first response "promptly" and within five days in any event. This does NOT mean the public body can wait five days in every case. If it can respond more quickly, it must do so.
1. The requested records will be provided to the requester.
2. The requested records will be entirely withheld because their release is prohibited by law or the custodian has exercised his discretion to withhold the records in accordance with this chapter. Such response shall (i) be in writing, (ii) identify with reasonable particularity the volume and subject matter of withheld records, and (iii) cite, as to each category of withheld records, the specific Code section which authorizes the withholding of the records.
The public body has the discretion to give you any record whose release is not prohibited by statute. For the most part, the public body can give you everything but some trade secret information, some criminal information, and some records subject to the Privacy Protection Act. As to the rest, they may withhold the records if there is an applicable exclusion in the statutes. If they elect to withhold such records, they must tell you "with reasonable particularity" how much of what kind of record they are withholding, and they must cite the specific statute that allows them to withhold the records, and they must do this in writing.
3. The requested records will be provided in part and withheld in part because the release of part of the records is prohibited by law or the custodian has exercised his discretion to withhold a portion of the records in accordance with this chapter. Such response shall (i) be in writing, (ii) identify with reasonable particularity the subject matter of withheld portions, and (iii) cite, as to each category of withheld records, the specific Code section which authorizes the withholding of the records. When a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record.
The public body cannot withhold the entire record just if only part of it is protected. They must give you the unprotected part.
4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall be in writing and specify the conditions which make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the three preceding responses.
If you ask for lots of records, or they have to spend a bunch of time talking to their lawyers, or other circumstances make it "practically impossible" to respond within five work days, the public body can tell you in writing that they are going to take up to seven more work days to respond.
C. Any public body may petition the appropriate court for additional time to respond to a request for records when the request is for an extraordinary volume of records and a response by the public body within the time required by this chapter will prevent the public body from meeting its operational responsibilities. Before proceeding with the petition, however, the public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested.
D. Subject to the provisions of subsections G and H, no public body shall be required to create a new record if the record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body.
The public body DOES NOT have to create records to respond to your request. But see below as to databases.
E. Failure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter.
Important: If they don't answer, they have denied your request and violated the law. You can go to court and get the records and your attorney's fees. Code § 2.1-346
F. A public body may make reasonable charges for its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. 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.
The public body can charge the actual cost of responding to your request, but no special or overhead or general charges.
The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than fifty acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen.
If you ask, they must estimate the charges in advance.
In any case where a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the requested records. The period within which the public body shall respond under this section shall be tolled for the amount of time that elapses between notice of the advance determination and the response of the requester.
They can make you pay an estimated cost up front if it exceeds $200.
G. Public records maintained by a public body in an electronic data processing system, computer database, or any other structured collection of data shall be made available to a requester at a reasonable cost, not to exceed the actual cost in accordance with subsection F. When electronic or other databases are combined or contain exempt and nonexempt records, the public body may provide access to the exempt records if not otherwise prohibited by law, but shall provide access to the nonexempt records as provided by this chapter.
The law was clear before, but the '99 amendment here removed any doubt: They must give you the nonexempt information in their databases. If that information is mixed up with exempt information, they must sort it out. See below as to how they produce the information.
H. Every public body of state government shall compile, and annually update, an index of computer databases which contains at a minimum those databases created by them on or after July 1, 1997. "Computer database" means a structured collection of data or records residing in a computer. Such index shall be a public record and shall include, at a minimum, the following information with respect to each database listed therein: a list of data fields, a description of the format or record layout, the date last updated, a list of any data fields to which public access is restricted, a description of each format in which the database can be copied or reproduced using the public body's computer facilities, and a schedule of fees for the production of copies in each available form. The form, context, language, and guidelines for the indices and the databases to be indexed shall be developed by the Director of the Department of Information Technology in consultation with the Librarian of Virginia and the State Archivist. The public body shall not be required to disclose its software security, including passwords.
Public bodies shall produce nonexempt records maintained in an electronic database in any tangible medium identified by the requester, including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body shall be required to produce records from an electronic database in a format not regularly used by the public body. However, the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs. The excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation or compilation of a new public record.
Richmond has a web site and email. Thus, you can demand that they produce their electronic information in these media. If you are after, say, the list of crimes in Census Tract 102, this will be a whole lot more useful than a paper copy.
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