2018 FOIA Session

1. 2018 FOIA Session Virginia Association of Soil and Water Conservation Districts Annual Meeting- Dec. 3-4, 2018 Roanoke, Virginia Presented by: Robert Drewry

2. Disclaimer • The following presentation is neither an official or unofficial opinion or position of the Attorney General or Office of the Attorney General. Rather, it is the advice and information of the attorney providing the presentation.

3. Biography • Robert Drewry, Assistant Attorney General • Born in Lynchburg, Virginia • Attended the University of Richmond for Undergrad and Law School. • Graduated Law School in 2016. • My family owns an 1100 acre farm in Drewryville, Virginia; part of the Chowan Basin SWCD. • In my free time, I enjoy anything in the outdoors. • My role at the AG’s office consists of representing the 47 SWCD’s, as well as the Board of Accountancy, the Virginia Racing Commission, and helping with VEDP and GoVirginia.

4. Outline • General Overview • Records • Exclusions to Production of Records • Meetings • Closed Meetings • Penalties • Procedures for Enforcing FOIA • Random Issues • Questions

5. General Overview • Freedom of Information Act (“FOIA”) • Codified in Section 2.2-3700 of the Code of Virginia. • All Elected Officials, District Directors, should be familiar with the provisions. • Staff should also be familiar with statute. • Purpose is to ensure citizens of the Commonwealth have ready access to the workings of their government. • Records • Meetings • https://www.youtube.com/watch?v=50oddI3nUe0

6. WHY DO YOU NEED TO KNOW ABOUT FOIA? • Any person elected, reelected, appointed, or reappointed to any body not excepted from this chapter shall . . . (ii) read and become familiar with the provisions of this chapter. Va. Code Section 2.2-3702 • The provisions of the FOIA chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.

7. General Overview Cont.- 2.2-3704.2 • FOIA Officer: Every District should have a FOIA Officer. • This person is the point of contact for members of the public and is responsible for coordinating the District’s Response. • Identity of FOIA Officer should be on website, if you have one, or be easily obtainable and identifiable. • Named FOIA Officer SHALL be trained annually, either by Counsel for the District, the FOIA Advisory Council, or through an online course offered by the FOIA Council.

8. Posting of Notice of Rights and Responsibilities. 2.2-3704.1 • All Districts should have on their website, or publically available a document providing requestors with their rights and responsibilities under FOIA. • A good example is the Notice provided by Culpeper SWCD. • In the event a District does not have this information, the FOIA Council will assist.

9. Records: Duty to Redact. 2.2-3704.01 • If a document is responsive except for one sentence, the District has a duty to provide the document to requestor with the non-responsive or excluded information redacted. • Impermissible to withhold entire document when information could be redacted. • Ex: Document contains information that is publically available, pictures from a site visit, or something else. The District organizes the photos by Farm Tract Number. Farm Tract Numbers are protected by Farm Bill. That can be redacted and pictures can still be released.

10. Records: • "Public records" means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.

11. Public Records • All records are open to public inspection. • Unless an Exception • Who may request records? • Any citizen of the Commonwealth of Virginia • Reps of Newspapers or Magazines with Virginia circulation • Reps of radio or TV stations with a broadcast in the Commonwealth • Requestor may choose either inspection or copying. • District FOIA officer can request the name and legal address of the requestor.

12. What is a FOIA Request for Records • A FOIA request can take many forms- including an oral request. • The request does not have to say “this is a FOIA request” • Simply have to request public records. • The only requirement is the request has to be reasonably specific. • Can’t just say give me everything.

13. What to do after a request • Once a request is received- the District has 5 working days of receiving the request to respond with one of five responses: • Provide All Records responsive to the request. • Respond in Writing to Requestor that all records are being withheld. Must identify the volume and subject matter of records withheld, as well as the specific exemption. • Respond in Writing that Requested records are being provided in part and withheld in part. For those being withheld-provide volume and subject matter of records withheld, as well as the specific exemption. • Respond in Writing that requested records either could not be found or do not exist. • If the District does know who may have the records- the written response shall include the contact information for the other public body. • Respond in writing that it is not practicably possible to provide the requested records or determine if they are avaiable within the 5 days. In response, must identify why it is not possible, but this response provides an extra 7 working days to respond.

14. What Records Are Exempt? • Information protected by the Farm Bill • Tract Numbers, Tax-IDs, etc. • However, remember duty to redact. • FOIA incorporates other laws’ requirements. • Written Advice of legal counsel, or other materials protected by attorney-client privilege. • Records recorded in or for use in closed session. • Account numbers or routing numbers for any person. • 172+ exemptions that relate to very specific issues or agencies. Construed Narrowly. • If you think an exemption applies, but are unsure- ASK. • The exemptions are also discretionary.

15. Can I charge a requestor? • 2.2-3704(F) allows the District to charge a requestor. • “May make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.

16. Definition of “Meeting” • Meetings include work sessions • In person or through telephonic or video equipment. • Three is Magic Number!! • Requires three members or (ii) a quorum, if less than three. • Must provide notice at least 3 working days prior to meeting. • Date, Time, and Location • Posted on at least the Website

17. What is Not a Meeting? • If three or more members of the SWCD are in public together- when is it not a meeting? • When no part of the purpose of such gathering is the discussion or transaction of public business. • The gathering was not called or prearranged with any purpose of discussing or transacting any business of the District.

18. Requirements • All meetings are to be open to the public. • Public includes the media • Any person may photograph, film, record, or otherwise reproduce any portion of a meeting required to be open. • Votes must be done in public. • May not be secret or written.

19. Agenda/Meeting Packets • At least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body. • Generally a good idea to provide numerous packets for public consumption.

20. Minutes • Minutes, invluding draft minutes, and all other records of open meetings, including audio/visual records, are deemed to be public records and are subject to FOIA. • Draft Minutes, following a meeting, should be posted ASAP, but no later than 10 working days after meeting. • Final Minutes are posted within 3 working days of final approval.

21. Closed Meetings • In General, Districts will not need to hold a closed meeting. • However, there are certain reasons for a closed meeting. • Consultation with legal counsel and briefings by counsel pertaining to actual or probable litigation. 3711(A)(7)–(8). • Just because a lawyer is present does not necessitate closed meeting. • Protection of the privacy of individuals in personal matters not related to public business. 3711(A)(4). • Personnel Matters. 3711(A)(1)

22. Going into Closed Session • In order to convene a closed session meeting, the Public Body, in open session and by an affirmative vote, approve a motion that: • (i) identifies the subject matter requiring the closed session. • (ii) states the purpose of the meeting, and • (iii) makes specific reference to the applicable exemption provided by statute.

23. Within Closed Meeting • Discussion is restricted solely to the matters contained in the motion. • The District may not take any action (votes) in a closed meeting. • Limited to discussion. • Minutes are not required, but may be taken. • If taken, exempted from disclosure in FOIA.

24. Conclusion of the Closed Meeting • At the conclusion of the closed meeting, the District shall immediately reconvene into the open meeting and certify, via motion/resolution that the District: • “heard, discussed, or considered only public business matters lawfully exempted from open meeting requirements under the Virginia Freedom of Information Act and only such public business matters as were identified in the motion by which the closed meeting was convened.” • Roll Call Vote required.

25. Penalties: 2.2-3714 • Penalties for violating FOIA are Civil. • Violation by a District Director or Staff Member. • Individual Liability. • Judge must find that you knowingly and willfully violated FOIA. • 1st Violation: Min. of $500 and Max of $2000 • 2nd + Violation: Min of $2000 and Max of $5000

26. Procedure to Enforce FOIA: 2.2-3713 • If a Requester believes they have been denied the rights afforded to them under FOIA, they may file an injunction or petition for mandamus with an affidavit showing good cause. • Many are unfamiliar with the Code and the lawsuit may be heard within 7 days. • Lawsuits may result in not only turning over documents, but also financial penalties like the just mentioned civil penalties, but potential costs associated with the lawsuit.

27. Random Issues • Subpoenas: 2.2-3703.1 • If a District receives a Subpoena DucesTecum (Subpoena for Documents), the subpoena is a mandatory disclosure-regardless of whether there is an exemption in FOIA. • An example is for personnel records. • If records are otherwise protected by law-such as Farm Bill information- that info may not need to be disclosed in subpoena- but the circumstances vary.

28. FOIA Resources • For questions and legal advice on exemptions and other matters, ask counsel at OAG. • In advance, if possible, please! • FOIA Council • http://foiacouncil.dls.virginia.gov/ • Creates guides and reference materials • Issues advisory opinions

29. Questions? • Thanks for your time, participation, and attention. • If you have any FOIA questions in the future, it is easiest to lay out the question via e-mail. Contact Info: Robert Drewry rdrewry@oag.state.va.us 804-371-8329