Freedom of Information Act (FOIA)

FOIA Rights & Responsibilities

The Rights of Requesters and the Responsibilities of the Town of New Market, Virginia under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (FOIA), located at § 2.2-3700 et seq. of the Code of Virginia, guarantees citizens of the Commonwealth and representatives of the media access to public records held by public bodies, public officials, and public employees.

A public record is any writing or recording — regardless of whether it is 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. All public records are presumed to be open, and may only be withheld if a specific, statutory exemption applies.

The policy of FOIA states that the purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.

Your FOIA Rights

Citizens of Virginia and certain members of the media have the right to request to inspect or receive copies of public records, or both.

Citizens of Virginia and certain members of the media have the right to request that any charges for the requested records be estimated in advance.

If you believe that your FOIA rights have been violated, you may file a petition in district or circuit court to compel compliance with FOIA. Alternatively, you may contact the FOIA Council for a nonbinding advisory opinion.

Making a Request for records from the Town

You may request records by U.S. Mail, fax, e-mail, in person, or over the phone. FOIA does not require that your request be in writing, nor do you need to specifically state that you are requesting records under FOIA.

From a practical perspective, it may be helpful to both you and the person receiving your request to put your request in writing. This allows you to create a record of your request. It also gives us a clear statement of what records you are requesting, so that there is no misunderstanding over a verbal request. However, we cannot refuse to respond to your FOIA request if you elect to not put it in writing.

Your request must identify the records you are seeking with “reasonable specificity.” This is a common-sense standard. It does not refer to or limit the volume or number of records that you are requesting; instead, it requires that you be specific enough so that we can identify and locate the records that you are seeking.

Your request must ask for existing records or documents. FOIA gives you a right to inspect or copy records; it does not apply to a situation where you are asking general questions about the work of the Town, nor does it require the Town to create a record that does not exist.

You may choose to receive electronic records in any format used by the Town in the regular course of business.

For example, if you are requesting records maintained in an Excel database, you may elect to receive those records electronically, via e-mail or on a computer disk, or to receive a printed copy of those records.

If we have questions about your request, please cooperate with staff’s efforts to clarify the type of records that you are seeking, or to attempt to reach a reasonable agreement about a response to a large request. Making a FOIA request is not an adversarial process, but we may need to discuss your request with you to ensure that we understand what records you are seeking.

To request records from the Town, you may direct your request to:

Nathan Garrison, Town Manager
9418 John Sevier Road
P.O. Box 58
New Market, Virginia 22844
Office (540) 740-3432
Fax (540) 740-9204
E-mail n.garrison@newmarketvirginia.com

You may also contact either of the above individuals with questions you have concerning requesting records from the Town. In addition, the Freedom of Information Advisory Council is available to answer any questions you may have about FOIA. The Freedom of Information Advisory Council may be contacted by e-mail at foiacouncil@dls.virginia.gov, or by phone at (804) 225-3056 or [toll free] 1-866-448-4100.

The Town’s Responsibilities in Responding to Your Request

The Town 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.

The reason behind your request for public records from the Town is irrelevant, and you do not have to state why you want the records before we respond to your request. FOIA does, however, allow the Town to require you to provide your name and legal address.

FOIA requires that the Town make one of the following responses to your request within the five-day time period:

We provide you with the records that you have requested in their entirety.

We withhold all of the records that you have requested, because all of the records are subject to a specific statutory exemption. If all of the records are being withheld, we must send you a response in writing. That writing must identify the volume and subject matter of the records being withheld, and state the specific section of the Code of Virginia that allows us to withhold the records.

We provide some of the records that you have requested, but withhold other records. We cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, we may redact the portion of the record that may be withheld, and must provide you with the remainder of the record. We must provide you with a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.

We inform you in writing that the requested records cannot be found or do not exist (we do not have the records you want). However, if we know that another public body has the requested records, we must include contact information for the other public body in our response to you.

If it is practically impossible for the Town to respond to your request within the five-day period, we must state this in writing, explaining the conditions that make the response impossible. This will allow us seven additional working days to respond to your request, giving us a total of 12 working days to respond to your request.

If you make a request for a very large number of records, and we feel that we cannot provide the records to you within 12 working days without disrupting our other organizational responsibilities, we may petition the court for additional time to respond to your request. However, FOIA requires that we make a reasonable effort to reach an agreement with you concerning the production or the records before we go to court to ask for more time.

Costs

The Town may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. The Town shall not 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 Town. Any duplicating fee charged by the Town shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of § 2.2-3704 of the Code of Virginia.

You may have to pay for the records that you request from the Town. FOIA allows us to charge for the actual costs of responding to FOIA requests. This would 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 we estimate that it will cost more than $200 to respond to your request, we may require you to pay a deposit, not to exceed the amount of the estimate, before proceeding with your request. The five days that we have to respond to your request does not include the time between when we ask for a deposit and when you respond.

You may request that we estimate in advance the charges for supplying the records that you have requested. This will allow you to know about any costs upfront, or give you the opportunity to modify your request in an attempt to lower the estimated costs.

If you owe us money from a previous FOIA request that has remained unpaid for more than 30 days, the Town may require payment of the past-due bill before it will respond to your new FOIA request.

Types of records

The following is a general, but not an exhaustive, description of the types of records held by the Town:

Minutes from meetings of the Town Council or committees
Personnel records concerning employees and officials of the Town
Records of contracts which the Town has entered into
Correspondence with Town staff and members of the Town Council
Records related to taxes collected by the Town
Records prepared by or for the Town Attorney, including but not limited to memoranda and correspondence
Information related to the finances of the Town, including the Town budget and expenditures of Town departments
Records related to real property located within the Town, including zoning records
Records created by Town staff related to the general business and function of the Town and its departments
Records created by the Town Police Department, including criminal investigative records, incident reports, and call logs

If you are unsure whether the Town has the record(s) you seek, please contact:

Nathan Garrison, Town Manager
9418 John Sevier Road
P.O. Box 58
New Market, Virginia 22844
Office (540) 740-3432
Fax (540) 740-9204
E-mail: n.garrison@newmarketvirginia.com

Commonly used exemptions

The Code of Virginia allows the Town to withhold certain records from public disclosure. Although the Town may elect to withhold any record which is exempt or excluded from the Freedom of Information Act, the Town 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))
Financial account numbers (§ 2.2-3705.1 (13)) and public utility account numbers (§ 2.2-3705.7(7))
Personal information provided to the Town for the purpose of receiving electronic mail from the Town. (§ 2.2-3705.1 (10))
Working papers and correspondence of the Town Manager (§ 2.2-3705.7 (2))
Confidential tax information acquired by the Treasurer in the performance of his/her duties (§ 2.2-3705.7(1))
Criminal investigative files (§ 2.2-3706(A)(2)) and other records maintained by the Town’s Police Department which contain identifying information that would jeopardize the safety or privacy of any person.

Policy regarding the use of exemptions

Any record will be withheld if the release of that record would violate state or federal law. If the release of a record is discretionary under the Freedom of Information Act, the Town will evaluate whether to release the record on a case-by-case basis. In general, the Town has the following policies:

The general policy of the Town is to invoke the personnel records exemption in those instances where it applies in order to protect the privacy of employees and officials of the Town.
The general policy of the Town is to invoke the contract negotiations exemption whenever it applies in order to protect the Town’s bargaining position and negotiating strategy.
The general policy of the Town is to invoke the exemption for records subject to the attorney-client privilege or attorney work product privilege whenever these privileges apply.
The general policy of the Town is to invoke the exemption for records which are working papers and correspondence of the Town Manager whenever this exemption applies.
The general policy of the Town is to invoke exemptions which protect the personal information of Town residents, including but not limited to the exemptions for financial account numbers and public utility account numbers.
The general policy of the Town is to invoke exemptions for criminal investigative files and other records maintained by the Town’s police department whenever an exemption applies.