AG Herring says localities cannot delay FOIA requests during emergency order

AG Herring says localities cannot delay FOIA requests during emergency order

ALBEMARLE Co., Va. (WVIR) - On Monday, Virginia Attorney General Mark Herring released an opinion stating localities cannot delay Virginia Freedom of Information Act (VFOIA) requests during their emergency order relating to the COVID-19 pandemic.

“VFOIA calls for transparency in government and establishes specific time limits for responding to requests for records," the opinion reads. “The requirements of VFOIA, open government, and transparency remain critically important.”

Herring said any emergency order “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”

The request for an opinion was made by Del. Sally Hudson, who represents the Charlottesville area in the state House of Delegates.

The opinion may be aimed at Albemarle County. In its original emergency ordinance, which the Board of Supervisors passed unanimously, the county said: “any deadline by which a response to a request for records under the [VFOIA] is due... are extended indefinitely as may be necessary.”

The Board of Supervisors then updated the emergency ordinance at its Sept. 16 meeting, saying the records “may be extended to the earliest date thereafter practicable in order to respond to the request.”

However, Herring’s opinion says that the record requests must do one of the following “within five working days of receiving the request.”

  • 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
  • Advise the requester that it is not practically 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 “shall have an additional seven work days” to respond to the requester under one of the four preceding responses

Albemarle County Director of Communications Emily Kilroy told NBC29: “The county attorney is reviewing the opinion and will bring a recommendation to the Board of Supervisors at an upcoming meeting.”

The Board is next scheduled to meet on Wednesday, Oct. 7.

Copyright 2020 WVIR. All rights reserved.