The Rights of Requesters and Responsibilities of Frederick County under the Virginia Freedom of Information Act
The Virginia Freedom of Information Act (FOIA), found in Virginia Code § 2.2-3700 et seq., 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 purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that its provisions be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.
Requester's FOIA Rights
- You have the right to request to inspect and/or receive copies of public records.
- You 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 general district or circuit court to compel compliance with FOIA.
Making a Request for Records from Frederick County
- You may request records by mail, fax, phone, e-mail, via this website, or in person. FOIA does not require that your request be in writing, nor do you need to specifically state that you are requesting records under FOIA. Nevertheless, the County would prefer requests to be submitted, in writing, on the County form or web page. Both are linked on this page.
- 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 the County a clear statement of what records you are requesting. However, the County 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 the County can identify and locate the records that you are seeking.
- You may only request existing records or documents. FOIA gives you a right to inspect or copy records; it does not apply to general questions about the work of the County and its public officers, officials, and employees, nor does it require the County to create a record that does not exist.
- You may choose to receive electronic records in any format used by the County 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 the County has 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.
- Frederick County shall comply with the following procedures for processing a FOIA request:
- FOIA requests should be directed to the County Administrator’s Office, as the centralized receiving center for FOIA requests.
- After receipt of the request, the County Administrator’s Office will direct the request to the appropriate departments, officials, agencies/authorities (as appropriate). Each department head, official, constitutional officer, agency/authority director is the custodian of records for his/her department/office/agency/authority and will implement and follow a process for providing FOIA requests to staff in his/her department/office/agency/authority for response.
- If a FOIA request is initially received by any department head, official, constitutional officer, agency/authority director, or employee, other than the County Administrator’s Office, the request shall immediately be forwarded to the County Administrator’s Office, for coordination of a response according to the procedures set forth in this Policy, except as otherwise provided by the County Administrator’s Office.
- If you have questions regarding accessing records from the County, please contact the County Administrator’s Office at (540) 665-5600.
- In addition, the Freedom of Information Advisory Council is available to answer any questions you may have about FOIA. The Council may be contacted by e-mail at firstname.lastname@example.org, or by phone at (804) 225-3056 or toll free 1-866-448-4100.
Frederick County's Responsibility in Responding to Your Request
- The County must respond to your request within five (5) working days of receiving it. "Day One" is considered the day after your request is received, per Va. Code § 1-210(A). The five-day period does not include weekends or holidays.
- The reason behind your request for public records from the County is irrelevant, and you do not have to state why you want the records before the County responds to your request. FOIA does, however, allow the County to ask you to provide your name and legal address.
- FOIA requires that the County make one of the following responses to your request within the five-day period:
- Provide you with the records that you have requested in their entirety.
- 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, the County will send you a response in writing. That writing will identify the volume and subject matter of the records being withheld, and state the specific section of the Virginia Code that allows the County to withhold the records.
- Provide some of the records that you have requested, but withhold other records. The County cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, the County may redact the portion of the record that may be withheld, and will provide you with the remainder of the record. The County will provide you with a written response stating the specific section of the Virginia Code that allows portions of the requested records to be withheld.
- Inform you in writing that the requested records cannot be found or do not exist (the County does not have the records you want). However, if the County knows that another public body has the requested records, the County will include contact information for the other public body in the County’s response to you.
- If it is practically impossible for the County to respond to your request within the five-day period, the County will state this in writing, explaining the conditions that make the response impossible. This will allow the County seven (7) additional working days to respond to your request.
- If you make a request for a very large number of records, and the County feels that it cannot provide the records to you within 12 working days without disrupting its other organizational responsibilities, the County will make a reasonable effort to reach an agreement with you concerning the time for producing the records. If an agreement cannot be reached, the County may petition the circuit court for additional time to respond to your request.
- Frederick County will abide by the following procedures for responding to a FOIA request:
- Staff, within each applicable department, will provide all responsive records to his/her department head or otherwise arrange with the department head regarding the response.
- All department heads shall review all submitted, responsive records, including to ensure that records required and/or allowed to be exempted, redacted, or withheld under FOIA or other applicable laws have been properly exempted, redacted, or withheld. Department heads shall also document any records that are exempted, redacted, or withheld.
- Department heads will transmit all records to the County Administrator’s Office for final coordination and the County Administrator’s Office will then transmit all records to the requester, except as otherwise provided by the County Administrator’s Office.
- If at any time during the process, a department head or the County Administrator’s Office has any legal questions about the records, responsiveness, exemptions, or withholding or redaction of records, he/she shall consult with the County Attorney.
- All Board members, other officials, constitutional officers, and agency/authority directors are requested to respond directly to the County Administrator’s Office, except as otherwise provided by the County Administrator’s Office.
- Delays in responding to a FOIA request.
- If responding personnel need clarification regarding a FOIA request, and the ambiguity can be cleared up by communication with the requester, responding personnel should contact the requester.
- Except as otherwise provided by the County Administrator’s Office, if a department head, official, constitutional officer, or agency/authority director determines that he/she or his/her staff will not be able to respond to a FOIA request within the statutory five (5) working days, he/she shall communicate with the County Administrator’s Office the need for more time and approximately how much additional time is necessary to respond to the request.
- The County Administrator’s Office shall communicate the need for an extension in writing, invoking the statutory additional seven (7) working days.
- If greater than seven (7) days is necessary, the County Administrator’s Office and responding personnel shall try to reach a reasonable agreement with the requester for more time. If a reasonable agreement cannot be reached, the County Administrator’s Office and responding personnel shall contact the County Attorney regarding filing a petition with the circuit court for additional time.
- Please see the section below about costs and deposits with regard to further possible delays in responding.
- You may have to pay for the records that you request from Frederick County. FOIA allows the County to charge for the actual costs of responding to FOIA requests. This would include items like personnel 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 the County estimates that it will cost more than $200 to respond to your request, the County will require you to pay a deposit, not to exceed the amount of the estimate, before proceeding with your request. The five days that the County has to respond to your request does not include the time between when the County asks for a deposit and when you respond.
- All deposits shall be paid by cash or by check or money order made payable to Frederick County and delivered to the County Administrator’s Office. Checks and money orders will be held and only deposited once the request is complete. Any outstanding balance due must be paid before or at the time the responding records are released. Any balance remaining from the deposit shall be returned to the requester.
- You may request that the County 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. The statutory time limits provided do not begin to run until you give the County permission to proceed, approving the estimate or by paying the deposit as required above.
- If you owe the County money from a previous FOIA request that has remained unpaid for more than 30 days, Frederick County may require payment of the past-due bill before it will respond to your new FOIA request.
- Personnel time for responses to FOIA requests that require 30 minutes or less of time spent searching and copying will not be charged to you.
- Personnel responding to your request shall have discretion to determine if his/her individual time spent responding to a FOIA request (in excess of 30 minutes) will be charged to the requester.
- The time fee charged for responses shall be based upon the annualized County pay rate, plus the total annual costs of regular County benefits, for the particular individual(s) preparing a response to a FOIA request. The County will divide the total of the annualized pay rate and annual benefits costs for the individual by 2,080 hours, to determine each hourly rate to be charged for responding to a FOIA request.
- The County will take all reasonable precautions to keep personnel time and costs to a minimum, including using lower paid personnel capable of retrieving records to respond to a request. However, in situations where a particular individual is required to search through his/her own email and files contained on his/her individual County computer or other device it shall not be unreasonable for that individual to retrieve the requested records and charge a FOIA response fee corresponding to his/her salary and benefits. In some cases, it may be necessary for multiple personnel to participate in responding to a FOIA request.
- In addition to fees for personnel time, fees charged for copying and other costs shall be as follows (the County will waive these costs, if $2.00 or less, for any one-time FOIA request):
- Copies (8½X11 black & white): $.08 per page.
- Copies (other - color and/or sizes up to/including 11X17): $.15 per page.
- Copies (other – items in excess of 11X17, as such items generally require specialized equipment to reproduce): $1.00 per page.
- A page constitutes one side of a document. A double sided document counts as two pages.
- Compact disc: $1.00 per compact disc.
- Mail: actual cost to mail the request (if more than two ounces, otherwise no charge).
- Other/specialty items (including audio/video recordings): as determined by responding personnel, based on actual cost.
Commonly Used Exemptions
- The Virginia Code allows any public body to withhold certain records from public disclosure. Commonly used exemptions that Frederick County may use are:
- Personnel records (Virginia Code § 2.2-3705.1(1))
- Records subject to attorney-client privilege (Virginia Code § 2.2-3705.1(2)) or attorney work product (Virginia Code § 2.2-3705.1(3))
- Appraisals and cost estimates of real property subject to a proposed purchase, sale, or lease, prior to the completion of such purchase, sale, or lease (Virginia Code § 2.2-3705.1(8))
- Records relating to the negotiation and award of a contract, prior to a contract being awarded (Virginia Code § 2.2-3705.1(12))
- For a full list of exemptions, see Virginia Code § 2.2-3705.1 et seq.