Freedom of Information Act (FOIA)

The Virginia Freedom of Information Act (FOIA), set out in § 2.2-3700 et. seq. of the Code of Virginia, guarantees citizens of the commonwealth 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 Virginia Department of Transportation (VDOT) maintains a wide variety of public records including, but not limited to:

• Traffic studies.
• Transportation project files.
• Regulations, policies and procedures related to state transportation.
• Studies conducted by and for VDOT.
• Transportation statistics.
• Financial and budgetary information.
• General information concerning current and proposed construction and maintenance projects, special-purpose programs (revenue sharing, recreational access, economic development access), and procurement.

The policy of FOIA states that the purpose of FOIA is to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of the government.

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

• You have the right to request to inspect or receive copies of public records, or both.
• 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 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 VDOT

• 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 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 you be specific enough so we can identify and locate the records 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 VDOT, nor does it require VDOT to create a record that does not exist.
• You may choose to receive electronic records in any format used by VDOT 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 email 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 them. To request records from VDOT, direct your request to Holly Jones in the Governance and Legislative Affairs Division. Making a FOIA request is not an adversarial process, but we may need to discuss your request with you to ensure we understand what records you are seeking.

To request records from VDOT, you may direct your request to:

Holly Jones
VDOT Annex Building, 1401 E. Broad St., 11th floor, Richmond, VA 23219
holly.jones@vdot.virginia.gov
804-371-8696

You may also contact her with questions you have concerning requesting records from VDOT.

In addition, the Freedom of Information Advisory Council is available to answer any questions you may have about FOIA. The Council was created to issue opinions on the operation and application of FOIA, to publish educational materials, and to provide training about FOIA. However, please be aware that the Council is not a records repository and does not process records requests on behalf of other public bodies.

The Council may be contacted by e-mail at foiacouncil@dls.virginia.gov, or by phone at 804-698-1810 or toll free at 866-448-4100.

VDOT’s responsibilities in responding to your request

• VDOT 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 VDOT is irrelevant, and we cannot ask you why you want the records before we respond to your request. FOIA does, however, allow VDOT to ask you to provide your name and legal address.
• FOIA requires that VDOT make one of the following responses to your request within the five-day time period:
1. We provide you with the records that you have requested in their entirety.
2. 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.
3. 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.
4. If it is practically impossible for VDOT 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.
5. 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 you make a request for a very large number of records, and we feel we cannot provide the records to you within 12 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

A public body may make reasonable charges, not to exceed its actual cost incurred, in accessing, duplicating, supplying, or searching for the requested records and shall make all reasonable efforts to supply the requested records at the lowest possible cost.

• 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.
• Thus, you may have to pay for the records that you request from VDOT. 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.

Subsection F of § 2.2-3704 of the Code of Virginia provides that, prior to conducting a search for records, the public body shall notify the requester in writing that the public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records and inquire of the requester whether they would like to request a cost estimate in advance of the supplying of the requested records. The public body shall provide the requester with a cost estimate if requested.

• Thus, you may request that we estimate in advance the charges for supplying the records you have requested. This will allow you to know about any costs up front, or give you the opportunity to modify your request in an attempt to lower the estimated 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.
• If you owe us money from a previous FOIA request that has remained unpaid for more than 30 days, VDOT may require payment of the past-due bill before it will respond to your new FOIA request.

Section 2.2-3704.1 (7) of the Code of Virginia requires public bodies to develop a written policy explaining how the public body assesses charges for accessing or searching for records and note the current fee charged.

VDOT charges an hourly labor rate to search for, review and redact records and the hourly rate that is applied is dependent upon the location of the records. VDOT’s organization consists of nine construction districts located throughout the state and a central office, which is located in Richmond. The hourly rate applied for each of the nine construction districts and central office is based on the average rate for an administrative position (role code 19013) at that location. Provided below are the hourly rates for each VDOT location:

VDOT also charges for the production of records if hard copies are requested or if a CD, flash drive or hard drive is needed to mail electronic records that are too large to be transmitted electronically. Electronic records sent via email or by other electronic means are not assessed a production charge. Charges associated with the production of records are set out below:

There are separate production charges for records in the custody of the Location and Design (L&D) Division within Central Office, such as prints of documents, plan sheets, CDs, continuous rolls, aerial photographs, mosaics, and topographic mapping. These items are listed in the Instruction and Informational Memorandum Number IIM-LD-8.18. The link is provided below. Please note that official documents and records of VDOT released in response to FOIA requests are NOT subject to the sales tax.

https://www.virginiadot.org/business/resources/LocDes/IIM/IIM8.pdf

Subject to the exceptions stated herein, it is VDOT policy that, for every request, a requester is to be charged for the total actual costs of responding to the request. VDOT does not authorize waivers of any of the total actual costs incurred for responding to a request. However, VDOT will not charge labor costs for a FOIA request unless it takes one hour or more to process the request. (Since VDOT charges an hourly rate, a request that requires less than one hour for a response will not be assessed labor costs). VDOT will charge a fee for production costs unless the costs for production are less than $4.00.

Commonly used exemptions

The Code of Virginia allows any public body to withhold certain records from public disclosure. VDOT 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)); and
• Certain proprietary, commercial or financial information, balance sheets, trade secrets, and revenue and cost projections provided by a private transportation business for the purpose of conducting transportation studies needed to obtain grants or other financial assistance under the Transportation Equity Act for the 21st Century (P.L. 105-178) for transportation projects (§ 2.2-3705.6 (9));
• Confidential proprietary records voluntarily provided by a private entity pursuant to a proposal filed with a public entity or an affected local jurisdiction under the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.), pursuant to a promise of confidentiality from the responsible public entity or affected local jurisdiction (§ 2.2-3705.6 (11)); and
• As it pertains to any person, records related to the operation of toll facilities that identify an individual, vehicle, or travel itinerary (§ 2.2-3705.7 (16)).
• Bridge Inspection Reports (§ 2.2-3705.2 (14))
• For a listing of additional exemptions of general applicability that may be used by VDOT, refer to the FOIA Council’s website.

Comment

To provide feedback to the Freedom of Information Advisory Council regarding the quality of assistance you received from a public body in regard to your request for public records, here are links to the FOIA Council website and their online public comment form.

• http://foiacouncil.dls.virginia.gov/
• http://foiacouncil.dls.virginia.gov/sample%20letters/welcome.htm