Board attorney disputes Story’s column

Published 4:56 pm Tuesday, November 16, 2021

To the editor:

I am writing regarding a column written by Sherri Story that appeared in the Nov. 14, 2021, edition of the Suffolk News-Herald. I want to point out some inaccuracies in the column relative to the Virginia Freedom of Information Act. (VFOIA).

First, the column mentions that the VFOIA is “a law that especially aids minorities, outsiders, and citizens who are purposefully and intentionally sidelined.” [Italics and bold for emphasis]. The right to access public records under the VFOIA only applies to “citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth.” The VFOIA only applies to those referenced in Virginia Code Section 2.2-3704, subsection A.

Second, the column mentions that requests for records must be answered within five “business” days. A response to a public record request must be given to the requester within five “working” days as provided for under Virginia Code Section 2.2-3704, subsection B.

Third, the column states that “Simple FOIA requests are to be free to citizens.” The terminology a “Simple FOIA request” does not appear in the VFOIA nor is there any requirement that a response under the VFOIA be without charge. The VFOIA allows “public bodies to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for requested records” as provided for under Virginia Code Section 2.2-3704, subsection F.

Fourth, the column suggests that the VFOIA is for public access to “information.” The VFOIA does not guarantee public access to “information” but public access to “public records” prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.

Fifth, the column indicates that “there are few exceptions” to mandatory release of public records by a public body. This is not true. There are total of 135 exclusions to the mandatory release of public records. For example: Virginia Code Sections 2.2-3703 [Records of the Virginia Parole Board], 2.2-3705.1, [Personnel records, written legal advice, legal memoranda and other work product, etc.] 2.2-3705.2 [Records relating to public safety], 2.2-3705.3, 2.2-3705.4 [Educational records], 2.2-3705.5 [Social service records], 2.2-3705.6 [Proprietary and trade secrets], and 2.2-3705.7 [Records of specific public bodies].

I would certainly hope that the Suffolk News-Herald would be interested in correcting any misinformation provided to the public in this published column from Sherri Story. I ask that this letter be posted in the opinion section of the Suffolk News-Herald.

 

Wendell M. Waller, Esq.

Suffolk School Board attorney