Rights and Responsibilities of the Commission on Virginia Alcohol Safety Action Program (VASAP) under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (FOIA), located in Section 2.2-3700 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. The policy of FOIA states that FOIA’s purpose 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.

What are your FOIA rights? You have the right to request to inspect or receive copies of public records, or both, the right to request that any charges for the requested records be estimated in advance, and if you feel 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 non binding advisory opinion.

In regards to making a request for records from the Commission on VASAP:

• • You may request records by US 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 and gives us a clear statement of what records you are requesting, so that there is no misunderstanding of your 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 Commission on VASAP, nor does it require the Commission on VASAP to create a record that does not exist.

• • You may choose to receive electronic records in any format used by the Commission on VASAP 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.

In order to request records from the Commission on VASAP, please direct your request to the following via mail:

Attention: FOIA Officer EdQuina Bradley
The Commission on VASAP
1111 E. Main Street   Suite 801
Richmond, VA 23219

or via phone at (804) 786-5895

or via e-mail at info@vasap.virginia.gov

Additional information regarding FOIA may be directed to the Freedom of Information Advisory Council by e-mail at foiacouncil@dls.virginia.gov, or phone at (804) 698-1810, or toll free at 1-(866) 448-4100, or via fax at (804) 698-1899.

The Commission on VASAP’s responsibilities in responding to your request include:

• • The Commission on VASAP must respond to your request within five working days of receipt. “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 Commission on VASAP 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 Commission on VASAP to require you to provide your name and legal address.

• • FOIA requires that the Commission on VASAP make one of the following responses to your request within the five-day time period.

• • We provide you with the requested records in their entirety.

• • 1. We withhold all of the records requested due to a statutory exemption. If all of the records are being withheld, we must send you a response in writing which must identify the volume and subject matter of the records being withheld, and state the specific section of the Virginia Code that allows us to withhold the records.
    2. We provide some, but not all, of the records requested. 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 Virginia Code that allows portions of the requested records to be withheld.
    3. 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.
    4. If it is practically impossible for the Commission on VASAP 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.
    5. If you make a request for a particularly large volume of records, and meeting the time limit will keep the public body from fulfilling its operating 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.
    6. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. 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. 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 Virginia Code Section 2.2-3704.
    7. You may have to pay for the records that you request from the Commission on VASAP. 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.

• • The requestor (you) may always ask for an advance estimate of the charges for complying with his or her request. If the charges are expected to exceed $200, the public body (The Commission on VASAP) may require the requester to pay the estimated charges in advance, before it processes the request. If the public body does this, the time for its response does not run until the requester pays the estimated charges. The public body may not insist on advance payment if the amount of the charges is less than $200.

• • • If you owe us money from a previous FOIA request that has remained unpaid for more than 30 days, the Commission on VASAP may require payment of the past-due bill before it will respond to your new FOIA request.
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    • An administrative hourly rate is used in most cases.  However, if the request can only be completed by a specific employee, that individual employee’s hourly rate is used to access the fee.  The Commission on VASAP current administrative rate is $23.38.

The Virginia Code allows any public body the right to withhold certain records from public disclosure. The Commission on VASAP commonly withholds records subject to the following exemptions:

• • Personnel records – Virginia Code Section 2.2-3705.1

• • Records subject to attorney-client privilege or attorney work product – Virginia Code Sections 2.2-3705.1 (2) and 2.2-3705.1 (3) respectively.

• • Vendor Proprietary Information – Virginia Code Section 2.2-3705.1 (6)

• • Records relating to the negotiation and award of a contract, prior to the contract being awarded – Virginia Code Section 2.2-3705.1 (12)

The general policy of the Commission on VASAP 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 Commission on VASAP. In addition, the general policy of the Commission on VASAP is to invoke the contract negotiations exemption whenever it applies in order to protect the Commission on VASAP’s bargaining position and negotiating strategy.