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Thread: Freedom of Information Requests in VA

  1. #1
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    This thread is intended solely for quick reference on requesting government records under VA's Freedom of Information Act (FOIA).

    This thread is angled towards requesting records that might exist in relation to a police encounter.

    I am not a lawyer. Information provided is not intended as legal advice. I strongly urge readers to look up the VA FOIA at the links below and read the statute for themselves. It is easy reading.

    A number of OCers have sent FOI requests successfully using a general format Mike Stollenwerk used for the Tony's Incident in Manassas in early 2007. The VA FOIA requires no special format. A letter format works. VA Code 2.2-3704(A) and (B) say nothing about having to use a special government form or a special format.



    SUGGESTED FORMAT

    (Your name and address) (phone #'s help them contact you if there is a question)

    (Government agent name and adress)

    Subject: FOI REQUEST

    Dear (Government Agent),

    This is a request pursuant to the First Amendment and the Virginia Freedom of Information Act (FOIA) at VA Code Section 2.2-3700 et seq. (et seq. is an abbreviation for et sequitur which means "and follows") seeking:

    1. (government record)

    2. (government record)

    3. (government record)

    (However many more government records you want)

    If for any reason you anticipate the reasonable searchand production costs of this FOI request, billable to me under the VA FOIA,will exceed $(insertthe max you are willing to pay here)please notify me of the estimated cost, with reasonable particularity, and await my response before commencing the search and production of the requested records.

    I thank you kindly in advance for responding within the statutorily required 5 days.

    Sincerely,

    (Your name)



    ADVICES

    1. You might have to make a phone call to figure out to whom you should send/address your FOI request. A small police department might have the Chief's secretary handle it. A larger department might have an officer in Internal Affairs regularly assigned to FOI requests.


    2. You will have to figure out how to format the text in regard to your requested records. Is it easier to say you are requesting records related to a certain police "call for service at such and such date and time", putting this text above the list? Or, in your particular case, is it easier to put it in the text of each list item? You will have to figure this out.



    3. Figuring out what records to request is a game of estimating what records exist. Here are some suggestions for a police encounter:

    • 911 call recording
    • Dash-cam video
    • Officer body microphone recordings
    • Radio traffic
    • Field contact card/report
    • Text messages between patrol car and dispatch
    • Text messages between patrol cars

    If you are not sure, you can always request "all records", but that can get kinda expensive.



    4. When writing your list of requested records, choose your words carefully. You want to look at it also from the viewpoint of the government agent reading your request. Word something the wrong way and you can end up with twenty pages of a police policy, only one page of which relates to what you are actually seeking.

    The VA FOIA requires you to describe with reasonable specificity the record(s) you are seeking. 2.2-3704 B. I recommend taking that to heart and going a few steps beyond. Don't ask me how I learned this.



    5.Do not send an adversarial FOI request! Do not include hints or allegations of police wrongdoing. Make your FOI request totally neutral. If you hint or allege wrongdoing, the police might start an internal affairs investigation, and then might claim that the requested records are related to a personnel investigation and thus exempt from release under the VA FOIA.

    So, you do not want to ask "The text message that reveals whether the officer had reasonable articulable suspicion." You would ask, "the text messages between police cars, if any." You will make your own determination on whether he had legitimate reasonable suspicion.



    6. When you receive your requested records (copies) it is very tempting to dig in and start reading, looking for juicy information. Don't do it. When you get that envelope in the mail is the time to be very methodical and use a little self-discipline.

    First, take out a sheet of paper and your copy of the FOI request that you sent. Open their envelope, and

    A. Check off each item sent against each item requested. Did they send everything you requested, exactly as requested?

    B. If they did not send everything requested exactly as requested, did they comply with 2.2-3704 B1 thruB4, which gives the only possible responses they can legally give you?

    For example, they can release all the records. Release some and withhold some. Withhold all the records. Or tell you its not practically possible to fill the request in the five-day period. There are specifics on these possible responses, so you will want to read up on 2.2-3704B1-B4 before you receive the response. For example, if they release some records and withhold some records, they must cite the exact law that authorizes them to withhold the records and tell you with reasonable accuracy the volume and subject matter of the withheld records. This is all covered in 2.2-3704 B1-B4.

    An example of non-compliance. I'vecome across a situation where the government employee who responded gave a written summary of the information contained in the non-exempt record. The problem with that is that was not the requested record. It was a summary of the record's contents.

    Another example. The government employee may send you other records to substitute for the requested record. The problem with that is there is no provision in the VA FOIA for sending some other records to substitute for the requested records. If they are doing it as a good faith effort to provide the information, and you get the info you want, fine. I do recommend you stand firm that they also comply with the law on why they can't or won't send you the requested record.



    C. When the government cites a law that allows them to withhold a record, lookup the law yourself on-line. Are they using the exemption properly? I've seen more than one where they were not.




    D. If they improperly withheld a record, you may want to follow up on it right away. Who knows. Maybe it is an honest mistake. Maybe the government agent is withholding it because it contains embarrassing information or proof of wrongdoing.

    The main thought here is to avoid accidentally overlooking that the government improperly withheld requested information.






    7. Always put a limiter on the cost. The VA FOIA permits the government to charge you for filling the request. Specifics are given at 2.2-3704F.

    You do not want to misjudge how much time and effort it might take the government to search and produce the requested records, and then get a bill for double what you were willing to pay.

    Also, the government can demand pre-payment if the bill is going to be $200 or more. 2.2-3704H. And, if you your last FOIA bill is more than 30 days unpaid, they can refuse to fill any later requests until you have paid the overdue bill. 2.2-3704I.



    RESOURCES

    There is a very helpful FOI group in VA. Its called the VA Coalition for Open Government. They have plenty of useful information at their website. See the link below.

    There is also a government agency set up by the VA General Assembly to work on FOIA matters. Its called the Virginia Freedom of Information Council. If you have a question about interpretation of the statute, they can help. They do more, but I don't have room to go into it here. You can find out more by visiting their website below.

    VA FOIA Main Page:

    http://leg1.state.va.us/cgi-bin/legp...37000000000000



    VA FOIA section 2.2-3704: http://leg1.state.va.us/cgi-bin/legp...0+cod+2.2-3704



    VA Coalition for Open Government: http://www.opengovva.org/



    VA Freedom of Information Council: http://foiacouncil.dls.virginia.gov/



    Custodian. (Keyword I am inserting to make it easy to find this post/thread via the forum search feature. The term "custodian of the records" occurs a number of times in the VA FOIA.)

    Last edited by Citizen; 07-02-2012 at 12:25 AM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  2. #2
    Regular Member MSC 45ACP's Avatar
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    Thank you once again for your assistance. I'll let you know what happens.

    Mike
    "If I know that I am headed for a fight, I want something larger with more power, preferably crew-served.
    However, like most of us, as I go through my daily life, I carry something a bit more compact, with a lot less power."
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    SERPA retention or concealed...

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  3. #3
    Regular Member IanB's Avatar
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    Hahaha Citizen...

    I'm gonna have to start paying you... NOT! You keep writing stuff on OCDO that I in turn place on my website. LOL.

  4. #4
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    This thread should be stickied to the top of the Va forum.

  5. #5
    Campaign Veteran skidmark's Avatar
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    Resurrecting the thread with a purpose.

    See here http://docs.google.com/Doc?docid=0Aa...cWd0&hl=enfor a FOIA request that has excellent definitions of terms, making it even more difficult for the record holder to weasel out of releasing something on the grounds "you did not ask for that".

    I know these terms & definitions are not required in a Virginia FOIA, but as mentioned above, it makes it harder for them to say you forgot to ask for something.

    stay safe.

    skidmark
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    Thanks for bringing this back up Skidmark, and thank you Citizen for the write up. I think this would be a good thread to sticky!

  7. #7
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    cbackous wrote:
    Thanks for bringing this back up Skidmark, and thank you Citizen for the write up. I think this would be a good thread to sticky!
    You're welcome.

    Just save it in your favorites folder. When FOIA comes up in a discussion, all you have to do is link back to this page for the inquirer.

    You have to link back to it from a "stickied" location anyway. Plus you have it for yourself, without having to hunt for it.

    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  8. #8
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    RedKnightt wrote:
    This thread should be stickied to the top of the Va forum.
    I was thinking the very same thing.

  9. #9
    Regular Member Repeater's Avatar
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    Now that it's sticky, this is a good time to remind folks of the 2009 FOIA Workshops, the last one is November 2, 2009, in Richmond.

    2009 FOIA Workshops

    Also, see here:
    http://opencarry.mywowbb.com/forum54/32008.html


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