imported post
southernk30 wrote:
can I legally request this tape and how do I go about it?
(cudos to citizen)...
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.
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 search and production costs of this FOI request, billable to me under the VA FOIA, will exceed $(insert the 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:
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 thru B4, 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've come 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, look up 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. 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/legp504.exe?000+cod+TOC02020000037000000000000
VA FOIA section 2.2-3704:
http://leg1.state.va.us/cgi-bin/legp504.exe?000+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.)
