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Thread: Help wording a FOIA request

  1. #1
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    [font=arial]

    To: Virginia State Police

    Dear Custodian of Records for Virginia State Police:

    I am making a request under the Virginia Freedom of Information Act (§2.2-3700, et seq.).

    I would like copies of the following records:
    Code:
    I am requsting all radio and text records and dash cam recordings
    Pursuant to the Act, I request that within five working days you (a) provide me with all the records I request; (b) if the records are exempt from disclosure, identify which records are going to be withheld pursuant to which specific Code provision; or (c) if the records will be provided in part, identify which records are being withheld pursuant to which specific Code provision, and release the remaining, nonexempt records to me.

    If it is not practically possible to provide the records within five working days, please notify me that you will need an additional seven working days, as provided in the Act.

    As provided by FOIA, please provide an estimate of the costs of meeting my request before undertaking the task. Also, an acknowledgement of receipt of this request would be appreciated.

    If you have questions concerning my request, please contact me at so that we can work something out.

    Please be advised that I am prepared to pursue whatever legal remedy necessary to obtain access to the requested records. I would note that willful violation of the open records law can result in a fine of up to $2,500, for which you can be held personally liable. Court costs and reasonable attorney fees may also be awarded.

    I look forward to your response.

    Sincerely,







    This is for information regarding a traffic stop. were somerights were possibly violated. Once I get the FOIA info back the story will follow along the FOIA info.Full details about what happend to me in Short Pump will be postedon that threadas well. I am open to any and all suggestions on wording and what should be modified in the request. Names and details were left blank for now.
    [font="comic sans ms"]

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    Accomplished Advocate peter nap's Avatar
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    There is a recommended form on the VFOIA site. I'll see if I can find it if no one else puts it up.

    Just a suggestion. Forget the pleasantries. Be specific about dates, time, people involved, just what you want. With the State Police specifics are very important. I've had difficulty getting dashcam copies. They have always claimed they were privileged and I have to file a complaint (Which is faster than court action).

    It helps to copy the head of the State Police because I've found some of the Division Commanders are true BS artists and figure you may go away.

    Also give them a preferred format you want it in. I got recordings from a SW Va. PD once that was in some alien encryption. It took half the night to find something to convert it to an AVI.

    Leave the legal threat out. They know the law and the difference between being tough and sounding tough, is you just hit the other fellow without talking about it.
    In other words, if you don't get it as prescribed by law, move to the remedy.

    You might want to start carrying a bag of doughnuts with you.

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    You might want to start carrying a bag of doughuts with you.


    To Funny:celebrate

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    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/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.)
    Carry On.

    Ed

    VirginiaOpenCarry.Org (Coins, Shirts and Patches)
    - - - -
    For VA Open Carry Cards send a S.A.2S.E. to: Ed's OC cards, Box 16143, Wash DC 20041-6143 (they are free but some folks enclose a couple bucks too)

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    There is also something that you might want to take in account is if the traffic stop is an ongoing criminal investigation. Virginia's discovery is very restricted and if there is a video I am sure they wouldn't release it if there is a criminal investigation that is on going. But, it doesn't hurt to try.

    Also note, if you don't receive a response back about the video in 2 weeks follow up on your request.



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    eddyys wrote:
    There is also something that you might want to take in account is if the traffic stop is an ongoing criminal investigation. Virginia's discovery is very restricted and if there is a video I am sure they wouldn't release it if there is a criminal investigation that is on going. But, it doesn't hurt to try.

    Also note, if you don't receive a response back about the video in 2 weeks follow up on your request.

    Just a traffic offense is not a criminal matter. It's a civil offense unless he was being really bad.
    I've gotten Dash Cam video from the State police on Traffic stops before.
    Had one last year where they gave a farmer a ticket for not having tags on his farm vehicle.
    I did have to file a complaint with the Council but had the records within 12 hours of that.

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    Yes, a criminal offense like reckless driving would have done it.

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    eddyys wrote:
    Yes, a criminal offense like reckless driving would have done it.
    If it was reckless driving and I doubt it is. Even then, I doubt it would hold it up.

    BTW, the time restraint is 5 days not 2 weeks. If he doesn't hear within 5 days, he should be on their butts on day 6.


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    I made a FOIA request for a reckless driving video and the responded say they would get on it. A month later I contact them again saying that they deleted my request and the video. Ok =/

  11. #11
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    eddyys wrote:
    I made a FOIA request for a reckless driving video and the responded say they would get on it. A month later I contact them again saying that they deleted my request and the video. Ok =/
    That's why you don't wait!

    They can have an extension for cause but it's restrictive and they still have to notify you of the need. They can't just let it drop.
    If it was your reckless driving ticket, you should have subpoenaed it, not FOIA. That gets you past the criminal investigation exemption.

    Read the statute:
    http://leg1.state.va.us/cgi-bin/legp...0+cod+2.2-3704

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    I learned the hard way now didn't I? Lesson learned.

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    info left blank on purpose

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

    (Government agent name and address)

    Subject: FOIA 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

    1.Radio traffic (mp3 mp4 wav files )
    2. Officer body microphone recordings (mp3 mp4 wav files )
    3. Dash-cam video 4. Field contact card/report
    5. Text messages between patrol car and dispatch
    6. Text messages between patrol cars


    If for any reason you anticipate the reasonable search and production costs of this FOIA 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.



    This is what I will be sending in I think. Thanks for info and the help.


  14. #14
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    I take it there's some reason you don't want to subpoena the records? Is it because you want to make sure you don't have what you need on the trial date and won't have any excuse for a continuance?
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    I would think a FOIA for records would be a good reason for a continuance. :?
    Why open carry? Because 1911 > 911.

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    AbNo wrote:
    I would think a FOIA for records would be a good reason for a continuance. :?
    Ok, well, let me know what the judge thinks of it.

    But I'd expect any judge I've known to say, "That's an entirely different case and is not subject to adjudication here. Motion for continuance denied." That's if they're not feeling sarcastic. The sarcastic judges will leaf through the file as if they really expected to find something and then look up and tell you that there's nothing in the file making an FOIA request a part of the case. They'll ask, "Where, exactly, is that issue raised in your pleadings?"

    On the other hand, an SDT is an order from the court to produce records. It is issued within the context of the case you're in, and a failure to produce the records will lead either to an order that nothing related to the evidence can be introduced by the prosecution (e.g., the traffic stop itself), and/or a rule to show cause why someone to whom the subpoena was directed should not be held in contempt, and/or a continuance pending resolution of the failure to produce the evidence requested.

    But go ahead and try it, I guess, stranger things have happened. I once had a case in Fairfax Circuit Court in which a woman argued that she should not be subject to the final order of a court in a case in which she had been the defendant because she had "changed her mind", and the judge agreed with her for that reason and no other reason.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    I take it there's some reason you don't want to subpoena the records? Is it because you want to make sure you don't have what you need on the trial date and won't have any excuse for a continuance?
    No reason and no need for that yet as long as they give up the recordings.

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    Request filed will post story and FOIA info as well.

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    Update

    The Department has received your request and has estimated that it will cost approximately $36.00 to produce the documents/items in existence as requested. Please note that once produced, if these items need redaction (other person’s personal identifying information and/or other statutory exemptions) it may be slightly more.



    In addition, not all of items exist in a format, which can be emailed. In accordance with Virginia Code Section 2.2-3704 (B) (4), and in order to completely and properly respond to your request without negatively impacting public safety and our intense operational responsibilities, the Department does need to utilize seven additional work days to respond to your request.



    Please let me know if you still wish for the Department to process your request and/or if you have any questions.



    Sincerely,


    To: Information Office
    Subject: FOIA Request


    Dear Custodian of Records for

    I am making a request under the Virginia Freedom of Information Act (§2.2-3700, et seq.).]


    I would like copies of the following records:]

    Code:
    Radio traffic (mp3 mp4 wav files
    Code:
    2. Officer body microphone recordings (mp3 mp4 wav files)
    Code:
    3. Dash-cam video (avi or any common video format )
    Code:
    4. Field contact card/report
    Code:
    5. Text messages between patrol car and dispatch
    Code:
    6. Text messages between patrol cars

  20. #20
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    xdm guy wrote:
    Update

    The Department has received your request and has estimated that it will cost approximately $36.00 to produce the documents/items in existence as requested. Please note that once produced, if these items need redaction (other person’s personal identifying information and/or other statutory exemptions) it may be slightly more.

    In addition, not all of items exist in a format, which can be emailed. In accordance with Virginia Code Section 2.2-3704 (B) (4), and in order to completely and properly respond to your request without negatively impacting public safety and our intense operational responsibilities, the Department does need to utilize seven additional work days to respond to your request.

    Please let me know if you still wish for the Department to process your request and/or if you have any questions.


    Sincerely,
    The department also needs to utilize a copy of 2.2-3704(F).

    They are allowed to charge you for search and production of the records. To my knowledge, there is nothing in the Code authorizing them to charge you for redactions or legal review by the City Attorney or approval by the Tooth Fairy.

    F. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.

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

    You could call Alan Gernhart at the VA Freedom of Info Adviosory Council to double-check: 1-866-448-4100

    http://foiacouncil.dls.virginia.gov/

    We don't tolerate out-dated ordinances on town books. We don't tolerate park signsbanning guns in violation ofstate pre-emption.We shouldn't toleratecreative interpretations of theVAFOIA statutes.


    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.

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    Which items can not be e-mailed ? Could not find anywere in2.2-3704 that gives the power to charge for redactions or legal review by the City Attorney or approval by the Tooth Fairy. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. Please send me a itemized cost list.

    Perhaps this is a better response

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    The suspense about what occurred is starting to build..... when can we know?

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    NovaCop10 wrote:
    The suspense about what occurred is starting to build..... when can we know?
    You would really love to hear what happend in short pump then !

  24. #24
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    I am making a request under the Virginia Freedom of Information Act] (§2.2-3700, et seq.).


    I would like copies of the following records:]

    Code:
    1. Radio traffic (mp3 mp4 wav files
    Code:
    2. Officer body microphone recordings (mp3 mp4 wav files)
    Code:
    3. Dash-cam video (avi or any common video format
    Code:
    4. Field contact card/report
    Code:
    5. Text messages between patrol car and dispatch
    Code:
    6. Text messages between patrol cars
    Pursuant to the Act, I request that within five working days you (a) provide me with all the records I request; (b) if the records are exempt from disclosure, identify which records are going to be withheld pursuant to which specific Code provision; or (c) if the records will be provided in part, identify which records are being withheld pursuant to which specific Code provision, and release the remaining, nonexempt records to me.]


    If it is not practically possible to provide the records within five working days, please notify me that you will need an additional seven working days, as provided in the Act.]


    As provided by FOIA, please provide an estimate of the costs of meeting my request before undertaking the task. Also, an acknowledgment of receipt of this request would be appreciated.]


    If you have questions concerning my request, please contact me at so that we can work something out.]


    I look forward to your response.

    The Department has received your request and has estimated that it will cost approximately $36.00 to produce the documents/items in existence as requested. Please note that once produced, if these items need redaction (other person’s personal identifying information and/or other statutory exemptions) it may be slightly more.

    In addition, not all of items exist in a format, which can be emailed. In accordance with Virginia Code Section 2.2-3704 (B) (4), and in order to completely and properly respond to your request without negatively impacting public safety and our intense operational responsibilities, the Department does need to utilize seven additional work days to respond to your request.

    Please let me know if you still wish for the Department to process your request and/or if you have any questions.

    Which items can not be e-mailed ? Could not find anywere in2.2-3704 that gives the power to charge for redactions or legal review by the City Attorney . Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. Please send me a itemized cost list.

    In accordance with your request, the approximate cost of searching and producing the requested records is as follows:

    CAD Technician ($27.54 x 15 minutes) $ 8.85

    Duty Sergeant ($26.80 x 25 minutes) $11.17

    Trooper ($19.47 x 60 minutes) $19.47

    6 Copies x .10/each $ .60

    2 CDs x .26/each .53

    Postage (approximate) $ 1.50

    Total (approximate) $42.12


    The FOIA Council has opined that the cost of redaction is a cost of production. The two CDs are not formatted to be emailed. Please let me know if you wish for the Department to proceed with processing your request. Please note that if you do wish to proceed, the Department will need an additional seven work days to produce in accordance with 2.2-3704 (B) (4) once you notify the agency as noted below.


    So I guess media files cant be emailed anymore ?

    What is a cad technician needed for ?

    Why am I paying for Leo's to do work that they should have already done ?

    Does this seem high to anyone ?



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    Citizen wrote:
    xdm guy wrote:
    Update

    The Department has received your request and has estimated that it will cost approximately $36.00 to produce the documents/items in existence as requested. Please note that once produced, if these items need redaction (other person’s personal identifying information and/or other statutory exemptions) it may be slightly more.

    In addition, not all of items exist in a format, which can be emailed. In accordance with Virginia Code Section 2.2-3704 (B) (4), and in order to completely and properly respond to your request without negatively impacting public safety and our intense operational responsibilities, the Department does need to utilize seven additional work days to respond to your request.

    Please let me know if you still wish for the Department to process your request and/or if you have any questions.


    Sincerely,
    The department also needs to utilize a copy of 2.2-3704(F).

    They are allowed to charge you for search and production of the records. To my knowledge, there is nothing in the Code authorizing them to charge you for redactions or legal review by the City Attorney or approval by the Tooth Fairy.

    F. A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.

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

    You could call Alan Gernhart at the VA Freedom of Info Adviosory Council to double-check: 1-866-448-4100

    http://foiacouncil.dls.virginia.gov/

    We don't tolerate out-dated ordinances on town books. We don't tolerate park signsbanning guns in violation ofstate pre-emption.We shouldn't toleratecreative interpretations of theVAFOIA statutes.

    FOI Advisory Council Opinion AO-02-07 (3/14/2007): A public body may charge for the actual cost of staff time spent redacting records in response to a request. It may not charge any additional fee for a separate legal review of the same records.Rivera v. Long (Norfolk Circuit Court) (on costs and attorneys' fees)

    Found this on FOIA page



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