County changes wording to the deadline "may be extended to the earliest date thereafter practicable"

Albemarle County says it still is not legally obligated to respond to all public records requests within Virginia’s statutory deadline.

An updated version of the county’s ordinance that defines how it will function during the COVID-19 pandemic extends a waiver of the Virginia Freedom of Information Act’s response deadlines another six months.

The new “continuity of government during the COVID-19 disaster” ordinance, which includes the FOIA deadline waiver, will take effect Oct. 1.

The rule remains troubling to advocates for open government.

I continue to disagree with the codification of a right to delay responding to FOIA requests,” said Megan Rhyne, executive director of the Virginia Coalition for Open Government, a nonprofit that advocates for expanded access to government records, meetings and other proceedings. 

“Just about every other local government in Virginia, as well as state agencies, have made conscientious efforts to meet their statutory duties under FOIA.”

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Albemarle’s ordinance states that “any deadline by which a response to a request for records under the Virginia Freedom of Information Act is due, and the time for which the records sought may be inspected or produced, may be extended to the earliest date thereafter practicable in order to respond to the request or allow any records to be inspected or produced.”

It added several “factors to be considered in determining whether the COVID-19 disaster prevents a deadline from being met.” They include illness preventing business, COVID-19 contamination closing public buildings and employees who are members of a “vulnerable population group” being unable to retrieve physical records.

The original ordinance, which passed in March, “extended indefinitely” the statutory deadline.

Read more about the Albemarle County’s original ordinance.

“At the time that the original ordinance was drafted, we didn’t know what we were walking into,” Albemarle County Attorney Greg Kamptner told the county’s Board of Supervisors at its Wednesday meeting, in which they passed the new ordinance.

“We do know now,” he said. “We know that we can function. We know that while there may be some circumstances that can come up with meeting certain deadlines, we also know what we can do.”

Kamptner later added that: “There were some media reports [that] would lead someone to think, if they focused on the headlines in some of these media reports, that the county was not complying with FOIA, or that we were using the continuity of government ordinance as a way to not respond to FOIA requests. As it turns out, we’ve been able to meet the FOIA deadlines quite well.”

Albemarle has exceeded the state’s response deadlines on at least six FOIA requests, including four from Charlottesville Tomorrow.

On July 15, Charlottesville Tomorrow requested several planning documents and emails regarding reopening plans from Albemarle County Public Schools. The division responded that it was not obligated to return the request within any given timeframe. The state’s FOIA law requires a response within five business days.

Charlottesville Tomorrow then partnered with the University of Virginia’s First Amendment Clinic to fight for the records to be handed over in a reasonable timeframe. 

A week after the state deadline passed, the Clinic sent Albemarle County Public Schools a letter asking that the request be filled, explaining that the county’s ordinance was unlawful. The school division filled the requests the following week.

“There are no emergency exceptions in [the Virginia Freedom of Information Act] that permit a public body to modify the time by which it must reply to VFOIA requests,” the clinic said in its letter.

VFOIA says: “Any ordinance adopted by a local governing body that conflicts with the provisions of this chapter shall be void.”

Kamptner told Charlottesville Tomorrow in July that the county enacted the ordinance using a different state law, which allows for governing bodies to “provide for continuity of government in case of enemy attack, etc. That law states:

Notwithstanding any contrary provision of law, general or special, any locality may, by ordinance, provide a method to assure continuity in its government, in the event of an enemy attack or other disaster.

After reading the county’s updated FOIA ordinance, Gabe Rottman, the co-director of the First Amendment Clinic, said he continues to disagree with the county’s position.

 “VFOIA does not provide any authority to unilaterally waive deadlines, and while requesters are surely willing to negotiate when a request would present challenges because of COVID-19, government transparency is just as important, if not more so, during public health emergencies,” he said.

The Freedom of Information Act provides municipalities an avenue to extend deadlines that they cannot reasonably meet. The act instructs such bodies to first “attempt to negotiate” with the requestors for more time.

If the requesters refuse to budge, the agency may “petition the appropriate court for additional time.”

In March, the state’s Freedom of Information Advisory Council sent out a statement to all local and state agencies advising them that a state of emergency did not change Virginia’s public records laws.

“There is no specific tolling provision for states of emergency,” the statement read. The council added that agencies should negotiate for more time or petition a court if needed.

“I would hope that under these circumstances requesters will be understanding in reaching such agreements,” the statement concludes.

The Coalition of Open Government’s Rhyne said that agencies across the state have used this approach successfully.

“I would encourage Albemarle County to take the same approach,” she said. “I think they’d find that requesters would be more than sympathetic and willing to work with them to make sure government employees stay safe while also fulfilling FOIA’s statutory requirements.”