Several requests have gone unfilled after Albemarle County waived state FOIA deadlines

Attorneys at the University of Virginia’s First Amendment Clinic will represent Charlottesville Tomorrow in an effort to obtain public records from Albemarle County Public Schools.

Charlottesville Tomorrow on July 15 requested public documents from the school division regarding its reopening plans. Those requests have yet to be filled, though state law requires public bodies to respond to such requests within five working days, which was July 22. 

The school division said in an email to Charlottesville Tomorrow that it would do its “very best to get this information to you as soon as possible,” but that it did not have to respond by the statutory deadline. The county passed an emergency ordinance in March declaring its offices are no longer obligated to respond to Freedom of Information Act requests within that state-mandated deadline.

Read more about the county’s ordinance here.

The First Amendment Clinic said that Albemarle’s “broad ordinance waiving FOIA deadlines” is not supported by the state law that they have said grants them authority.

“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 a letter to Albemarle County Public Schools. 

The clinic sent the letter Wednesday, asking the school division to “comply with [its] statutory obligations.” The school division acknowledged it received the letter.

See PDF of the letter at the bottom of this story.

“The First Amendment Clinic is proud to represent Charlottesville Tomorrow as it pushes for access to vital public records that help inform the public on government activity,” said Jennifer Nelson, the co-director of the First Amendment Clinic. “Transparency is often most necessary when it’s least convenient, and access to public records is absolutely essential during this ongoing time of crisis in our community.”

The Albemarle County Board of Supervisors waived FOIA deadlines as a part of a larger ordinance that gave them the authority to conduct public meetings electronically during the COVID-19 emergency. That ordinance also broadly exempts them from following “any deadline imposed by State law.”

Earlier this month, County Attorney Greg Kamptner sent Charlottesville Tomorrow a statement explaining the ordinance. It read:

The purpose for the provision regarding responding to requests under the Freedom of Information Act was to ensure that the County was not in violation of the Act, and the protections it affords for certain records, in circumstances when it may have been impossible, unsafe, or unlawful for County employees to come into the County’s buildings to search for paper records in response to a Freedom of Information Act request during the COVID-19 disaster. The introductory paragraph to the section of the Ordinance pertaining to deadlines includes the following: “[T]he Board of Supervisors and the County endeavor to the extent practicable to meet the deadlines established by State law and the County Code.” Accordingly, the County has strived to respond to requests within the timelines established by the Act. 

Kamptner said Virginia Code § 15.2-1413 gives the county the authority to set aside the FOIA deadline. That law reads: “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.”

An opinion of the state Attorney General’s Office cites § 15.2-1413 as giving localities authority to enact ordinances to preserve “continuity of government.” However, the opinion “emphasizes the ‘limits of authority’ conferred by Va. Code Ann. 15.2-1413, the ‘continuity of government’ provision, which requires that any ordinances enacted pursuant to its authority be ‘carefully limited in scope,’” the First Amendment Clinic’s letter read. 

“A blanket exemption from VFOIA’s deadlines is unlikely to qualify as ‘carefully limited’ particularly in light of the fact that the vast majority of public bodies in Virginia, including the Governor’s office and the Virginia Department of Health continue to process VFOIA requests in a timely fashion,” according to the letter.

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

The Freedom of Information Act’s purpose is to guarantee the public’s access to government records and meetings. Any citizen can use the act to request — and be granted — any record created by a public body, with some exceptions. 

This access ensures governments remain open to their citizens, and it gives those citizens a crucial tool to hold their government accountable. But, without deadlines, there is nothing to guarantee a records request will be filled.

“Virginia’s Freedom of Information Act is extremely important,” said Giles Morris, the executive director of Charlottesville Tomorrow. “It gives us all the right to see how our government is functioning, and, when necessary, hold it accountable. As a nonprofit media organization in this community, we believe it is our responsibility to protect that right for all Albemarle County residents, and we deeply appreciate UVA’s First Amendment Clinic for working with us on this issue.”