Future of Albemarle’s FOIA deadline waiver unclear after attorney general declares it unlawful

written by Newspack Team | October 9, 2020

It’s unclear what Albemarle County intends to do with its ordinance waiving the state’s public records request deadlines after Attorney General Mark Herring on Monday said that such ordinances violate state law.

Albemarle County Attorney Greg Kampter said in a Thursday email that he was reviewing the attorney general’s opinion and intended to “bring a recommendation to the Board of Supervisors on November 4.”

The Board of Supervisors was “briefed by legal counsel” in a closed session meeting on Wednesday “regarding the Continuity of Government Ordinance” — which is the ordinance that contains the Virginia Freedom of Information Act deadline waiver.

The most recent version of that ordinance, which took effect Oct. 1, includes a provision that extends “to the earliest date thereafter practicable” the statutory five-day window to respond to FOIA requests. Earlier versions of that ordinance “extended indefinitely” the deadline.

According to Herring, state law does not give counties or other localities the power to modify those deadlines.

“The time limits for responding to requests for records in VFOIA remain in place and must be complied with even during the current emergency,” Herring wrote in his three-page advisory opinion.

Advocates for open and transparent government celebrated the opinion as a win for public access this week. Attorney general opinions are not legally binding, but the carry considerable weight, said Ashley Taylor Jr., a former deputy attorney general for Virginia.

Should a law be challenged in court, for example, a locality would face an uphill battle if its state’s attorney general had sided against them. 

Because of that, localities often follow their attorney general’s advice, Taylor said.

Related Articles:

  • Attorney general says Albemarle’s ordinance waiving state FOIA deadlines unlawful
  • Albemarle extends ordinance waiving deadlines to respond to public records request
  • Albemarle ‘extended indefinitely’ deadline to respond to public records requests

That doesn’t necessarily mean a local government has to remove an ordinance or law that their attorney general deems unlawful — Virginia does not require the repeal of unlawful acts. 

Such laws can only become a problem if the government tries to enforce them.

Albemarle could leave its FOIA ordinance unchanged and simply not use it.

If in the future a county agency uses the ordinance as a reason to not meet the state’s deadlines, the requester of public records in that case could challenge the county in court — and Monday’s opinion would be powerful evidence on their side.

“It’s an opinion with a lot of weight,” Taylor said. “But someone would still have to challenge the ordinance in court.”