The Rights of Requesters and the Responsibilities of the Marine Resources Commission under the Virginia Freedom of Information Act 

Virginia Marine Resources Commission Freedom of Information Act Policy

Date Updated: January 1, 2023
Version #: 1

Summary: Virginia Code § 2.2-3700 through 2.2-3715 requires all state agencies to provide the public access to public records. The guidance describes the process and procedure for the agency to respond to public record requests pursuant to Va. Code § 2.2-3700 et. seq. This document summarizes the rights of FOIA requesters and the responsibilities of the Virginia Marine Resources Commission (VMRC) under the Virginia Freedom of Information Act.

Contact Information: Please contact Rachael Peabody at Rachael.peabody@mrc.virginia.gov with any questions related to this guidance.

Disclaimer: This document is provided as guidance and, as such, sets forth standard operating procedures for the agency. However, it does not mandate any particular method, nor does it prohibit any alternative method. If alternative proposals are made, such proposals should be reviewed and accepted or denied based on their technical adequacy and compliance with appropriate laws and regulations.

The Virginia Freedom of Information Act (FOIA), located § 2.2-3700 et. seq. of the Code of Virginia, guarantees citizens of the Commonwealth and representatives of the media access to public records held by public bodies, public officials, and public employees. A public record is any writing or recording -- regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format -- that is prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. All public records are presumed to be open, and may only be withheld if a specific, statutory exemption applies. The policy of FOIA states that the purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly.

FOIA Rights

• Any person has the right to request to inspect or receive copies of public records, or both.

• Any person has the right to request that any charges for the requested records be estimated in advance.

• If you believe that your FOIA rights have been violated, you may file a petition in district or circuit court to compel compliance with FOIA.

Making a Request for Marine Resources Commission (MRC) Records

• Records may be requested by U.S. Mail, fax, e-mail, in person, or over the phone. FOIA does not require that a request be in writing, nor does the request need to specifically state that it is a FOIA request and does not have to be requested through a FOIA officer.

o For transparency and practicality, the MRC recommends making requests by e-mail to the agency FOIA coordinator michele.guilford@mrc.virginia.gov. This allows the applicant to create a record of their request, provide a clear statement of the request, and determine the best mode of communication with the MRC. However, the MRC cannot refuse to respond to any FOIA request if the applicant chooses another form of requesting information.

• A request must identify the records being sought with "reasonable specificity." This is a common-sense standard. It does not refer to or limit the volume or number of records that are being requested; instead, it requires that a request be specific enough so that the agency can identify and locate the records being sought.

• A request must ask for records or documents. FOIA gives the right to inspect or copy records; it does not apply to a situation where the applicant inquires with general questions about the work of the MRC, nor does it require MRC to create a record that does not exist.

• The requester may choose to receive electronic records in any format used by the MRC in the regular course of business.

The Marine Resources Commission’s Responsibility in Responding to Requests

• The MRC must respond to a request within five working days of receiving it. "Day One" is considered the day after the request is received. The five-day period does not include weekends or holidays.

• The reason behind the request for public records from the MRC is irrelevant, and we cannot ask why records are being requested before we respond to a request. FOIA does, however, allow the MRC to ask to provide your name and legal address. The Virginia FOIA applies only to citizens of the Commonwealth of Virginia and representatives of media with a circulation in Virginia.

• FOIA requires that the MRC make one of the following responses to a request within the five-day time period:

o We provide the records requested in their entirety

o We withhold all the records requested, because all of the records are subject to a specific statutory exemption. If all the records are being withheld, we must send a response in writing. That writing must identify the volume and subject matter of the records being withheld and state the specific section of the Code of Virginia that allows us to withhold the records.

o We provide some of the records requested but withhold other records. We cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, we may redact the portion of the record that may be withheld and must provide the remainder of the record. We must provide a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.

o The requested records could not be found or do not exist.

o If it is practically impossible for the MRC to respond to a request within the five-day period, we must state this in writing, explaining the conditions that make the response impossible. This will allow us seven additional working days to respond to a request, giving us a total of 12 working days to respond to the request.

o If a request is for a very large number of records, and we feel that we cannot provide the records within 12 days without disrupting our other organizational responsibilities, we may petition the court for additional time to respond to the request. However, FOIA requires that we make a reasonable effort to reach an agreement with the requester concerning the production of the records before we go to court to ask for more time.

Costs

• The MRC will charge to process FOIA requests at a rate commensurate with the cost to process the request. FOIA allows us to charge for the actual costs of responding to FOIA requests. This would include items like staff time spent searching for the requested records, copying costs, or any other costs directly related to supplying the requested records. It cannot include general overhead costs.

• If the MRC estimates that it will cost more than $200 to respond to a request, we may require a deposit. The deposit may be up to the amount of the estimate. The five days we have to respond to your request does not include the time between when we ask for a deposit and when you respond.

• The requester may request that we estimate in advance the charges for supplying the records you have requested. This will allow the requester to know about any costs upfront or give them the opportunity to modify the request in an attempt to lower the estimated costs.

• The MRC may require payment of any unpaid invoice amounts before processing a new request.

Commonly Used Exemptions

The Code of Virginia allows any public body to withhold certain records from public disclosure. The MRC commonly withholds records subject to the following exemptions:

• Personnel records (§ 2.2-3705.1 (1) of the Code of Virginia)

• Records subject to attorney-client privilege (§ 2.2-3705.1 (2)) or attorney work product (§ 2.2-3705.1 (3))

• Vendor proprietary information (§ 2.2-3705.1 (6))

• Records relating to the negotiation and award of a contract, prior to a contract being awarded (§ 2.2-3705.1 (12))

• Confidential Fisheries Data (§ 28.2-204.6 (C)).

• Criminal incident information likely to jeopardize an ongoing investigation or prosecution or the safety of an individual, or cause a suspect to flee or evade detection, or result in the destruction of evidence (§ 2.2-3706 (B)). Pursuant to §2.2-3706 (B) records may be released at the discretion of the Custodian of Records.

• Complaints, memoranda, correspondence and evidence relating to a criminal investigation or prosecution, other than criminal incident information (§ 2.2-3706 (F) (1))

• Portions of noncriminal incident or other investigative reports containing identifying information of a personal, medical, or financial nature provided to a law-enforcement agency where the release of such information would jeopardize the safety or privacy of any person (§ 2.2-3706 (B))

• Investigative techniques or procedures, or identity of any undercover officer or individual providing information about a crime or criminal activity under a promise of anonymity (§ 2.2-3706 (D, E))

• Portions of any records containing information related to plans for or resources dedicated to undercover operations (§ 2.2-3706 (G) (2))

• Plans and information to prevent or respond to terrorist activity (§ 2.2-3705.2 (4))

• Records that would reveal surveillance techniques, personnel deployments, alarm or security systems or technologies, or plans or protocols, that would jeopardize the security of any government facility or the safety of persons using it (§ 2.2-3705.2 (6))

• Tests or examinations used, administered or prepared for purposes of evaluation of any employee or employment seeker’s qualifications or aptitude for employment, retention, or promotion, or qualifications for any license or certificate (§ 2.2-3705.1 (4))

• Records of background investigations of applicants for law-enforcement agency employment or other confidential administrative investigations conducted pursuant to law (§ 2.2-3706 (B)

FOIA Processing Internal Guidance

MRC Roles and Responsibilities

MRC Agency FOIA Coordinator: Receives online and email FOIA requests and forwards requests to the appropriate division. Coordinates multi-program FOIA responses to ensure timely submittals and proper documentation of responses. (Michele Guilford)

Division FOIA Coordinator: Coordinates FOIA responses on behalf of their MRC division, communicates with Agency FOIA Coordinator on responses. (Division Chiefs)

Division Alternate Coordinator: Back-up for Division Coordinator (Division Deputy Chiefs)

FOIA Officer: The agency FOIA Officer is designated by the Commissioner and performs the following:

• Update the FOIA policy as necessary in accordance with changes made by the Virginia General Assembly to FOIA or agency directive;

• Maintain a complete written record of MRC coordinators and alternate coordinators for FOIA purposes;

• Coordinates and drafts communication to requesters regarding exempt records.

• Consult with the Commissioner and, when necessary, the Department of Law Office of Attorney General ("OAG") OAG to ascertain the appropriate course of action when the custodian deems all or a part of a requested set of records to be subject to discretionary withholding;

• Consult with staff and/or conduct reviews of potentially exempt records before asserting an exemption for releasing a record.

FOIA Exclusions

Personnel Information: Personnel information concerns employment related information associated with identifiable individuals. Personnel information is excluded from mandatory disclosure. The agency has the discretion to release or exclude such information unless the disclosure is prohibited by law. The agency’s policy is to exclude the release of such information.

Attorney Client Privilege and Attorney Work Product: The agency withholds any advice of legal counsel that is protected under the attorney-client privilege. Va. Code § 2.2-3705.1 (2). Similarly, legal memoranda and other work products compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under Va. Code § 2.2-3711 will be withheld. Va. Code § 2.2-3705.1 (3)

Closed Meetings: The agency withholds records compiled exclusively for use in closed meetings lawfully held pursuant to Va Code § 2.2-3711. Va Code § 2.2-3705.1 (5).

Proprietary Information: The agency withholds vendor proprietary information software contained in MRC records. Vendor proprietary information software includes computer programs that are acquired from a vendor for purposes of processing data for MRC Va. Code § 2.2-3705.1 (6).

Software: The agency withholds computer software developed by or for a state agency. Va. Code § 2.2-3705.1 (7).

Real Property Transactions: The agency withholds appraisals and cost estimates of real property subject to a proposed purchase, sale, or lease, prior to the completion of such transaction. Va. Code § 2.2-3705.1 (8).

Financial Information: The agency withholds account numbers, routing numbers, credit card numbers, debit card numbers or other account information with a financial institution unless the individual requesting the information is also the subject of the information. Va. Code § 2.2-3705.1 (13).

Executive Privilege and Governors Working Papers: "Working papers" are defined as those records that are prepared by or for a public official for his or her personal or deliberative use. If a state employee has created records for or on behalf of the following entities listed below, please contact the FOIA Officer and the Director of Policy Va. Code § 2.2-3705.7 (2).

1. Office of the Governor

2. Lieutenant Governor

3. The Attorney General

4. The members of the General Assembly

5. The Division of Legislative Services

6. The mayor or other chief executive officer of any political subdivision of the Commonwealth

7. The president or other chief executive officer of any public institution of higher education in Virginia.

Fisheries Data Requests: Any request for data to the fisheries division shall be treated as a FOIA request and follow the usual timeframe. If the 12 working days are not enough, the next step would be to negotiate with the requester(s) to reach an agreement on the time to respond, and if no agreement can be reached, then the next step would be to file a petition in circuit court pursuant to subsection C of § 2.2-3704.

Fisheries Confidential Data: In accordance with (§ 28.2-204.6 (C)) Fisheries related data collected by our agency shall not be disclosed in any manner which would permit identification of any person, firm, corporation, or vessel, except when required by court order. As a policy for compliance with this standard the agency adheres to the ACCSP policy for confidentiality which requires that any data summary that is publicly disclosed must include landings from at least three contributors, such as, three dealers, three harvesters, and three vessels to be considered non-confidential.

Additional Governing Statutes

The following records are also governed by other statutes in addition to FOIA:

• Active criminal investigations are governed by the restrictions set forth under § 52-8.3 of the Code of Virginia.

• Criminal history records are governed by the restrictions set forth under § 19.2-389.

• Boating records and boating accident investigation reports are governed by § 29.1-700 et seq.

• Motor vehicle accident reports and information regarding accidents are governed by § 46.2-379 and § 46.2-380.

Counting the Cost of Processing Requests

MRC may make reasonable charges for its actual costs incurred in accessing, duplicating, supplying, or searching for the requested records. MRC will not impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with maintaining records or transacting the general business of the agency.

The agency assesses the cost of responding to a FOIA request in two ways:

1. Costs are assessed regarding the staff time MRC employees provide in order to gather and produce the records requested in 30-minute intervals based on the below table:

Cost Category Charge per hour
Staff Time: Non- Management $35.80
Staff Time: Management $52.01
Paper Copies $0.25

2. Costs for mailing, thumb drives etc.

Electronic records: Electronic records productions are the preferred method of the agency. The agency will transmit the information through an electronic file share, e-mail or mail. There is no associated cost with transmitting the records electronically outside of staff time outlined above. However, if the requester would prefer that the records to be placed on a thumb drive and sent via postal mail, then any cost associated with this type of production will be borne by the requester and MRC staff should include this cost. In the case of a Habitat Management FOIA response that only requires the point-person to direct the requestor to the public online permit database, a charge will not be issued.

Photocopied records: If the requester does not wish to inspect the original records but wishes to be provided with copies of the requested records in physical paper form, the requester may elect to have copies made and sent to the requester. MRC's basic charge for photocopying existing paper records is per 8 1/2” x 11" single-sided. When the request involves hundreds of pages, the staff may estimate the pages using the formula, 2 inches equals 500 pages (1 inch equals 250 pages, etc.), which is based on the standard size of a ream of paper. The cost associated with copying and mailing the records will be borne by the requester.

Agency inability to copy requested records: If the agency is unable to copy the records for requester, then the agency may fulfill its obligations by allowing the requester to contact a private copying service to produce the requested records. In such instances, steps must be taken to ensure that the integrity of the original records is retained. If a private copying service is used, direct payment to the company is the responsibility of the requester and the cost per page will not be assessed by MRC.

Requests that will not be charged: next of kin, government-to-government, fatality incidents.

MRC Invoicing

If the cost associated with a FOIA request is over $25.00, then a FOIA invoice will be sent with the requested data. The charges will show an itemization of the fees incurred for the production of the FOIA request. The agency may only pause the response time of a request while awaiting the payment of an estimate or If the requester has requested an estimate and we are awaiting a response.

• Less than $25.00: If the cost of providing the records, staff time and/or tangible records production, is less than $25.00, the coordinator shall release the requested records without any charges.

• More than $25.00: If the cost of providing the records, staff time and/or tangible records production, is more than $25.00, the coordinator will provide the requester with an invoice of the charges related to the cost of FOIA productions with the data. Data cannot be withheld for payment.

• $ 200.00 or more: If the cost of providing the records, staff time and/or tangible records production, is determined to likely exceed $200.00, before the agency begins to process and/or continues to process the request the FOIA coordinator will contact the requester to notify the requester that his or her FOIA request will be $200 or more and payment will need to be received before the agency proceeds. Once the requester has been notified that receipt of payment is necessary to continue the FOIA process, the statutory period will be paused until the agency receives the $200 minimum deposit. If the cost of the production is more than $200, the deposit will be used as a credit and the remaining balance will be billed to the requester. Va. Code § 2.2-3704 (H). Once the deposit has been received, the agency will resume processing the FOIA request within the remaining statutory period of time.

• Instances when the requester asks for estimation of charges: MRC will provide the requester a price estimate. The statutory time for providing the requested records will be paused until the requester notifies the agency that he or she would like to have the request processed. If the agency does not receive a response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn. Va. Code §2.2- 3704 (D).

Submission of Payment

Requesters are encouraged to reimburse MRC by check for FOIA expenses. Checks should be made payable to Treasurer of Virginia and mailed to:

Marine Resources Commission
Attn: Accounts Payable
380 Fenwick Road
Fort Monroe, VA 23651
757.247.2200

In instances where the estimated cost of providing records exceeds $200, Accounting will notify the FOIA officer when the entire estimated payment has been received. MRC may grant fee waivers to other Virginia agencies; each request submitted by a Virginia agency will be reviewed on a case-by-case basis. MRC will consider the nature of the request, as well as the time expended by operational staff to fulfill the request to determine if fees will be assessed.

Penalties for Violation:

Employees may be held personally liable for violations of FOIA. If a legal proceeding is commenced against any employee of MRC for a violation of FOIA, and the court finds that a violation was willfully and knowingly made, the court shall impose upon such officer or employee of MRC a civil penalty of not less than $500 nor more than $2,000, which amount shall be paid into the State Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $2,000 or more than $5,000. Va. Code § 2.2-3714. To ensure FOIA compliance, the agency will require employees to attend an annual training.

Sample FOIA Response Letter

Date

Requester’s Name, Title

Requester’s Address

Virginia Freedom of Information Act Response Letter

Dear _______________:

The Marine Resources Commission has received your Freedom of Information request on ___________. The box checked below corresponds to the results of the search for the records requested.

RECORDS:

• (Item A) Returned Request: In accordance with Va. Code § 2.2-3704 (B), The Commission has reviewed your request and determined the request lacks reasonable specificity. Please submit a new request, specifying the records you are requesting.

• (Item B) Release in Full: In accordance with Va. Code § 2.2-3704 Your payment has been received, and the records you requested are enclosed.

• (Item C) Records Entirely Withheld: In accordance with Va. Code § 2.2-3704 (B)(1), the Commission has elected to withhold records from your release. The following records are being withheld (See description, quantity, and statutory exemption of withheld records):

_______________________________________________________________________________________________________

_______________________________________________________________________________________________________

• (Item D) Records Withheld and Released in-part: In accordance with Va. Code § 2.2- 3704 (B)(2), the Commission is releasing a portion of the record. A portion of the record is being withheld. The following records are being withheld (See description, quantity, and statutory exemption of withheld records):

_______________________________________________________________________________________________________

_______________________________________________________________________________________________________

• (Item E) No Records: In accordance with Va. Code § Va. Code 2.2-3704 (B)(3), the Commission has conducted a review of our files and determined the records you requested cannot be found or do not exist in MRC files.

• (Item F) Additional Time Needed: We are currently working to process your request. However in accordance with Va. Code § 2.2-3704 (B)(4), it is not possible for MRC to provide the requested records within five (5) working days due to ______________________. We anticipate, however, that we will be able to do so by (Date not to exceed twelve (12) working days after perfection of the request.).

COST:

• (Item G) Request Denied Due to Outstanding Fees: It has been noted that you/your company has an unpaid balance of $______._____ owed to MRC for the fulfillment of previous FOIA request(s); therefore, we cannot proceed with this request until the balance has been paid in full.

• (Item H) No Fees Accessed: The agency’s policy is to recover the cost of providing records if the cost of when the cost is $25.00 or more. However, the production cost associated with your request is under $25.00; therefore, there is no cost associated with you request. Your records will be transmitted to you.

• (Item I) Fees Accessed: The agency’s policy is to recover the cost of providing records, when that cost is $25.00. The cost associated with the production of your records is $________. Please make payments to the Treasurer of Virginia. Mail payments to:

Marine Resources Commission
Attn: Accounting
380 Fenwick Road
Fort Monroe, VA 23651
757.247.2200

• (Item J) $200/ Deposit Required: It has been determined that the cost of fulfilling your request is likely to exceed $200.00. MRC requires a down payment of $200 before the agency continues to process your request. Please send a written statement to the FOIA coordinator that you will be remitting payment associated with the production of the information request. Please note that upon the completion of processing your request, any remaining balance will be billed to you and any overage paid will be refunded to you. Va. Code § 2.2-3704 (H). Please make payments to the Treasurer of Virginia. Mail payments to:

Marine Resources Commission
Attn: Accounting
380 Fenwick Road
Fort Monroe, VA 23651
757.247.2200

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