Virginia Freedom of Information Act (FOIA)

Rights & Responsibilities:

The Rights of Requesters and the Responsibilities of the
Virginia Criminal Sentencing Commission
under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (FOIA), located in § 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.

Your FOIA Rights

• You have the right to request to inspect or receive copies of public records, or both.
• You have 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.  Alternatively, you may contact the FOIA Council for a nonbinding advisory opinion.

Making a Request for Records from the Virginia Criminal Sentencing Commission

• You may request records by U.S. Mail, fax, e-mail, in person, or over the phone.  FOIA does not require that your request be in writing, nor do you need to specifically state that you are requesting records under FOIA.

• From a practical perspective, it may be helpful to both you and the person receiving your request to put your request in writing.  This allows you to create a record of your request.  It also gives us a clear statement of what records you are requesting, so that there is no misunderstanding over a verbal request.  However, we cannot refuse to respond to your FOIA request if you elect to not put it in writing.

 

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

• Your request must ask for existing records or documents.  FOIA gives you a right to inspect or copy records; it does not apply to a situation where you are asking general questions about the work of the Virginia Criminal Sentencing Commission, nor does it require the Commission to create a record that does not exist.

• You may choose to receive electronic records in any format used by the Virginia Criminal Sentencing Commission in the regular course of business.

• For example, if you are requesting records maintained in an Excel database, you may elect to receive those records electronically, via e-mail or on a computer disk, or to receive a printed copy of those records.

 

• If we have questions about your request, please cooperate with staff's efforts to clarify the type of records that you are seeking, or to attempt to reach a reasonable agreement about a response to a large request.  Making a FOIA request is not an adversarial process, but we may need to discuss your request with you to ensure that we understand what records you are seeking.

To request records from the Virginia Criminal Sentencing Commission, you may direct your request to:

Meredith Farrar-Owens, Director

Mailing address:
Virginia Criminal Sentencing Commission
100 North Ninth Street
Richmond, VA 23233

E-mail:  [email protected]
Telephone:  804.371.7626
Fax:  804.786.3934

You may also contact her with questions you have concerning requesting records from the Commission.  In addition, the Freedom of Information Advisory Council is available to answer any questions you may have about FOIA.  The Council may be contacted by e-mail at [email protected], or by phone at 804.225.3056 or [toll free] 1.866.448.4100.

The Virginia Criminal Sentencing Commission’s Responsibilities in Responding to Your Request

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

• The reason behind your request for public records from the Virginia Criminal Sentencing Commission is irrelevant, and you do not have to state why you want the records before we respond to your request.  FOIA does, however, allow the Commission to require you to provide your name and legal address.

• FOIA requires that the Virginia Criminal Sentencing Commission make one of the following responses to your request within the five-day time period:

• We provide you with the records that you have requested in their entirety.

 

• We withhold all of the records that you have requested because all of the records are subject to a specific statutory exemption.  If all records are being withheld, we must send you 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.

• We provide some of the records that you have 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 you with the remainder of the record.  We must provide you with a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.

 

• We inform you in writing that the requested records cannot be found or do not exist (we do not have the records you want).  However, if we know that another public body has the requested records, we must include contact information for the other public body in our response to you.

• If it is practically impossible for the Virginia Criminal Sentencing Commission to respond to your 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 your request, giving us a total of 12 working days to respond to your request.

 

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

Costs

• A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen as set forth in subsection F of § 2.2-3704 of the Code of Virginia.

• You may have to pay for the records that you request from the Virginia Criminal Sentencing Commission.  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.

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

• The Commission provides the requester with an estimate of the cost of compiling the requested records based on the estimated number of hours of staff time that will be needed to compile the records. We also provide the requester with a maximum cost that could be assessed.

• The Commission advises a requester that, once complete, the requester will receive an invoice for the cost based on the actual staff time required to compile the records and necessary documentation; however, such invoice will not exceed the maximum specified above.

• An hourly rate is calculated based on the average annual salary for the Commission staff members who typically perform the work to fulfill FOIA requests, divided by 2,080 (numbers of hours worked in a year for a person who works 40 hours a week for 52 weeks). As of July 10, 2023, the hourly rate for staff time is calculated to be $43.93.

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

• If you owe Virginia Criminal Sentencing Commission money from a previous FOIA request that has remained unpaid for more than 30 days, the Commission may require payment of the past-due bill before it will respond to your new FOIA request.

Types of Records

The following is a general description of the types of records held by the Virginia Criminal Sentencing Commission:

• Personnel records concerning employees and officials of the Commission;

• Records of contracts into which the Commission has entered;

• Financial and budget records;

• Procedural, instructional, and policy manuals developed by the Commission;

• Sentencing Guidelines (SG) training materials developed by the Commission and training attendance records;

• Automated records of Sentencing Guidelines (SG) forms completed for felony cases handled in Virginia’s circuit court and submitted to the Commission;

• Automated records of the Sentencing Revocation Report (SRR) for alleged violations of community supervision or suspended sentences handled in Virginia’s circuit court and submitted to the Commission;

• Automated records of the Probation Violation Guidelines (PVG) completed for revocation hearings handled in Virginia’s circuit court and submitted to the Commission;

• Annual Reports submitted to the Chief Justice, the Governor, and the General Assembly;

• Reports and other documents pertaining to studies and analyses completed by the Commission;

• Fiscal impact statements prepared by the Commission based on legislation introduced in the General Assembly;

• Databases compiled for studies or analyses completed by the Commission (certain information in these databases is exempt from FOIA or otherwise prohibited from release and is subject to redaction);

• Presentations given at meetings of the Virginia Criminal Sentencing Commission;

• Minutes of the meetings of the Virginia Criminal Sentencing Commission (other than minutes of closed meetings).

If you are unsure whether the Virginia Criminal Sentencing Commission has the record(s) you seek, please contact:

Meredith Farrar-Owens, Director

Mailing address:
Virginia Criminal Sentencing Commission
100 North Ninth Street
Richmond, VA 23233

E-mail:  [email protected]
Telephone:  804.371.7626
Fax:  804.786.3934

Commonly used exemptions

The Code of Virginia allows any public body to withhold certain records from public disclosure.  The Virginia Criminal Sentencing Commission 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)) or computer software or applications developed by or for the Commission (§ 2.2-3705.1 (7));

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

• Records requested from persons incarcerated in a state, local or federal correctional facility (§ 2.2-3703(C)) or civilly committed pursuant to the Sexually Violent Predators Act (§ 37.2-900 et seq.);

• However, this exemption shall not be construed to prevent such persons from exercising their constitutionally protected rights, including, but not limited to, their right to call for evidence in their favor in a criminal prosecution.
• Records exempt from release under FOIA pursuant to Item 50 of Chapter 780 of the 2016 Acts of Assembly;

• Records associated with bill drafting requests submitted to the Division of Legislative Services (§ 30-28.18);

• Records defined as “working papers” of the Office of the Governor, the Lieutenant Governor, the Attorney General, members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia, or the president or other chief executive officer of any public institution of higher education in Virginia (§ 2.2-3705.7);

• Criminal history records (§ 19.2-389) and investigations and reports by probation officers (§ 19.2-299);

• Records of offenders incarcerated in correctional facilities provided such records relate to the imprisonment (§ 2.2-3706 (A)(2)(d)).

Policy regarding the use of exemptions

• The general policy of the Virginia Criminal Sentencing Commission is to invoke the personnel records exemption in those instances where it applies in order to protect the privacy of employees and officials of the Virginia Criminal Sentencing Commission.
• The general policy of the Virginia Criminal Sentencing Commission is to invoke the exemptions concerning attorney-client communications and legal work product whenever they apply in order to protect the Department’s legal interests and strategy.
• The general policy of the Virginia Criminal Sentencing Commission is to invoke the contract negotiations exemption whenever it applies in order to protect the Commission’s bargaining position and negotiating strategy.

Download FOIA Rights and Responsibilities Statement