Virginia FOIA attorney briefs Lynchburg City Council on records, meeting and fee rules

Joseph Underwood, a senior attorney with the Virginia Freedom of Information Advisory Council, delivered the Lynchburg City Council's biennial FOIA training during the council's July 8 work session.

Underwood told the council that "the law presumes that the records would be open unless otherwise provided by law," and that Virginia's FOIA chapter in Title 2.2 is interpreted narrowly around specific exemptions. He described the council's responsibilities on public records and public meetings, explained common exemptions and timelines, and answered questions about fees, deposits and records held on personal devices.

Underwood walked the council through response timing and fees: public bodies must respond within five working days after receipt of a request, with limited tolling if the requester asks for an estimate or if the estimated cost is $200 or more and the requester is asked to make a deposit. He said fee estimates should be tied to "the actual cost incurred in accessing, duplicating, supplying, or searching" records and noted that courts decide whether a fee or a labor charge is reasonable. Underwood described the deposit rule repeatedly: "If it's $200 or more, they can require deposit," and he recommended providing an estimate promptly because the FOIA clock continues to run until an estimate is provided or payment is made.

On exemptions and redactions, Underwood said many FOIA exemptions are discretionary and custodians must narrowly apply them. He described the working‑papers or executive deliberation protection used by chief executives' offices and emphasized that disclosures can waive protections: "Once something gets disclosed, it's no longer working paper," he said. He cited examples including personnel matters, attorney‑client communications, and contract–procurement deliberations, and warned against releasing bank account numbers or other sensitive financial identifiers without redaction.

Underwood also reviewed open‑meetings rules, including what constitutes a "meeting" for FOIA purposes and the risk of gatherings of three or more members discussing public business outside notice. He summarized the three basic FOIA meeting requirements: public notice with date/time/location, openness to the public (including the public's right to record), and minutes that record attendance, subject matter and votes.

Council members asked detailed procedural and practical questions. Topics included: whether FOIA follows a device or the office (Underwood: FOIA follows the public record, not the device); how to treat out‑of‑state requesters; what constitutes a "reasonable specificity" in a request; and when electronic transmissions or group emails risk creating an improper meeting. He advised caution on group emails and chats and recommended using blind copies or other safeguards to avoid the appearance of a serial meeting.

At the conclusion of the training, a council member praised the session as valuable: "This is some of the best training I've seen received on FOIA," the member said. Underwood offered the council his office's written guidance and advisory opinions, noting there is a searchable repository of opinions and guides on the FOIA Advisory Council website.

The training emphasized procedural compliance — prompt written responses, narrow application of exemptions, careful fee estimates tied to documented labor, and clear closed‑meeting motions and certifications — and encouraged the council to consult the FOIA advisory office early when difficult requests arise.