AG Herring: Localities Must Comply with FOIA During Emergency

Attorney General Mark Herring has issued an advisory opinion warning local governments that the state’s open government laws remain in effect during the state of emergency declared in response to the COVID-19 pandemic—which could have a bearing on Loudoun County’s own emergency rules.

On April 15, Loudoun supervisors adopted an emergency ordinance to conduct meetings outside of normal open meetings law, as gathering in one place became unsafe during the pandemic. That emergency ordinance, which supervisors renewed in September, also holds that “notwithstanding any provision of law, regulation or policy to the contrary, any deadlines requiring action by the County, a Public Entity, or their respective officers (including Constitutional Officers) and employees shall be suspended during the COVID-19 pandemic,” and that “failure to meet any such deadlines shall not constitute a default, violation, approval, ratification or recommendation, or result in any other automatic action or consequence.”

Herring cautioned Monday, Oct. 5 such declarations cannot include exemptions to the deadline to respond to Virginia Freedom of Information Act requests.

Under state law, all public records are presumed to be public and available for inspection unless there is a specific exemption allowed—and almost all of those exemptions are voluntary, not required, meaning there are very few documents the local government are prohibited from giving the public upon request.

State law also puts deadlines on answering those requests. Governments have five business days to respond to a request; they may also grant themselves a seven-day extension, and may also charge the requester the cost of producing the records and withhold them until paid.

Local governments cannot relax those deadlines, Herring wrote, quoting state law: “…Because VFOIA specifically states that ‘[a]ny ordinance adopted by a local governing body that conflicts with the provisions [VFOIA] shall be void,’ any such ordinance would be without legal effect.”

Therefore, he wrote, “The time limits for responding to requests for records in VFOIA remain in place and must be complied with even during the current emergency.”

Despite the state of emergency, Loudoun Now has seen no slowing of responses to requests from the newspaper.

Charlottesville Del. Sally L. Hudson (D-57) had requested an opinion on FOIA deadlines from Herring.

It is not the first time the current Board of Supervisors’ rules have had an uncertain relationship to transparency law. In January, supervisors unanimously adopted new rules of order calling for members to be censured if they disclose what happens in closed session—although no such prohibition exists under state law. The county government is not required to keep any public records of what happens behind those closed doors.

The continuity of government ordinance allowing for electronic meetings also predated the state law specifically allowing such meetings, and electronic meetings during the state of emergency have been used to conduct normal business such as ceremonial resolutions that were unrelated to the pandemic response or government actions required to maintain operations.

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