The Rights of Requesters and the Responsibilities of the Waynesboro Police Department under the Virginia Freedom of Information Act

Virginia Freedom of Information Act

The Virginia Freedom of Information Act (FOIA), located at § 2.2-3700 et seq. of the Code of Virginia, guarantees citizens of the Commonwealth of Virginia and representatives of the media that broadcast or have circulation in the Commonwealth 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.

Virginia Code § 2.2-3700 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

• Citizens have the right to request to inspect or receive copies of public records, or both.
• Citizens have the right to request that any charges for the requested records be estimated in advance. 
• If a citizen believes that his or her FOIA rights have been violated, he or she may file a petition in district or circuit court to compel compliance with FOIA.  Alternatively, he or she may contact the FOIA Advisory Council for a nonbinding advisory opinion.

Making a Request for Records from the Waynesboro Police Department

• A citizen may request records by U.S. Mail, fax, e-mail, in person, or over the phone.  FOIA does not require that the requester state why he or she wants the records, or that the request be in writing, nor does the requester need to specifically state that he or she is requesting records under FOIA.
• From a practical perspective, it may be helpful to both the requester and the person receiving the request for the requester to put the request in writing.  This allows a record of the request to be created.  It also gives the Department a clear statement of what records are being requested, so that there is no misunderstanding over a verbal request.  However, the Department cannot refuse to respond to a FOIA request if the requester elects not to put it in writing.
• The 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 being requested; instead, it requires that the requester be specific enough so that the Department can identify and locate the records being sought.
• The request must be for existing records or documents.  FOIA gives citizens a right to inspect or copy records; it does not apply to a situation where the requester is asking general questions about the work of the Department, nor does it require the department to create a record that does not exist.
• The requester may choose to receive electronic records in any format used by the department in the regular course of business.
• If the department has questions about the request, the requester should cooperate with staff's efforts to clarify the type of records being sought, 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 the department may need to discuss the request with the requester to ensure that it is understood what records are being sought.
• For the convenience of our citizens the department offers, and encourages, those requesting records to use this form (Request for Records Form). The form may also be accessed from the services page of this website or in person at the Police Department.  

The Waynesboro Police Department’s Responsibilities in Responding to a Request

• The Department must respond to requests within five working days of receiving a request.  "Day One" is considered the day after the request is received.  The five-day period does not include weekends or holidays.
• FOIA allows the Department to require requesters to provide their name and legal address.
• FOIA requires that the Department make one of the following responses to a request within the five-day time period:

1. The Department provides the requester with the records that they have requested in their entirety.
2. The Department withholds all of the records that have been requested, because all of the records are subject to a specific statutory exemption.  If all of the records are being withheld, the department must send the requester 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 the Department to withhold the records.
3. The Department provides some of the records that have been requested, but withholds other records.  The Department cannot withhold an entire record if only a portion of it is subject to an exemption.  In that instance, the Department may redact the portion of the record that may be withheld, and must provide the requester with the remainder of the record.  The Department must provide the requester with a written response stating the specific section of the Code of Virginia that allows portions of the requested records to be withheld.
4. The Department informs the requester in writing that the requested records cannot be found or do not exist (the Department does not have the records the requester wants).  However, if the department knows that another public body has the requested records, they must include contact information for the other public body in its response to the requester.
5. If it is practically impossible for the Department to respond to the request within the five-day period, the Department must state this in writing, explaining the conditions that make the response impossible.  This will allow the City seven additional working days to respond to the request, giving them a total of 12 working days to respond to the request.

• If a citizen makes a request for a very large number of records, and the Department cannot provide the records to the requester within 12 working days without disrupting its other organizational responsibilities, the Department will make a reasonable effort to reach an agreement with the requester regarding an extension of time in which to produce the records.  If the Department and the requester are unable to reach an agreement, the Department may petition the court for additional time to respond to the request.

Costs

• The Department may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. The City shall not 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 Department. Any duplicating fee charged by the City shall not exceed the actual cost of duplication.
• The requester may have to pay for the records that are requested from the Department.  FOIA allows the Department to charge for the actual costs of responding to FOIA requests.  This would include items such as 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 Department estimates that it will cost more than $200 to respond to a request, they may require the requester to pay a deposit, not to exceed the amount of the estimate, before proceeding with the request.  The five day response time for a request does not include the time between when the Department asks for a deposit and when the requestor responds to the City.
• The requester may request that the City estimate in advance the charges for supplying the records that have been requested.  This will allow the requester to know about any costs upfront, or give the requester an opportunity to modify the request in an attempt to lower the estimated costs.
• If the requester owes the Department money from a previous FOIA request that has remained unpaid for more than 30 days, the Department may require payment of the past-due bill before it will respond to the new FOIA request.
• The Department charges a standard fee of five dollars ($5.00) per record. This is generally assessed for copies of dispatch events, logs, local arrest records, police reports and crash reports, but could include other types of records as well. From time to time requests for large amounts of data or requests requiring extensive copying or research and compiling will incur additional charges. If this is the case the requester will be notified of any additional charges prior to the request being filled.

Types of Records

The Department is generally required to release the following information relating to criminal records.

A. Criminal incident information relating to felony offenses, which shall include:

(1) A general description of the criminal activity reported;

(2) The date the alleged crime was committed;

(3) The general location where the alleged crime was committed;

(4) The identity of the investigating officer or other point of contact; and

(5) A general description of any injuries suffered or property damaged or stolen.

 * This information may only be withheld when the release of the information in the judgement of the department is likely jeopardize an ongoing investigation or prosecution or the safety of an individual, cause a suspect to flee or evade detection, or result in the destruction of evidence, such information may be withheld until the above-referenced damage is no longer likely to occur from release of the information.

B. Adult arrestee photographs(Mugshots) taken during the initial intake following the arrest and as part of the routine booking procedure, except when necessary to avoid jeopardizing an investigation in felony cases until such time as the release of the photograph will no longer jeopardize the investigation.

C.  Information relative to the identity of any individual, other than a juvenile, who is arrested and charged, and the status of the charge or arrest;

The following is a general description of common records held by Waynesboro Police Department:

• 911 Police Dispatch Events – These records document police response to calls for service, including officer initiated activity and may be withheld or released in part (redacted) at the department’s discretion in accordance with Virginia Code § 2.2- 3706.
• Crime Incident Reports – These are reports prepared by law enforcement personnel to document crimes or incidents that have occurred and the investigation’s progress or disposition. Crime Incident Reports may be withheld or released in part (redacted) at the department’s discretion in accordance with Virginia Code § 2.2-3706 and other applicable statutes.
• Police Crash Reports – These reports are released in accordance with Virginia Code § 2.2-3706 and 46.2-379 – 46.2-380.
• Local Arrest Record – This is the official record of an individual’s Waynesboro (only) arrests or charges. This record   can only be requested and received by the individual that is the subject of the record or by a second party with a notarized release signed by the subject of the record, or by the parents or legal guardian of a minor, who is the subject of the record. This is only a local arrest record and does not include charges in any other jurisdiction or final disposition in any court.

If citizens are unsure whether the Department has the record(s) they want they may contact Captain Zullig at police@ci.waynesboro.va.us or call 540-942-6675.  

Commonly Used Exclusions

The Code of Virginia allows the department to withhold certain records from public disclosure. The following are common exemptions cited by the Waynesboro Police Department when it withholds records from public disclosure:

• Personnel records (Virginia Code § 2.2-3705.1(1))
• Records relating to Public Safety (Virginia Code § 2.2-3705.2)
• Records relating to criminal investigative files including those contained in Background or Internal Administrative Investigations. (Virginia Code § 2.2-3706)