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Discovering FOIA: Using the Freedom of Information Act in Discovery

By Benjamin Titter


“It’s called the Freedom of Information Act, Kate. The hippies finally got something right.”

White Goodman (Ben Stiller)
Dodgeball: A True Underdog Story



Although the above quote is meant to be funny, the Freedom of Information Act, more commonly known as FOIA, is a vital part of our democratic republic. The federal act is codified at 5 U.S.C. §552. Virginia has a version for state-level agencies, which can be found in Title 2.2, Chapter 37 (§§ 2.2-3700 through 2.2-3714) of the Code of Virginia, 1950, as amended.


These laws create a more open and transparent government by making records publically available. But what a lot of lawyers fail to realize is that it can also be an invaluable discovery tool.


At the federal level, FOIA requires that offices, departments, and agencies (1) release all information requested under the law, unless the information falls into an exemption category, and (2) post certain information online, even without a request. The Virginia law requires that, “Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records.” Va. Code Ann. § 2.2-3704(A).


Practically, this means that any time you are dealing with a federal or state agency you can request information that might prove useful for your client. The information could be minutes of meetings, internal policies and procedures, or guidance on the agency’s rulemaking. Criminal defense attorneys could request police-department policies and training manuals. Civil litigators may need to obtain city-council-meeting minutes or records from relevant boards and commissions.


Although discovery is, by its very nature, a laborious and time-consuming part of litigation, FOIA generally requires only a quick analysis and a simple written request and can potentially result in large amounts of information, which can save you time and the client some attorney’s fees.


The typical FOIA analysis is as follows:


1. Is the information in the custody of a government agency? This is the threshold question, as FOIA does not apply to any private businesses, entities, or individuals.


2. If yes, is the information already available? Federal agencies, as previously mentioned, are required by FOIA to proactively disclose certain types of information online, including information that is frequently requested under the Act. For state agencies and boards, although not required to by the law, many agencies, boards, and commissions provide information on their websites.


3.If not, is the information exempt from disclosure? The federal law currently contains nine categories of exemptions: (a) national-defense or foreign-policy matters; (b) internal rules or practices of agency as related to personnel matters; (c) specifically exempt under another statute; (d) trade secrets, commercial, and financial information obtained from a person (think IRS records); (e) inter- or intra-agency memoranda or letters, other than those which would be available in litigation with the agency; (f) personnel and medical files of government employees; (g) law-enforcement records that would affect ongoing investigations, hinder the fair and impartial trial of a matter, unnecessarily invade privacy, reveal the identity of a confidential informant, lead to a circumvention of the law, or would endanger an individual’s safety; (h) information related to the regulation of financial institutions; and (i) information and data concerning wells, including geological information and maps.


At the state level, Virginia exempts the following agencies and groups from FOIA disclosures: (a) the Virginia Parole Board, except for general information, (b) petit and grand juries, (c) family-assessment and planning teams, (d) the Virginia State Crime Commission, and (e) certain records of the circuit and general district courts.


4.If not, then go ahead and file a FOIA request. Most, if not all, federal and state agencies have an office or an individual who handles all FOIA requests. Some simple investigating online should provide guidance on where to direct the request. Both the federal and state laws require all such requests to be sufficiently specific and detailed to allow the agency to easily identify the requested information. Also, there are provisions that allow the agency to charge fees for any copies made or postage used to provide the information. A good way around those fees is to request the information be provided electronically.


Once the agency receives the request, agency personnel will review it and provide any requested information that is not within one of the exemptions listed above. If the request contains a mixture of exempt and non-exempt information, the agency will redact anything exempt and disclose the rest.


Both the federal and state FOIA laws contain an appeal procedure. If a request was improperly denied, or information was improperly redacted, the remedy is to file, in the local U.S. district court for federal matters or the Virginia circuit court for state agencies, an action to enjoin the agency from withholding disclosure.


The Freedom of Information Acts, at both the federal and Virginia levels, are vital to maintaining integrity in our governments. And if more lawyers consider the applications to their caseload, these statutes could also become vital to ensuring our clients are fully and professionally represented. Whoever is responsible for it, whether it was the hippies or not, FOIA definitely gets something right.


Benjamin Titter is an associate with the Dillon Law Group, PLC. He can be reached at