FOIA

FOIA

The Virginia Freedom of Information Act (FOIA), located at §§ 2.2-3700 et seq. of the Code of Virginia, ensures citizens of the Commonwealth and representatives of the media have access to nonexempt public records held by a public body or its officers and employees.  The public purpose of FOIA is to promote an increased awareness of governmental activities by those entitled to receive nonexempt public records (Requester).

‍Custodian of the Records
‍A public record is defined generally as any writing or recording -- regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format -- 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 and is properly invoked by the public body.  Records not prepared for or used in the transaction of public business are not public records.

FOIA provides that requests should be made to the custodian of the public records being sought.  Augusta Water is the custodian of the records related only to the operation of Augusta Water.  Augusta Water is not the custodian of records related to the transaction of business by the County of Augusta.  The Requester should contact the County of Augusta for those records.

‍A Requester’s rights under FOIA
A Requester’s rights under FOIAA Requester has the following rights:
• The right to request to inspect or receive copies, or both, of nonexempt public records;
• The right to request any charges for the public records responsive to a request be estimated in advance of responding to the request;
• If a Requester believes FOIA rights have been violated, the Requester may file a petition in district or circuit court to compel compliance with FOIA.  Alternatively, a Requester may contact the FOIA Council (http://foiacouncil.dls.virginia.gov/) for a nonbinding advisory opinion.

How to request public records from Augusta Water
Nonexempt public records from Augusta Water may be requested by mail, fax, e-mail, in person, or over the telephone.  FOIA does not require a request to be in writing nor does a request need to specifically state it is being made under FOIA.

The following requirements will better enable Augusta Water to respond to a request:
• The request must include the Requester’s name and legal address.
• The request must identify the requested records with reasonable specificity. Reasonable specificity does not refer to or limit the volume or number of records being requested; instead, it requires the request to be sufficiently specific so Augusta Water can identify and locate the records being requested.
• The request must ask for existing records or documents.  Augusta Water is not required to create a new record if the record does not already exist.  FOIA gives a Requester the right to inspect or copy records; it does not apply to any situation where a Requester is seeking information to be provided in any form not consisting of a writing or a recording.
• The Requester may choose to receive electronic records in any format used by Augusta Water in the regular course of its business.

All FOIA records requests should be directed to Augusta Water’s FOIA Officer who can be contacted in the following ways:
• In person at the Administration & Engineering Offices of Augusta Water, 18 Government Center Lane, Verona, VA 24482 (Lisa M. Morrell, FOIA Officer)
• By telephone: 540-245-5366 or fax 540-245-5684
• By e-mail: foia@augustawater.com
• By mail: P. O. Box 859, Verona, VA 24482

Additionally, the Freedom of Information Act Advisory Council is available to answer any questions about FOIA.  The Council may be contacted by e-mail at foiacouncil@dls.virginia.gov or by phone at 804-225-3056 or toll free at 1-866-448-4100.

Augusta Water’s responsibilities in responding to a request
Augusta Water shall respond to a request within five (5) regular business days of receipt.  The five-business-day-period begins the business day immediately following the business day the request is received excluding weekends or holidays.

If Augusta Water is unable to provide the requested records or to determine whether such records are available or nonexempt within five (5) business days, the Augusta Water FOIA Officer will send a response within the five-business-day-period to the Requester stating it is not practically possible to provide a substantive response within five (5) business days and specifying the conditions that make providing a substantive response impossible.  Augusta Water shall then have an additional seven (7) business days to provide a substantive response to the request.

If more than seven (7) business days are necessary to provide a substantive response to a request due to an extraordinary volume of records or which will require an extraordinarily lengthy search, Augusta Water shall make reasonable efforts to reach an agreement with the Requester for additional time.  If an agreement with the Requester cannot be reached, Augusta Water may petition the court for additional time to provide a substantive response.

Types of Records

The following is a general description of the types of records held by Augusta Water:
• Personnel records concerning employees and officials of Augusta Water.
• Records of contracts to which Augusta Water is a party.
• Records regarding water/wastewater facilities Augusta Water owns and/or operates.

Records exempt from FOIA
The Code of Virginia allows a public body to withhold certain records from public disclosure.  Augusta Water will withhold otherwise public records containing confidential information and subject to the exclusions provided in Virginia State Code §2.2-3705.1 and 2.2-3705.7.

Exclusions commonly invoked by Augusta Water
Augusta Water most commonly withholds records subject to the following general exclusions provided under the Code of Virginia:
• Personnel information identifying an individual (§ 2.2-3705.1(1))
• Records subject to the attorney-client privilege (§ 2.2-3705.1(2)) or the attorney work product doctrine (§ 2.2-3705.1(3))
• Correspondence and working papers of the Executive Director (§ 2.2-3705.7(2))
• Records relating to the negotiation and award of a contract, prior to a contract being awarded (§ 2.2-3705.1(12))
• Customer identifying account records for water/sewer services (§ 2.2-3705.7(7))
• Trade secrets or proprietary information submitted by a bidder, offeror, or contractor in connection with a procurement transaction subject to the Virginia Public Procurement Act, §§ 2.2-4300, et seq. (§2.2-4342(F))
• Other exclusions may apply and are determined on a case-by-case basis.

Policy regarding the use of exclusions
The general policy of Augusta Water is to invoke the exclusions listed above in order: to protect the safety and privacy of Augusta Water’s customers, employees and officials; to protect Augusta Water’s bargaining position and negotiating strategy in contractual and legal matters; and to protect the correspondence and working papers of the Executive Director.

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 will be estimated in advance at the request of the citizen as set forth in § 2.2-3704(F) of the Code of Virginia.

The actual costs which Augusta Water may charge 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.  Charges will not include general overhead costs.

Currently, the following rates apply to FOIA requests:
• $0.16 per 10 pages of hard copies (black & white); $0.73 per 10 pages of hard copies (color)
• $4.50 for records provided on a USB thumb drive
• $35.00 per hour for Augusta Water’s FOIA Officer to access, duplicate, supply, or search for the requested records
• $67.00 per hour for Augusta Water’s Director of IT to access, duplicate, supply, or search for the requested records

If another Augusta Water employee must access, duplicate, supply, or search for specific requested records, that particular employee’s hourly rate may be charged.  That rate can be provided once it is determined who will be responsible for searching for and providing those records.

If Augusta Water decides there are costs involved in responding to a request, the Requester will be provided with an estimate of the projected costs for approval before the request is processed.  Advance notification of charges informs the Requester of any anticipated costs and gives the Requester the opportunity to limit the scope of a request which may reduce costs.If Augusta Water estimates costs will be under $200, the Requester will be provided with an invoice for costs when the Requester is provided the requested records.  Invoices are required to be paid within 30 days of receipt or payment may be made at the time requested records are received.  If Augusta Water estimates the costs will likely exceed $200, the Requester will be required to submit a deposit prior to Augusta Water processing the request.  The deposit may not exceed the estimated charges and will be credited toward the final cost of supplying the requested records.  The period of time in which Augusta Water is required to respond to a request is placed on hold between the day Augusta Water sends an advance notice of the estimate exceeding $200 and the day Augusta Water receives the required deposit.  If the actual cost is less than the deposit, any balance remaining will be refunded.  If the actual cost is more than the deposit, an invoice will be issued and the balance must be paid within 30 days of receipt or payment of the balance may be made at the time requested records are received.

All payments must be made payable to Augusta Water.

If a Requester owes Augusta Water money from a previous public records request that has remained unpaid for more than 30 days, Augusta Water may require payment of the past-due bill before responding to any new public records request by that Requester..
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