Can a Virginia city extend or pause the 5-day Virginia FOIA records deadline during the COVID-19 emergency?

Plain-English summary

Delegate Sally Hudson asked the AG whether a Virginia locality could use § 15.2-1413, the continuity-of-government statute, to extend the deadlines for responding to Virginia FOIA records requests during the COVID-19 emergency. The answer: no. The continuity-of-government authority is narrow and was never intended to let a locality decide which state-law procedural requirements are "essential" and which can be paused.

Section 2.2-3704(B) sets the schedule: a public body must respond within five working days, with one of five specified responses. If the body needs more time, it can use the within-five-day "not practically possible" response, which extends the deadline by seven additional working days. For exceptional volumes or lengthy searches, § 2.2-3704(C) lets the public body petition a court for more time, after reasonable efforts to reach agreement with the requester.

Section 15.2-1413 allows a locality, by ordinance, to "provide a method to assure continuity in its government" during an enemy attack or other disaster, for up to six months. A March 2020 AG opinion (20-011) read that statute broadly enough to allow electronic public meetings during COVID-19, but specifically emphasized that ordinances under § 15.2-1413 "must be carefully limited in scope" to assuring continuity of essential government functions.

Extending FOIA deadlines is not "ensuring continuity." Section 2.2-3700 itself says VFOIA must be liberally construed to promote transparency. The General Assembly has not given localities a Dillon Rule-grant of power to suspend FOIA deadlines, and Virginia's Dillon Rule, Marble Techs, Inc. v. City of Hampton, 279 Va. 409 (2010), requires that any doubt about local legislative power be resolved against the locality. Plus, § 2.2-3700 expressly invalidates any ordinance adopted by a local governing body that conflicts with VFOIA.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

VFOIA's deadline regime is built around the five-working-day rule in § 2.2-3704(B). Within five working days, the public body must do one of:

1. Provide the records in full.
2. Provide some records but withhold portions as authorized by statute.
3. Advise that records are being withheld entirely as authorized.
4. Advise that the records cannot be found or do not exist.
5. Advise that it is not practically possible to provide records or determine their availability within the five-day window, with an explanation.

If the body picks option 5 within the five-day window, it has seven additional working days to make a substantive response.

A separate safety valve in § 2.2-3704(C) lets the public body petition a court for more time when the request is for an extraordinary volume of records or requires an extraordinarily lengthy search. The petition requires reasonable efforts to reach an agreement with the requester first.

Section 15.2-1413 reads: "Notwithstanding any contrary provision of law, general or special, any locality may, by ordinance, provide a method to assure continuity in its government, in the event of an enemy attack or other disaster." It is capped at six months and must include a path back to normal authority. The March 2020 AG opinion (20-011, on electronic meetings) read that statute broadly enough to override VFOIA's general meeting requirements when the locality enacted a continuity-of-government ordinance.

This opinion (20-043) draws the line. The earlier opinion permitted ordinances "carefully limited in scope to allowing the locality to assure continuity in its government." Extending FOIA deadlines is not continuity-of-government; it is a substantive rollback of transparency. The AG declines to read § 15.2-1413 as a power to declare statutory directives essential or non-essential at the locality's discretion.

Two doctrinal anchors: (1) § 2.2-3700(B) directs that VFOIA be liberally construed to promote transparency. (2) The Dillon Rule, as restated in Marble Techs, holds that "if there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body." Both push the same way: localities lack the implied authority to modify VFOIA timelines through emergency ordinance.

Section 2.2-3700 also includes a direct preemption clause: "[a]ny ordinance adopted by a local governing body that conflicts with the provisions [VFOIA] shall be void." Even if a locality enacted such an ordinance, it would have no legal effect.

Common questions

Q: I filed a Virginia FOIA request and the city said it would be delayed due to COVID. Is that allowed?
A: Within VFOIA's own deadlines, yes. The body has five working days to respond and can use the "not practically possible" response to take an additional seven working days. For unusually large or complex requests, the body can petition a court under § 2.2-3704(C) for more time. What the city cannot do is ignore the deadlines or unilaterally extend them by local ordinance.

Q: Can the city negotiate a longer deadline with me?
A: Yes. VFOIA expressly allows agreements between the public body and the requester for a different schedule. If the city asks for more time and you agree, the agreement governs. The opinion is about unilateral extensions, not negotiated ones.

Q: What if the city just doesn't respond?
A: You have an enforcement remedy under § 2.2-3713. You can file a petition for mandamus or injunction in general district or circuit court. Successful enforcement can carry attorneys' fees and costs.

Q: Could the General Assembly extend FOIA deadlines during the emergency?
A: Yes, by statute. The General Assembly created VFOIA and can amend it. This opinion only says local government cannot do it on its own under § 15.2-1413.

Q: What about agency-level "non-essential staff" furloughs that delay responses?
A: The opinion does not directly address staffing emergencies, but its logic suggests that internal staffing decisions do not change the statutory deadlines. A public body that cannot meet a deadline has the "not practically possible" path and the § 2.2-3704(C) court petition, those are the options the statute provides.

Q: I'm a city attorney. Can I draft a continuity-of-government ordinance that adds a few extra days for FOIA responses?
A: Per this opinion, no. The continuity-of-government authority under § 15.2-1413 is narrow, and § 2.2-3700 voids any local ordinance that conflicts with VFOIA. If your city needs flexibility, push for legislative change at the state level, not local ordinance.

Citations and references

Statutes:

• Va. Code § 2.2-3700 (VFOIA policy; ordinance preemption)
• Va. Code § 2.2-3704 (Time limits)
• Va. Code § 15.2-1413 (Continuity of government)

Cases:

• Marble Techs, Inc. v. City of Hampton, 279 Va. 409, 690 S.E.2d 84 (2010) (Virginia Supreme Court; Dillon Rule)

Prior AG opinions:

• 2020 Op. Va. Att'y Gen. No. 20-011 (electronic meetings during COVID-19)
• 2020 Op. Va. Att'y Gen. No. 20-036 (school board FOIA conflict)

Related authorities:

• VA. FREEDOM OF INFORMATION ADVISORY COUNCIL, Op. No. A05-14 (June 12, 2014) (agreements between public body and requester)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-043-Hudson-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

October 5, 2020

The Honorable Sally Hudson
Member, Virginia House of Delegates
Post Office Box 2375
Charlottesville, Virginia 22902

Dear Delegate Hudson:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether Virginia Code § 15.2-1413 permits localities to modify or indefinitely extend the time limits for responding to requests for records set forth in § 2.2-3704 of the Virginia Freedom of Information Act (VFOIA).

Applicable Law and Discussion

1. VFOIA calls for transparency in government and establishes specific time limits for responding to requests for records.

"[T]he tenets of open government and transparency are the core principles of VFOIA."[1] The General Assembly has emphasized that VFOIA "shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government."[2] As this Office has previously explained, even during a state of emergency, "the requirements of VFOIA, open government, and transparency remain critically important."[3]

Section 2.2-3704 of VFOIA establishes a strong presumption of public access to government records, providing that, "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth."[4] That same provision also imposes specific time limits for a public body to respond to requests for records unless the public body and the requester have reached a different agreement.[5] In particular, the statute provides that a public body that is the custodian of requested records "shall promptly, but in all cases within five working days of receiving [the] request," do one of five things: (1) provide the records in full; (2) provide the records in part but with portions withheld as authorized by statute; (3) advise the requester that the records are being withheld entirely as authorized by statute; (4) advise the requester that the records could not be found or do not exist; or (5) advise the requester that it is not practically possible to provide the records or to determine their availability within the five-work-day period and provide an explanation of the conditions that make a response impossible.[6] If the last response is made within the five-work-day period, the statute provides that the public body "shall have an additional seven work days" to respond to the requester under one of the four preceding responses.[7]

2. Virginia Code § 15.2-1413 does not authorize a locality to suspend VFOIA's time limits for responding to requests for records.

In March of this year, this Office issued an opinion addressing whether local governing bodies may conduct certain meetings solely by electronic communication during the COVID-19 emergency. The opinion concluded that the answer to that question was yes, relying in part on language in § 15.2-1413 that authorizes localities to "'provide a method to assure continuity in its government.'"[8] The opinion also specifically "emphasize[d] the limits of the authority conferred by Code § 15.2-1413," noting that "[a]ny ordinances enacted pursuant to that provision, particularly those authorizing departures from otherwise-governing state law, must be carefully limited in scope to allowing the locality 'to assure continuity in its government' during the declared emergency."[9]

The actions you describe in your request do not satisfy that standard. As this Office's previous opinion emphasized, § 15.2-1413 permits a locality to adopt a plan to provide "'continuity in its government,'" including "the coordination of essential functions during an emergency" and "ensur[ing] that essential functions are continued during [that] emergency."[10] But nothing in that opinion, or in the text of § 15.2-1413, recognizes a general power to determine whether statutory directives imposed by the General Assembly constitute "essential" or "non-essential" functions, and then, on that basis, to suspend compliance with directives of state law that the locality deems "non-essential." Such a construction would be particularly unwarranted in this context, because the General Assembly has specifically instructed that the provisions of VFOIA must be liberally construed to promote transparency.[11] For that reason, it is my opinion that § 15.2-1413 does not authorize a locality to enact an ordinance that modifies or indefinitely extends the time limits for responding to requests for records set forth in VFOIA. And because VFOIA specifically states that "[a]ny ordinance adopted by a local governing body that conflicts with the provisions [VFOIA] shall be void,"[12] any such ordinance would be without legal effect.

Conclusion

It is my opinion that § 15.2-1413 does not empower a locality to modify or indefinitely extend the deadlines for responding to requests for records set forth in § 2.2-3704(B) of the Virginia Freedom of Information Act. The time limits for responding to requests for records in VFOIA remain in place and must be complied with even during the current emergency.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. 2020 Op. Va. Att'y Gen. No. 20-036 at 2, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/1632-2020-official-opinions#september.

2. Va. Code Ann. § 2.2-3700(B) (This and all other citations to the Code of Virginia herein are from the electronic version of the Code on LexisNexis and are current through the 2020 Regular Session, and 2020 Special Session I, c. 1, of the General Assembly.).

3. 2020 Op. Va. Att'y Gen. No. 20-011 at 2, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/1632-2020-official-opinions#march.

4. Va. Code Ann. § 2.2-3704(A).

5. VFOIA specifically permits such agreements. See, e.g., Va. Code Ann. §§ 2.2-3700, -3704(C); Va. Freedom of Information Advisory Council, Op. No. A05-14, available at http://foiacouncil.dls.virginia.gov/ops/14/AO_05_14.htm (June 12, 2014).

6. See Va. Code Ann. § 2.2-3704(B).

7. VFOIA also permits a public body to "petition the appropriate court for additional time to respond to a request for records when the request is for an extraordinary volume of records or requires an extraordinarily lengthy search, and a response by the public body within the time required by [VFOIA] will prevent the public body from meeting its operational responsibilities." Va. Code Ann. § 2.2-3704(C). "Before proceeding with the petition, however, the public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested." Id.

8. 2020 Op. Va. Att'y Gen. No. 20-011 at 6, available at https://www.oag.state.va.us/citizen-resources/opinions/official-opinions/30-resource/opinions/1632-2020-official-opinions#march (quoting Va. Code Ann. § 15.2-1413); see also H.B. 29, 2020 Reg. Sess., Item 4-0.01 (2020 Va. Acts ch. 1283), and H.B. 30, 2020 Reg. Sess., Item 4-0.01, both enactments available at https://budget.lis.virginia.gov/ (effectively codifying this conclusion by providing that any public body "may meet by electronic communication means [during a declared emergency], provided ... (i) the nature of the declared emergency makes it impracticable or unsafe for the public body or governing board to assemble in a single location[,] [and] (ii) the purpose of meeting is to discuss or transact the business statutorily required or necessary to continue operations of the public body ... and the discharge of its lawful purposes, duties, and responsibilities").

9. Id. (quoting Va. Code Ann. § 15.2-1413).

10. Id. at n.6 (quoting Va. Code Ann. § 15.2-1413).

11. Va. Code Ann. § 2.2-3700(B); see also Marble Techs, Inc. v. City of Hampton, 279 Va. 409, 417, 690 S.E.2d 84, 88 (2010) (stating that under the Dillon Rule, "if there is a reasonable doubt whether legislative power exists, the doubt must be resolved against the local governing body").

12. See Va. Code Ann. § 2.2-3700.