A BILL to amend and reenact §§ 2.2-3714 and 2.2-3715 of the Code of Virginia, relating to Virginia Freedom of Information Act; officers, employees, or members of a public body; alleged willful and knowing violations; mitigating factors to be considered.
HB160 amends the Virginia Freedom of Information Act (FOIA) to adjust how courts handle alleged willful and knowing violations by officers, employees, or members of a public body. The bill keeps the existing civil penalty structure for individual violations, including higher penalties for repeat violations, and it adds a specific penalty for situations where public records were altered or destroyed to avoid FOIA before the applicable retention period expired. It also authorizes a penalty against a public body when a closed meeting certification was improper.
The bill further directs courts to consider mitigating factors when deciding whether to impose penalties. Those factors include reliance on opinions of the Attorney General, relevant court cases, published opinions of the Virginia Freedom of Information Advisory Council, and advice of counsel. In effect, the bill seeks to clarify when a violation should be treated as willful and knowing and when good-faith reliance on legal guidance should reduce or avoid liability.
HB160 would amend §§ 2.2-3714 and 2.2-3715 of the Code of Virginia, affecting enforcement provisions under FOIA. It would expand potential civil penalties for intentional destruction or alteration of records and improper closed-meeting certifications, while also codifying mitigating factors that courts must consider in assessing whether an individual acted willfully and knowingly. Public bodies, their officials, and employees would be the primary parties affected, along with requesters seeking records and courts enforcing FOIA compliance.
The available legislative history suggests a neutral to cautious reception rather than strong opposition or enthusiasm. The bill was referred to the General Laws committee and ultimately continued to the next session by voice vote, which indicates it did not advance but also was not defeated on a recorded vote. The text itself reflects a policy balance between stronger accountability for FOIA violations and protection for officials who relied in good faith on legal advice or authoritative guidance.
The main point of contention is likely the balance between stronger penalties for FOIA violations and the need to protect public officials who act based on legal advice or prior guidance. Supporters would likely favor the added penalties for intentional record destruction and improper closed-meeting certifications as stronger enforcement tools, while opponents may worry that expanded penalties could chill decision-making by local officials or expose them to personal liability. Another likely issue is whether the bill gives courts enough discretion through mitigating factors, or whether those factors could weaken enforcement by making penalties harder to impose.