FOI Advisory Council Opinion: Declaratory Relief & Virginia FOIA
The Virginia Freedom of Information Advisory Council released its opinion on declaratory relief in VAFOIA disputes last week.
Virginia’s Freedom of Information Act lays out the process by which an individual can bring the matter to a Virginia court, if the individual believes their rights under FOIA have been violated. Specifically, Va. Code § 2.2-3713 provides for the filing of a “petition for mandamus or injunction, supported by an affidavit showing good cause.”
But what if the individual isn’t interested in mandamus or injunctive relief - or no such relief appears possible?
What if, in the process of requesting public records, an individual’s rights are violated under FOIA - but that person does not want a court to order records released or to enjoin certain government action?
Take, for example, my recent attempts to acquire the Organized Retail Theft Manual. Although Henrico Commonwealth’s Attorney Shannon Taylor’s office did not respond to my request within the timeframe required by law, ultimately her office claimed not to have the record in question.
In my experience, it’s not uncommon for public bodies in Virginia to violate the law in these types of circumstances - knowing, in the end, our state judicial system will not allow for accountability. How, then, would someone in this position move a court to determine that a violation of FOIA took place - when there’s no record to ask for via mandamus relief, and there’s no clear behavior to enjoin?
At the federal level, the answer seems clear: seek declaratory relief as part of your lawsuit. Through declaratory relief, a court can determine if one’s rights under FOIA were violated without ordering any specific government action.
But can we seek declaratory relief in FOIA disputes at the state level?
On January 1, 2024, I submitted a request for an official opinion from the Virginia Freedom of Information Advisory Council on this question pursuant to Va. Code § 30-179. My request:
Generally, I would like to know if it is permissible to request declaratory relief under the Virginia Declaratory Judgement Act (Va. Code § 8.01-184 et seq.) as it pertains to disputes concerning the Virginia Freedom of Information Act.
Specifically, I would like the Council to address the following questions:
(1) Does Va. Code § 2.2-3713 (or any other section/case law) preclude actions solely for declaratory relief concerning Virginia Freedom of Information Act disputes?
(2) Does Va. Code § 2.2-3713 (or any other section/case law) preclude actions for declaratory relief in conjunction with mandamus/injunctive relief concerning Virginia Freedom of Information Act disputes?
Although Va. Code § 30-179 requires the Council to furnish such opinions “in an expeditious manner,” I received the opinion last Wednesday, March 19, 2025 - over a year after my request.
You can download the opinion, AO-01-25, here:
The 14-page opinion, which is worth reading if you’re interested in how Virginia courts have dealt with this question, concludes in part:
There appears to be no provision in FOIA that this office is aware of that would seem to preclude the utilization of a declaratory judgment action in the adjudication of a FOIA dispute. While the case law from Virginia courts as previously examined appears to present differing results, the final conclusion appears to be that declaratory judgment is available under appropriate circumstances, but otherwise the petition for mandamus or injunction would be the sole remedy available under FOIA.
