Virginia Attorney General Mark Herring (D) said in a recent opinion that localities should continue to follow state law regarding Freedom of Information Act request response times amid the coronavirus pandemic.

Herring’s opinion to state Del. Sally Hudson (D) in early October follows localities’ requests to allow delays due to the COVID-19 crisis.

As part of the Loudoun County Board of Supervisors’ emergency ordinance adoption on April 15, deadlines for the county and its officers were suspended during the pandemic. The action was renewed last month.

Herring said Virginia Code 15.2-1413 “does not empower a locality to modify or indefinitely extend the deadlines for responding to requests for records.” He added that “the time limits for responding to requests for records remain in place and must be complied with even during the current emergency.”

The attorney general’s opinion states that 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,” according to the Virginia Press Association:

• Provide the records in full;

• Provide the records in part but with portions withheld as authorized by statute;

• Advise the requester that the records are being withheld entirely as authorized by statute;

• Advise the requester that the records could not be found or do not exist; and

• 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. 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.

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