April 20, 2026
Virginia’s Freedom of Information Act:
Proactively avoiding delays in obtaining privately maintained public records
BY: Wil Russell
In litigation, the familiar adage “timing is everything” is perhaps most applicable. Having the right information at the right time can make the difference between confident, informed litigation strategy and being caught flat-footed. Increasingly, Virginia agencies are outsourcing the electronic storage of public records to private data management companies—an arrangement which improves efficiency and security, but which also muddies the water when it comes to determining who is the custodian of such records for the purpose of a Virginia Freedom of Information Act (“VFOIA”) request. Disputes over the identity of the proper custodian of certain public records delays access to those records and the critical information contained therein.
In the Commonwealth of Virginia, state agencies must maintain certain “public records,” including those related to arrests, investigations, and pawn shop transactions, among others.1 The VFOIA provides a framework for obtaining these public records, subject to certain exclusions.2 In enacting VFOIA, the General Assembly sought to “ensure[] that the people of the Commonwealth [have] ready access to public records in the custody of a public body.”3 Of course, for VFOIA to apply, the records sought must be “public records”, defined as “all writings and recordings . . . prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business.”4
Recently, some VFOIA requests submitted to state agencies that outsource their record-keeping to private contractors have been met with varying degrees of resistance on the basis that the subject records are maintained by a private contractor, and, therefore, are not in the agency’s “custody.”5 This argument is incorrect. In 2010, the General Assembly amended Virginia Code § 2.2 3704 to include subsection J, which expressly provides that public bodies that transfer public records to other entities for storage, maintenance, or archival remain the custodians of such records for the purpose of VFOIA requests.6 In 2017, the Supreme Court of Virginia concluded that Virginia Code § 17.1-242 establishes that clerks of court are custodians of court records, and, applying Virginia Code § 2.2 3704(J) agreed with Virginia’s Attorney General, holding that clerks of court remained the custodians of court records notwithstanding the transfer of such records to the Executive Secretary.7
The resistance to produce records that have been transferred to a private contractor, however misplaced, delays access to public records, which poses problems when the subject records inform your litigation strategy or an important argument. For example, it would be unfortunate for a VFOIA custody dispute to prevent access to relevant information by a filing date or discovery deadline. To avoid such prejudicial delays, consider getting ahead of this argument by including the following language in your initial VFOIA request:
“Please note that, pursuant to Virginia Code § 2.2-3704(J), [SUBJECT PUBLIC BODY] remains the custodian of any public records which [SUBJECT PUBLIC BODY] has caused to be stored, maintained, or archived by any other entity, including a private contractor.”
In conclusion, by directing the responding public body to the foregoing authority in your initial VFOIA request, you can proactively avoid any disputes related to custody of privately stored, maintained, or archived public records, and get the public information you need, when you need it.
Endnotes:
1 See Va. Code Ann. § 15.2-1722 (requiring “the maintenance of adequate personnel, arrest, investigative, reportable incidents, and noncriminal incidents records necessary for the efficient operation of a law-enforcement agency”); see also Va. Code Ann. § 54.1-4010 (requiring pawnbrokers to “prepare a daily report of all . . . things pawned or pledged with him or sold to him that day and . . . file such report . . . the following day with the chief of police or other law enforcement officer”).
2 Va. Code Ann. § 2.2-3704 §§ (A)-(J) (General guidelines for VFOIA requests); Va. Code Ann. §§ 2.2-3705.1 through 2.2-3705.8 (VFOIA exclusions).
3 Va. Code Ann. § 2.2-3700(B).
4 Va. Code Ann. § 2.2-3701.
5 See Va. Code Ann. § 2.2-3704 §§ (A) and (B) (The custodians of the subject public records have the duty to retrieve and supply the records that are the subject of the VFOIA request).
6 Va. Code Ann. 2.2-3704(J); H.B. 518, 2010 Reg. Sess. (Va. 2010).
7 Daily Press, LLC v. Off. of Exec. Sec'y of Supreme Ct., 293 Va. 551, 558-563 (2017).