Virginia Freedom of Information Act (VFOIA)

The Virginia Freedom of Information Act (VFOIA), codified at Virginia Code § 2.2-3700 et seq. is one of the most consequential tools available to residents, researchers, journalists, and advocates seeking to understand how environmental decisions are made in the Commonwealth of Virginia. The statute establishes that: “All public records shall be open to citizens of the Commonwealth… unless otherwise specifically provided by law.”

The existence of VFOIA establishes the legal right of the public to request and receive access to records held by state and local government agencies. Such request can be made by mail, fax, email, in person, or phone. Under VFOIA, all public records are presumed open unless a specific exemption applies, any most Virginia residents, and most other citizens may submit a FOIA request, and agencies must respond within a set timeframe. Residents, community organizations, students and researchers, journalists and advocates may request things like, environmental permits and permit applications, air monitoring data and quality assurance plans, emails and correspondence between agencies, residents, elected officials, and companies, inspection reports and enforcement records, contracts, grants, and funding proposals, meeting notes, presentations, and internal memoranda. Requests do not require a stated purpose. Agencies may not ask why records are being requested, only whether the request is sufficiently specific. Records may exist in paper or electronic form and include drafts, attachments, and metadata. Importantly, FOIA applies not only to final decisions but also to deliberative processes, subject to certain exemptions. When disputes arise over access to records or the scope of exemptions, guidance and advisory opinions are available from the Virginia Freedom of Information Advisory Council, established under Virginia Code § 30-178. DEQ’s own FOIA rights and responsibilities, including how to submit requests and appeal denials, are outlined on its official FOIA page.

For environmental justice communities, VFOIA provides a way to move beyond official summaries and public-facing statements to examine the actual administrative record. For communities impacted by coal dust in Hampton Roads, FOIA has been one of the few mechanisms available to understand how environmental decisions were actually made by agencies such as the Virginia Department of Environmental Quality (DEQ). In the context of coal dust, FOIA has made it possible to access records that are rarely published proactively, including correspondence between regulators and terminal operators, internal discussions about monitoring plans, compliance strategies, enforcement decisions, and operational documentation. These records allow residents and researchers to reconstruct how agencies such as the DEQ interpreted coal dust complaints, how risks were framed internally, and how regulatory responsibilities were understood over time. Without FOIA, much of this institutional history would remain inaccessible, leaving affected communities with little ability to challenge official narratives or evaluate regulatory performance.

Purpose

FOIA exists because public records are presumed open, transparency is deemed essential to democratic governance, government business should be conducted in the open and that records created by public agencies belong to the public, not the institutions that hold them. In environmental governance, where technical decisions can have lasting consequences for health, land use, and racial justice, this presumption of openness is especially significant. Many of the permits, monitoring plans, agency reports, invoices, and internal communications preserved in the Voices in the Dust archive exist only because they were obtained through FOIA requests. Environmental regulation is often presented to the public as a neutral, technical process, but in practice it involves judgment calls, discretionary choices, and negotiations that take place largely out of public view. FOIA requests make it possible to trace how those decisions were made, what information was considered or excluded, and how agencies responded when community concerns conflicted with industrial or political pressures.

Role

Communities facing disproportionate pollution burdens can use public records laws to document patterns of neglect, delay, and unequal enforcement. FOIA requests can support civil rights complaints, inform litigation and policy advocacy, and provided the evidentiary foundation for investigative reporting. FOIA requests make it possible to trace how agencies like DEQ, VDH, and EPA interpreted coal dust complaints, identify gaps between public statements and internal assessments, recover data that was collected but not published and understand delays, inaction, or changes in enforcement posture. For environmental justice communities, FOIA helps counter the structural imbalance that allows institutions and industries to control information while residents are asked to accept official conclusions without access to underlying records.

Limitations

FOIA is powerful, but it is not without limits. The Code of Virginia allows public bodies to withhold certain categories of records when disclosure would conflict with other protected interests.

Under VFOIA, agencies may withhold records that fall within specific statutory exemptions. Importantly, these exemptions are permissive, not mandatory—meaning agencies are allowed to withhold records but are not always required to do so. In practice, however, many public bodies routinely invoke all applicable exemptions as a matter of institutional policy.

Local governments and state agencies across Virginia commonly cite exemptions related to:

• Personnel records (Virginia Code § 2.2-3705.1(1)), which protect individual employees’ files
• Attorney–client privilege and attorney work product (§ 2.2-3705.1(2)–(3)), often invoked to withhold legal strategy or advice
• Vendor proprietary or trade secret information (§ 2.2-3705.1(6)), frequently used when regulated industries submit operational data
• Contract negotiations prior to award (§ 2.2-3705.1(12)), limiting access to draft agreements or financial terms
• Health records (§ 2.2-3705.5(1)), protecting personal medical information
• Criminal investigation records (§ 2.2-3706(A)(2)(a))
• Security-related plans (§ 2.2-3706(F)(1)), where disclosure could allegedly jeopardize safety

Some jurisdictions explicitly state that they will invoke all applicable exemptions in response to FOIA requests in order to “treat all citizens the same” and to protect institutional interests such as privacy, litigation posture, or bargaining power.

These limitations do not render FOIA meaningless. Agencies must still cite the specific statutory exemptions they rely on, release non-exempt portions of records, and acknowledge the existence of withheld materials. Moreover, many of the most analytically useful records, such as permits, monitoring data, inspection dates, and utility invoices, are not covered by common exemptions. The water usage records used to evaluate dust suppression systems fell into this category, making them a critical source of accountability even when other documents were redacted or withheld.

The limits of FOIA are themselves part of the record. Patterns of delay, redaction, and exemption reveal how environmental governance actually operates, where institutions perceive risk, and whose interests are most protected. Voices in the Dust preserves not only what was disclosed, but how disclosure occurred, including response timelines, redactions, and exemption claims. In doing so, the archive treats transparency not as a given, but as a contested terrain.

For Voices in the Dust, FOIA is more than a legal mechanism. It is a method of repair. By recovering, preserving, and contextualizing public records, the archive restores access to information that shapes community health and environmental futures. FOIA allows communities to move from being spoken about to speaking with evidence. It makes visible the administrative systems that sustain environmental harm and affirms that environmental justice is not only about clean air, but about who gets to know, who gets to decide, and whose knowledge counts.

Relevance

In the case of coal dust, FOIA has been particularly important because impacts are often dismissed as anecdotal or unproven. Through FOIA, community members and researchers working with the Repair Lab were able to obtain air permits, monitoring proposals, internal agency emails, inspection records, and historical correspondence that reveal how coal dust concerns were handled administratively. These documents show not only what agencies ultimately decided, but how those decisions evolved, stalled, or narrowed over time.

One use of FOIA in the Voices in the Dust project involved requests for water usage bills and invoices associated with coal terminal operations. Coal terminals routinely assert, both publicly and in regulatory contexts, that wet dust suppression systems are used regularly to control coal dust emissions. These claims are often accepted by regulators as evidence of good-faith compliance. Through FOIA requests submitted to public agencies, the Repair Lab obtained water usage records tied to terminal infrastructure. These routine public records made it possible to examine actual water consumption over time and assess whether usage patterns were consistent with the frequency and duration of dust suppression claimed by terminal operators.

By comparing water usage data with residents’ documented observations of persistent coal dust, researchers were able to independently evaluate the plausibility of official claims. In several cases, the records raised serious questions about whether suppression systems were being used as extensively or consistently as asserted. This analysis mattered because it provided a data-based way to validate residents’ lived experience using the state’s own records. FOIA made this form of accountability possible by opening access to records that would otherwise remain unseen.

VFOIA allows members of the public to request a wide range of existing records, including environmental permits, air monitoring data, internal correspondence, inspection reports, contracts, and utility invoices. The law applies only to records that already exist; agencies are not required to create new documents, conduct analyses, or answer questions. Nevertheless, the records that do exist often contain enough information to reconstruct regulatory decisions, identify gaps in enforcement, and test institutional claims against material evidence.

FOIA Request Template

[Date]

FOIA Officer

[Agency name]

[Agency mailing address or FOIA email address]

Subject: Virginia Freedom of Information Act Request – Coal Dust Records

Dear FOIA Officer,

Pursuant to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.), I respectfully request access to the following public records related to coal dust emissions, monitoring, enforcement, and community complaints in [Newport News / Norfolk]:

All [desired documents, communications] between [division / office / individual] and [relevant entities] regarding [relevant issues] from [start date] to [end date].

I request these records in electronic format (PDF, Excel, or Word) whenever possible.

This request is made for public interest and educational purposes as part of a university research initiative related to community health disparities, and environmental justice in Virginia. Disclosure of these materials will contribute to public understanding of environmental health risks and government oversight.

I respectfully request a waiver of any fees, as the information is not being sought for commercial use. If any portion of the requested records is exempt, please release all reasonably segregable non-exempt portions and cite the specific exemption applied.

Please confirm receipt of this request and contact me at [email] if clarification is needed.

Sincerely,

[Your name], [institution / organization], email: [email address], phone: [phone number]

Documents

File:FOIA TEMPLATE.docx