Using FOIA to Strengthen Your Personal Injury Case

Article written by Investigator Danny Brabham

It is important to know that if you are involved in a personal injury incident that in any way involves a town, county, city, state or federal agency, the Federal Freedom of Information Act (FOIA) of 1967 and/or the Virginia Freedom of Information Act of 1968 could prove to be extremely beneficial to your case.

Virginia FOIA

The Virginia Freedom of Information Act (FOIA) was established by the Virginia General Assembly and was enacted on July 1, 1968 to ensure that citizens have access to public records and meetings of public bodies.[1]

The Virginia Freedom of Information Act (FOIA), like the Federal Freedom of Information Act, has a number of exemptions. They are as follows:

1. Petit juries and grand juries;
2. Family assessment and planning teams established pursuant to §2.2-5207;
3. Sexual assault response teams established pursuant to § 2-1627.4 and human trafficking response teams established pursuant to § 15.2-1627.6, except that records relating to (i) protocols and policies of the sexual assault or human trafficking response team and (ii) guidelines for the community’s response established by the sexual assault or human trafficking response team shall be public records and subject to the provisions of this chapter;
4. Multidisciplinary child sexual abuse response teams established pursuant to § 2-1627.5;
5. The Virginia State Crime Commission; and
6. The records maintained by the clerks of the courts of record, as defined in § 1-212, for which clerks are custodians under § 1-242, and courts not of record, as defined in § 16.1-69.5, for which clerks are custodians under § 16.1-69.54, including those transferred for storage, maintenance, or archiving. Such records shall be requested in accordance with the provisions of §§ 16.1-69.54:1 and 17.1-208, as appropriate. However, other records maintained by the clerks of such courts shall be public records and subject to the provisions of this chapter.

In most personal injury cases in Virginia that involve a motor vehicle crashes, a simple request made to the investigating agency requesting the information below can be exceptionally helpful to you and your attorney prior to the filing of a lawsuit:

• A copy of the investigation officer’s field notes, including, but not limited to, diagrams, measurements, names and contact information for any witnesses, and statements from all parties, including witnesses;
• All dash cam and/or body worn camera footage relating to the motor vehicle crash;
• All photographs taken at the scene of the motor vehicle crash;
• Any CAD (Computer Aided Dispatch) produced by the investigating agency.

If your motor vehicle crash involves a tractor trailer or a fatality and was investigated by the Virginia State Police, it would be further helpful to also request a copy of  the Virginia State Police Motor Carrier Post-Crash Investigative Report or a copy of any report, notes, photographs or video produced by any member of an accident reconstruction team.

With an incident that was investigated or handled by an agency other than the Virginia State Police, it is recommended that you contact the jurisdiction involved by telephone to determine who the agency’s Freedom of Information officer is and where to send your request for records.

Costs for Virginia FOIA Requests

The Virginia Freedom of Information statute “allows a public body to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records at the lowest possible costs.

Also, prior to conducting a search for the records requested, agencies may require a deposit if the estimated charges exceed a certain threshold before proceeding with the request.

In Virginia, the Freedom of Information Advisory Council can be contacted for general questions about FOIA.  Their contact information is as follows:

Virginia Freedom of Information Advisory Council
900 E. Main Street
Richmond, VA 23219
804.225.3056

Federal FOIA

The Federal Freedom of Information Act was enacted on July 4, 1966. The Federal Freedom of Information Act mandates all federal agencies to disclose requested information to the public under the FOIA unless it falls under one of the following nine exemptions below that are to protect interests such as personal privacy, privileged communications and law enforcement interests. The following will not be produced:

1. Information that is properly classified under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy;
2. Information related solely to the internal personnel rules and practices of an agency;
3. Information specifically exempted from disclosure by another statute, if that statute either: (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (2) establishes particular criteria for withholding or refers to particular types of matters to be withheld. An Exemption 3 statute must also cite specifically to subsection (b)(3) of the FOIA if enacted after October 28, 2009;
4. Trade secrets and commercial or financial information that is obtained from outside the government and that is privileged or confidential;
5. Records exchanged within or between agencies that are normally privileged in the civil discovery context, such as records protected by the deliberative process privilege (provided the records are less than 25 years old), attorney work-product privilege, or attorney client privilege;
6. Information about individuals in personnel and medical files and similar files when the disclosure of that information would constitute a clearly unwarranted invasion of personal privacy;
7. Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
8. 1. could reasonably be expected to interfere with enforcement proceedings;
   2. would deprive a person of a right to a fair trial or an impartial adjudication;
   3. could reasonably be expected to constitute an unwarranted invasion of personal privacy;
   4. could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis. In the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, it also protects information furnished by the confidential source;
   5. would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law;
   6. could reasonably be expected to endanger the life or physical safety of any individual;

8. Information contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of, an agency responsible for the regulation or supervision of financial institutions; and

9. Geological and geophysical information and data, including maps, concerning wells.[2]

Federal Freedom of Information (FOIA) requests should be forwarded to the federal agency that is the “keeper of the record” or the agency responsible for maintaining and managing the record requested. The website https://www.foia.gov allows individuals to search for the correct agency among the four hundred and fifty seven agencies to submit your request to and provides the following information for each agency:

• Agency mission;
• Contact information;
• Average processing time for requests;
• Agency’s website information.

Costs for Federal FOIA Requests

Federal agencies can charge for the direct costs for searching or, reviewing and copying requested records.

The Office of Information Policy at the Department of Justice is the agency responsible to providing government-wide guidance on FOIA. Their contact information is as follows:

Office of Information Policy (OIP)
U.S. Department of Justice
441 G Street NW, 6^th Floor
Washington, DC 20530
Email:  National.FOIAPortal@usdoj.gov

Understanding and utilizing FOIA requests can make a significant difference in the strength of your personal injury claim. From securing crash reports and photographs to obtaining body cam footage and investigation notes, these records often provide crucial evidence that may otherwise be difficult to access. Knowing your rights under Virginia and Federal FOIA is a powerful step toward protecting your interests and achieving the best possible outcome. If you need guidance on your personal injury case, contact our experienced attorneys at today.

[1] The full Virginia Freedom of Information Act (FOIA) statute 5 U.S.C § 552 can be found online at https://law.lis.virginia.gov/vacodepopularnames/virginia-freedom-of-information-act/.
[2] The full Federal Freedom of Information Act (FOIA) statute 5 U.S.C § 552 can be found online at https://www.justice.gov/oip/freedom-act-5-usc-552.