FOIA Bill with Local Tie Passed Over for the Year in the General Assembly

The bill would have clarified that service of process is not required when citizens seek to enforce their rights under the Freedom of Information Act.

By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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Photo by Michael Held on Unsplash

A bill seeking to clarify what is already in Virginia Code regarding how citizens can enforce their rights under the Freedom of Information Act (FOIA) has been continued to next General Assembly session.

House Bill 159—which was introduced by Del. Marcus Simon and was partially inspired by a FOIA case that went before Spotsylvania General District Court in 2024—passed the House of Representatives unanimously in January, but was continued by the Senate Committee on General Laws and Technology last week by a vote of 13-to-1.

Senator Danica Roem, who worked as a journalist for a decade, was the sole vote against continuing the bill to next session.

The bill would have amended Virginia Code Section 2.2-3713, which lays out the process by which citizens seeking the release of records held by public bodies can ask a court to order the release of the requested records. Existing code states that a citizen’s petition for release of the records “shall be heard within seven days” provided that the defendant—the government office or public body—has “received [emphasis added] a copy of the petition at least three working days prior to filing.”

The law as it is written now does not state that the petition has to be “served,” only that it must be “received,” and HB159 would have clarified that further by adding the following sentence: “Nothing in this section shall be construed to require service of process by a sheriff or private process server when a petition for mandamus or injunction to enforce rights granted under this chapter has been filed.”

A substitute offered by the Senate General Laws and Technology Committee also added that either the public body or the public body’s FOIA officer must have received a copy of the petition three days prior to filing.

Speaking in support of HB159 before the Senate committee on February 25, Megan Rhyne, executive director of the Virginia Coalition for Open Government, said that in the past 18 months, three separate litigants (one in Spotsylvania) have had their cases dismissed because they didn’t have their petitions served by the Sheriff or third party civil process server.

“That’s not in the law,” Rhyne said. “This bill is just trying to say, ‘Hey, that’s not in the law, so don’t make them get a third party service to serve this petition to them.’

“We’re just trying to put this in place so … we don’t have more citizens whose cases are being dismissed for something that’s not in the current law,” she continued.

Simon said the idea of the bill is that “pro se litigants [citizens who are representing themselves in court] are coming for documents they are entitled to have.”

“You want to get them quick, and it’s difficult to meet all the formalities of a formal service of process by Sheriff or process server,” Simon said. “We’re hoping this speeds the process along.”

There was no opposition to HB159 entered by either the Virginia Association of Counties or the Virginia Municipal League. However, Randy Eads, general counsel for the Office of the Attorney General, spoke in opposition to the bill before the Senate committee last week.

Eads, who served as Bristol City Manager before taking the job with the OAG in January, said his concern is not “with the bill overall” but with “technicalities of service of process.”

“Civil Procedure 101 teaches attorneys that service of process is something that all defendants must have in a lawsuit,” he said.

The law firm Sands Anderson, which represents many local governments and school boards in Virginia, also recommended that public bodies reach out to express concern about HB159 and several other pending FOIA bills.

“[HB159] creates serious due process concerns and operational risks for government entities who may not timely learn of legal proceedings to prepare an adequate response,” wrote Sands Anderson attorney and shareholder Pamela O’Berry in a January 29, 2026, update published on the firm’s website.

The bill now goes back to the General Assembly’s Freedom of Information Advisory Council for “workshopping,” as Jeremy McPike, Chair of the Senate’s General Laws and Technology Committee, described it.

In an email to the Advance, Rhyne said she is “very disappointed that this bill was passed over for the year, leaving citizens vulnerable for another year to having their cases dismissed for reasons that don’t exist in the current statute.”

“FOIA petitions are the only way citizens can enforce their rights to access public records and meetings, and we were trying to ease that burden by clarifying that judges shouldn’t impose additional procedural hoops to jump through.”

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