FOIA Enforcement Bill with a Local Tie Passes Virginia House of Delegates Unanimously
Legislation introduced this session would fix a discrepancy uncovered by a local lawsuit.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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The Virginia House of Delegates last week unanimously passed a bill that would solve an issue brought to light in 2024 during court hearings on a petition seeking the release of records by the Spotsylvania School Board.
House Bill 159—introduced by Del. Marcus Simon, Chair of the General Assembly’s Freedom of Information Advisory Council—specifies that “service of process or a summons for a hearing shall not be required” when a citizen files a petition seeking to enforce their rights under the Virginia Freedom of Information Act (VFOIA).
The state Senate will now take up the legislation.
The bill aims to fix an issue that came to light in the fall of 2024, when attorneys with the law firm McGuire Woods, representing Spotsylvania School Board members Lisa Phelps and April Gillespie and superintendent Clint Mitchell, argued successfully before a district court judge that a petition seeking the release of emails related to the Riverbend High School swim team should be dismissed because it was “improperly served.”
The attorneys argued that the petitioner, Theo Marcus, did not properly follow the process for serving notice of the petition, mainly because he served the petition himself and did so via email, rather than enlisting the Sheriff’s Office or a third-party civil process server.
But Virginia Code specifically does not require FOIA lawsuits be “served,” only that they must be “received” by the party against whom the petition is brought.
Megan Rhyne, executive director of the Virginia Coalition for Open Government, told the Advance in 2024 that this language is intentional, and that a service of process requirement would be “a procedural booby trap” and a barrier to citizens attempting to enforce their rights under FOIA.
HB 159 adds the following sentence to Code to strengthen the existing language: “Nothing in this section shall be construed to require service of process or a summons for a hearing when a petition” has been filed by a citizen seeking to enforce their rights under FOIA.
As originally introduced, the bill would also have required the Office of the Executive Secretary of the Supreme Court to update “any district court materials, including any manuals, procedures, guidelines, and bench books, in accordance with the provisions of this act.”
This language was stricken from the bill while it was being discussed in a subcommittee of the House Committee on General Laws.
The 2023 edition of the Virginia Judicial District Court Benchbook states that “Providing a copy of a petition before filing is not a substitute for service of process after filing.” Attorneys for the Spotsylvania School Board pointed to this language to support their argument.
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That McGuire Woods argument was pure procedural gamesmanship, honestly. When code explicitly says "received" instead of "served," trying to dismiss on service grounds is the exact kind of bureaucratic tripwire that makes transparency harder for regular folks. Ran into similar nonsense once trying to get meeting minutes from a local board and it took 6 months of back-and-forth becuase they kept inventing hoops.