FOIA Legislation Introduced in the General Assembly this Session Would Solve a Discrepancy Uncovered by Local Case
It would make clear that "service of process" is not required for citizens seeking to enforce their rights under the Virginia Freedom of Information Act.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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Legislation introduced this General Assembly Session by Marcus Simon, who represents Northern Virginia’s 13th House District, would solve an issue that was brought to light in 2024 during court hearings on a petition seeking the release of records by the Spotsylvania School Board.
Simon is the chief patron of House Bill 159, which specifies that “service of process or a summons for a hearing shall not be required” when a citizen files a petition seeking the enforcement of their rights under the Virginia Freedom of Information Act (VFOIA).
The bill also requires 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 the bill.
The legislation would solve a discrepancy between the VFOIA and the procedural manual for the state’s General District Court judges.
In October of 2024, attorneys with the law firm McGuire Woods, representing Spotsylvania School Board members Lisa Phelps and April Gillespie and superintendent Clint Mitchell, argued successfully before Judge Jane Reynolds 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.
The process the attorneys argued Marcus should have followed is outlined in 2023 Virginia Judicial District Court Benchbook, which states: “Providing a copy of a petition before filing is not a substitute for service of process after filing.”
But in later filings, Marcus pointed out that 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.
“That language is intentional,” Megan Rhyne, executive director of the Virginia Coalition for Open Government, told the Advance in 2024. “These procedures are not put in place to be procedural booby traps for citizens who are trying to enforce their rights.”
That language has been in Virginia Code since 2011, but the 2023 edition of the Benchbook “appears utterly to misstate [Virginia Code’s] notice (not ‘service’) requirements,” Marcus wrote in court filings.
Reynolds was on the committee that authored the most recent edition of the Benchbook.
The General Assembly’s Freedom of Information Advisory Council considered this issue at a meeting in December of 2024.
There was not a quorum of members present at the meeting, so the council was not able to take any action, but Simon, who was Chair at the time, said that the remedy for the discrepancy between VFOIA and the Benchbook would be to introduce legislation that makes interpretation of the Act “unmistakably clear”—which HB159 seeks to do.
The legislation is on the agenda for Tuesday’s meeting of the House General Laws Committee. It will first come before the subcommittee on Procurement and Open Laws.
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Let's go Spotsy -- this is a critical step toward closure for the terrible mis-management of the Riverbend Swim Program. It may be too late to fix what was broken. That's unfortunate. But we can "eliminate the negative" by using it to "accentuate the positive", right? (And don't mess with Mr. In-Between!) Be sure to reach out to Delegate Simon's office to support HB 159! The number is 804.698.1013. Email is DelMSimon@house.virginia.gov. Let's. Dang. Go!
In other local legislation, Virginia residents, especially those who have children in public schools, need to be aware of HB 36. Plus so surprising that a Democrat Del. Joshua Cole in sponsoring HB36 would want to raise Standards of Quality class sizes for 6th grade music ensemble classes just because Stafford Co can't find enough music teachers. Virginia Ed Assn and affiliates have been notified. But just because a county is having a hard time recruiting/retaining teachers is no reason to raise the class size from 35 to 45 students. One student makes a difference. Teachers, public school employees and parents fought hard to get the SOQ to 35. Instruction is not as effective, efficient and frankly enjoyable when the class size is unmanageable at 45. You'll drive children out of even wanting to take/stay in music with this large class size. Is that the strategy? Don't go backwards. Maintain the SOQ.
HB72 is another doozy on taxing the vacant land (commercial and large residential lots) in Fredericksburg 22401 at a higher rate. So far the Fredericksburg Neighborhoods Coalition can't find any evidence that residents have been notified and are begging for this legislation.
Residents need to email the committee members to express concern. You can find their names by googling the 'HB number, Virginia General Assembly 2026'.