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A BILL to amend and reenact §§
2.2-3714
and
2.2-3715
of the Code of Virginia, relating to Virginia Freedom of Information Act; officers, employees, or members of a public body; alleged willful and knowing violations; mitigating factors to be considered.
Be it enacted by the General Assembly of Virginia:
1. That §§
2.2-3714
and
2.2-3715
of the Code of Virginia are amended and reenacted as follows:
§
2.2-3714
. Violations and penalties.
A. In a proceeding commenced against any officer, employee, or member of a public body
in his individual capacity
under §
2.2-3713
for a violation of §
2.2-3704
,
2.2-3705.1
through
2.2-3705.7
,
2.2-3706
,
2.2-3706.1
,
2.2-3707
,
2.2-3708.2
,
2.2-3708.3
,
2.2-3710
,
2.2-3711
, or
2.2-3712
, the court, if it finds that a violation was willfully and knowingly made, shall impose upon such officer, employee, or member in his individual capacity, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $500 nor more than $2,000, which amount shall be paid into the Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $2,000 nor more than $5,000.
B. In addition to any penalties imposed pursuant to subsection A, if the court finds that any officer, employee, or member of a public body failed to provide public records to a requester in accordance with the provisions of this chapter because such officer, employee, or member altered or destroyed the requested public records with the intent to avoid the provisions of this chapter with respect to such request prior to the expiration of the applicable record retention period set by the retention regulations promulgated pursuant to the Virginia Public Records Act (§
42.1-76
et seq.) by the State Library Board, the court may impose upon such officer, employee, or member in his individual capacity, whether or not a writ of mandamus or injunctive relief is awarded, a civil penalty of up to $100 per record altered or destroyed, which amount shall be paid into the Literary Fund.
C. In addition to any penalties imposed pursuant to subsections A and B, if the court finds that a public body voted to certify a closed meeting in accordance with subsection D of §
2.2-3712
and such certification was not in accordance with the requirements of clause (i) or (ii) of subsection D of §
2.2-3712
, the court may impose on the public body, whether or not a writ of mandamus or injunctive relief is awarded, a civil penalty of up to $1,000, which amount shall be paid into the Literary Fund. In determining whether a civil penalty is appropriate, the court shall consider mitigating factors, including reliance of members of the public body on (i) opinions of the Attorney General, (ii) court cases substantially supporting the rationale of the public body,
and
(iii) published opinions of the Virginia Freedom of Information Advisory Council
, and (iv) advice of counsel for the public body
.
§
2.2-3715
. Effect of good faith reliance upon advisory opinions from the Freedom of Information Advisory Council and certain legal advice and opinions on liability for willful and knowing violations.
Any
When determining whether an
officer,
an
employee, or
a
member of a public body
who is
alleged to have
has
committed a willful and knowing violation pursuant to §
2.2-3714
shall have the right to introduce at any proceeding a copy of a relevant advisory opinion issued pursuant to §
30-179
,
the court shall consider mitigating factors, including
good faith reliance on
(i) opinions of the Attorney General
;
(ii) court cases substantially supporting such officer
's
, employee
's
, or member's actions
;
(iii)
advisory opinions of the Virginia Freedom of Information Advisory Council
;
and (iv) advice of counsel for the public body
,
as evidence that
he
such officer, employee, or member
did not willfully and knowingly commit the violation
if the alleged violation resulted from his good faith reliance on the advisory opinion
.