Freedom of Information Act
Virginia Freedom of Information Act and other Applicable Statutes and Regulations
The Virginia Freedom of Information Act (FOIA), located § 2.2-3700 et. seq. of the Code of Virginia, ensures citizens of the Commonwealth and representatives of the media access to public records held by public bodies, public officials, and public employees.
A public record is any writing or recording -- regardless of whether it is a paper record, an electronic file, an audio or video recording, or any other format -- that is prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. All public records are presumed to be open, and may only be withheld if a specific, statutory exemption applies. FOIA gives you a right to inspect or receive a copy of records; it does not apply to a situation where you are asking general questions.
The policy of FOIA states that the purpose of FOIA is to promote an increased awareness by all persons of governmental activities. In furthering this policy, FOIA requires that the law be interpreted liberally, in favor of access, and that any exemption allowing public records to be withheld must be interpreted narrowly. However, there are other federal statutes (such as the Health Insurance Portability and Accountability Act (HIPAA)) and federal regulations (such as Title 42 of the Code of Federal Regulations, Part 431) that prohibit from releasing certain protected health information to individuals other than the person the information is about.
Individuals must provide written permission from the person the information is about to the agency in order for to release the requested information. Please refer to the Authorizations section. Also, please refer to the following Public Records Routinely Withheld section.
To request information and records from the Department of Medical Assistance Services, direct your request to FOIA Coordinator, attention Nancy Malczewski. To request copies of Medicaid records, we prefer your request be in writing to ensure the accuracy of your inquiry so there is no misunderstanding over a verbal request, and mailed to 600 East Broad Street, Suite 1300, Richmond, VA 23219; e-mailed to FOIA@dmas.virginia.gov; or faxed to 804-371-4981 (this fax number is not being used during COVID-19 as State Offices are unoccupied). You may phone 804-371-6391 for general information.
If you make a FOIA request of the Department of Medical Assistance Services (DMAS), your name and contact information (business name, address, and phone number) will be placed in a database that constitutes a public record. As a consequence of being in the FOIA database, if someone asks for the names of persons who have made FOIA requests, your name and contact information will be given out. The only exception, is prohibited by federal law from releasing information about Medicaid recipients without the specific permission of the Medicaid recipient.
In addition, if you have questions about Virginia's FOIA statute, you may contact the FOIA Advisory Council at email@example.com or by phone at 804-225-3056 or toll free at 1866-448-4100. Please do not direct your Medicaid-specific questions or problems to the FOIA Advisory Council.
- You have the right to request to inspect or receive copies of public records, or both
- You have the right to request that any charges for the requested records be estimated in advance.
- If you believe that your FOIA rights have been violated, you may file a petition in district or circuit court to compel compliance with FOIA.
- You may request records by U.S. Mail, facsimile (fax), e-mail, in person, or over the phone. FOIA does not require that your request be in writing, nor do you need to specifically state that you are requesting records under FOIA.
- From a practical perspective, it may be helpful to both you and the person receiving your request to put your request in writing. This allows you to create a record of your request. It also gives a clear statement of what records are being requested so that there is no misunderstanding over a verbal request.
- Your request must identify the records being sought with “reasonable specificity.” This is a common-sense standard. It does not refer to or limit the volume or number of records being requested; instead, it requires that you be specific so staff can identify and locate the records being requested.
- Your request must ask for existing records or documents. FOIA gives you a right to inspect or copy public records; it does not apply to a situation where you are asking general questions about the work [of the Department], nor does it require [the Department] to create a record that does not exist nor change the format of an existing record to conform to your request.
- You may choose to receive electronic records in any format used by Department of Medical Assistance Services in the regular course of business.
- For example, if you are requesting records maintained in an Excel database, depending upon its size, you may elect to receive those records electronically, via e-mail or on a computer disk, or to receive a printed copy of those records.
- If we have questions about your request, please cooperate with staff's efforts to clarify the type of records that you are seeking, or to attempt to reach a reasonable agreement about a response to a large request. Making a FOIA request is not an adversarial process, but we may need to discuss your request with you to ensure that we understand what records you are seeking. To the extent permitted by federal statute and regulation, we wish to locate and provide the information you seek in the most effective and efficient manner possible. At the same time, we do not wish to provide the wrong information or records since we are permitted by the Code of Virginia § 2.2-3704 to charge requesters in accessing, duplicating, supplying, or searching for the requested records.
- The Department of Medical Assistance Services must respond to requests from citizens of the Commonwealth within five working days of receipt. “Day One” is considered the day after your request is received during normal business hours. The five-day period does not include weekends or holidays. Persons from outside of the Commonwealth may make information or record requests that are not burdensome but it may require more time or may be denied.
- No justification is needed to request information or records under FOIA. FOIA allows the Department of Medical Assistance Services to ask you to provide your name and legal address or other identifying information. However, if your request is as a result from an accident (or lawsuit), be advised reimbursement is to be made to DMAS from your settlement funds. The DMAS Third Party Liability (TPL) Unit will determine the lien amount; contact TPLunit@dmas.virginia.gov.
- FOIA requires that the Department of Medical Assistance Services make one of the following responses to requests from citizens of the Commonwealth within the five-day time period:
- Provide the records requested in their entirety.
- Withhold all of the records requested, because all of the records are subject to a specific statutory exemption. If all of the records are being withheld, DMAS must send a response in writing identifying the volume and subject matter of the records being withheld stating the specific section of the Code of Virginia that allows the records to be withheld.
- Provide some of the records but withhold other records requested. DMAS cannot withhold an entire record if only a portion of it is subject to an exemption. In that instance, DMAS may redact the portion of the record that may be withheld, and must provide the remainder of the record. DMAS must provide a written response stating the specific section of the Code of Virginia that allows portions of the requested records being withheld.
- If the Department of Medical Assistance Services cannot provide the requested records within the five-day period, DMAS must state this in writing. This will allow DMAS seven additional working days, giving DMAS a total of 12 working days, to respond to the request.
- If you make a request for a very large number of records, and DMAS cannot provide the records within 12 days without disrupting DMAS organizational responsibilities, DMAS may petition the court for additional time to respond to your request. However, the FOIA statute requires that DMAS make a reasonable effort to reach an agreement with the requester concerning the production or the records before DMAS goes to court to ask for more time. Individuals requesting information who are not citizens of the Commonwealth may also expect these same responses in slightly longer timeframes if the request is not burdensome to the agency.
- “A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen” as set forth in Code of Virginia 2.23704.F.
- Medicaid recipients are not charged for copies of their own claims history records. Other requesting individuals (such as, but not limited to, attorneys, record retrieval companies) will be asked to pay for the records requested from the Department of Medical Assistance Services (see Authorizations section). FOIA allows DMAS to charge for the actual costs of responding to FOIA requests. This includes items such as staff time spent searching for the requested records, copying costs, or any other costs directly related to supplying the requested records.
- You may request that DMAS provide a cost estimate prior to supplying the records requested. This will allow you the opportunity to modify your request in an attempt to lower the estimated costs if necessary.
- If it is estimated that it will cost more than $200 to respond to your request, you will be notified in writing. You must agree to pay the actual charges. Effective 7/1/2008, it is required you to pay a deposit, not to exceed the amount of the estimate, before DMAS will proceed with your request. The five days that we have to respond to Commonwealth citizens' requests does not include the time between being asked for a deposit and your response.
- If you owe DMAS money from a previous FOIA request that has remained unpaid for more than 30 days, the Department of Medical Assistance Services requires payment of the past-due bill before it will respond to your new FOIA request.
- DMAS only has the ability to receive payment through (personal, business, cashier’s or certified) checks or Money Order made payable to DMAS, Attn: FOIA Coordinator in a non-window envelope.
Health Insurance Portability and Accountability Act (HIPAA)
Public Records Routinely Withheld
The Department is specifically required by federal Medicaid regulations, 42 CFR § 431.300 et.seq., and 45 CFR § 164.500 et. seq.to withhold: identifying names and addresses; medical services provided; social and economic conditions or circumstances; agency evaluation of personal information; medical data, including diagnosis and past history of disease or disability; any information received for verifying income eligibility and the amount of medical assistance payments, and; any information received in connection with the identification of legally liable third party resources. The Department is also required by HIPAA to protect from disclosure all Protected Health Information.
Commonly used exemptions:
The Code of Virginia allows any public body to withhold certain records from public disclosure. [The Department] commonly withholds records subject to the following exemptions:
- Personnel records (§ 2.2-3705.1 (1) of the Code of Virginia)
- Records subject to attorney-client privilege (§ 2.2-3705.1 (2)) or attorney work product (§ 2.2-3705.1 (3))
- Vendor proprietary information (§ 2.2-3705.1 (6))
- Records relating to the negotiation and award of a contract, prior to a contract being awarded (§ 2.2-3705.1 (12))
- Records of active investigations being conducted Code of Virginia § 2.2-3705.3(4).
- Account numbers or routing information for any credit card, debit card, or other account with a financial institution of any person or public body (§ 2.2-3705.1.13.).
Health Insurance Portability and Accountability Act (HIPAA)
Other Compliance Issues
Mental Health Parity