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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-16
August
12, 2016
Kevin
E. Martingayle, Esq.
Bischoff Martingayle
Virginia Beach, Virginia
The
staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing
staff advisory opinion is based solely upon the information
presented in your email message and letter dated June
28, 2016.
Dear
Mr. Martingayle:
You have asked four questions regarding a closed meeting
of a board of visitors (the board) of a public institution
of higher education (the university). As background,
you included a copy of a closed meeting motion and
certification that read as follows:
To
Go Into Closed Session
I move that the Board of Visitors go into closed
session to discuss the appointment, reappointment,
performance, assignment, and compensation of specific
University faculty; and to consult with legal counsel
regarding a litigation report and specific legal
and regulatory matters requiring the provision of
legal advice where discussion in an open meeting
would adversely affect the negotiating posture of
the University. The relevant exemptions are Sections
2.2-3711(A)(1) and (7) of the Code of Virginia.
After
Leaving Closed Session (read by the same member
of the committee):
I move that we vote on and record our certification
that, to the best of each member's knowledge, only
public business matters lawfully exempted from open
meeting requirements and which were identified in
the motion authorizing the closed session, were
heard, discussed or considered in closed session.
As
additional background, you stated that eight days
prior to this meeting board "members received
documents that outlined a newly-established grant-making
process, guiding spending principles, and a list of
grant requests pertaining to a newly-established fund
that consisted of very significant reserves and earnings
discovered to exist within the university." You
also stated that correspondence prior to the meeting
indicated that the fund and plans for spending it
were topics to be discussed at the closed meeting.
You related that the only personnel discussed during
the closed meeting were two former employees "cited
for having done a good job of accumulating and managing
such a large sum of funds over time." You stated
that faculty and administrator appointments were made
prior to the closed meeting and did not require a
board vote. You also wrote that there was "no
discussion that related to pending, threatened or
possible litigation regarding the fund." Instead,
you stated that the closed meeting "focused on
principles for spending the money that now comprises
the fund." You also indicated that during the
closed meeting "members were asked to deny granting
funds to proposals that would support university operations
and to elevate those [proposals] that would enhance
[the university's] reputation." You also stated
that concerns were conveyed in the closed meeting
regarding publicity about the fund and that "it
was requested that members refrain from discussing
the fund with legislators and the media." Regarding
the certification of the closed meeting, you indicated
that "aye" votes were solicited and no "nay"
votes were requested. However, at least one board
member afterwards stated that the minutes should reflect
that the member did not vote on the certification
due to questions and concerns regarding whether the
discussion strayed beyond what was permitted under
the Virginia Freedom of Information Act (FOIA). Your
specific questions are set out below as they were
enumerated in your letter, with additional facts as
appropriate.
The guiding principles of FOIA set forth in subsection
B of § 2.2-3700 are that the "affairs of
government are not intended to be conducted in an
atmosphere of secrecy since at all times the public
is to be the beneficiary of any action taken at any
level of government" and that "[a]ll public
records and meetings shall be presumed open, unless
an exemption is properly invoked." Regarding
exemptions, the same subsection states that "[a]ny
exemption from public access to records or meetings
shall be narrowly construed and no record shall be
withheld or meeting closed to the public unless specifically
made exempt pursuant to this chapter or other specific
provision of law." Furthermore, the policy provides
that FOIA "shall not be construed to discourage
the free discussion by government officials or employees
of public matters with the citizens of the Commonwealth."
The definition of "public body" in §
2.2-3701 explicitly includes "boards of visitors
of public institutions of higher education,"
so there is no doubt that the board is a public body
subject to FOIA.
The requirements to convene a closed meeting are set
forth in subsection A of § 2.2-3712, which reads
in full as follows:
A.
No closed meeting shall be held unless the public
body proposing to convene such meeting has taken
an affirmative recorded vote in an open meeting
approving a motion that (i) identifies the subject
matter, (ii) states the purpose of the meeting and
(iii) makes specific reference to the applicable
exemption from open meeting requirements provided
in § 2.2-3707
or subsection A of §
2.2-3711. The matters contained in such motion
shall be set forth in detail in the minutes of the
open meeting. A general reference to the provisions
of this chapter, the authorized exemptions from
open meeting requirements, or the subject matter
of the closed meeting shall not be sufficient to
satisfy the requirements for holding a closed meeting.
A
motion to convene a closed meeting must contain all
three elements (subject, purpose, and citation) in
order to comply with FOIA; a motion that lacks any
of these elements is insufficient under the law.1 We
have previously observed that there is often confusion
in differentiating between the subject and the purpose
of a closed meeting. Conceptually, it may be helpful
to think of the subject as what the meeting is about,
while the purpose is why the meeting is to be held.
This office has previously opined that when identifying
the subject of a closed meeting, the subject need
not be so specific as to defeat the reason for going
into closed session, but should at least provide the
public with general information as to object of the
discussion.2 Observing that the prefatory language
of subsection A of § 2.2-3711 states that "[p]ublic
bodies may hold closed meetings only for the following
purposes," we also opined that quoting or paraphrasing
from one of the exemptions in that subsection satisfies
the requirement to state the purpose of the meeting,
but it does not suffice to identify the subject matter.
We concluded this analysis by noting that by quoting
or paraphrasing from one of the statutory exemptions,
and providing a proper citation to the exemption,
only two of the three required elements of the motion
to convene a closed meeting are satisfied. The public
body must still identify the subject in order to make
a proper motion to convene a closed meeting.3 Determining
whether any particular motion meets the statutory
requirements depends on the facts of each situation
and requires a case-by-case analysis.
Turning to the certification requirement, subsection
D of § 2.2-3712 sets forth the requirement to
reconvene immediately after a closed meeting and certify
the closed meeting as follows:
At
the conclusion of any closed meeting, the public
body holding such meeting shall immediately reconvene
in an open meeting and shall take a roll call or
other recorded vote to be included in the minutes
of that body, certifying that to the best of each
member's knowledge (i) only public business matters
lawfully exempted from open meeting requirements
under this chapter and (ii) only such public business
matters as were identified in the motion by which
the closed meeting was convened were heard, discussed
or considered in the meeting by the public body.
Any member of the public body who believes that
there was a departure from the requirements of clauses
(i) and (ii), shall so state prior to the vote,
indicating the substance of the departure that,
in his judgment, has taken place. The statement
shall be recorded in the minutes of the public body.
In
considering a situations where members left a closed
meeting without voting to certify it or making any
statement to be included in the minutes, but later
indicated they left in protest, we have previously
opined that members are advised to comply with the
procedural requirements set out in FOIA. By following
the statutory procedure quoted above, the substance
of the protest will be recorded in the minutes, documenting
the issue(s) of concern and possibly facilitating
subsequent discussion and resolution of any problems.4
Your first question asked whether the language of
the motion and certification quoted above is legally
sufficient to convene and certify a closed meeting
of the board and if not, what remedial action should
be taken by the board or individual members of the
board. As quoted above, the motion to convene appears
to address two different exemptions, and therefore
we will consider each separately. The first part of
the motion to convene the closed meeting reads as
follows: "to discuss the appointment, reappointment,
performance, assignment, and compensation of specific
University faculty." This portion of the motion
appears to correspond to the citation to the personnel
meetings exemption, subdivision A 1 of § 2.2-3711,
which allows a public body to convene a closed meeting
for the following purposes:
Discussion,
consideration, or interviews of prospective candidates
for employment; assignment, appointment, promotion,
performance, demotion, salaries, disciplining, or
resignation of specific public officers, appointees,
or employees of any public body; and evaluation
of performance of departments or schools of public
institutions of higher education where such evaluation
will necessarily involve discussion of the performance
of specific individuals.
The
language "appointment, reappointment, performance,
assignment, and compensation" used in this part
of the motion closely tracks the statutory language
quoted above concerning "assignment, appointment...performance...salaries."
Therefore this portion of the motion appears to state
the purpose of the closed meeting by paraphrasing
the statutory language. The subject identified in
the motion appears to be "specific University
faculty." As previously quoted, subsection A
of § 2.2-3712 provides that a "general reference
to the provisions of this chapter, the authorized
exemptions from open meeting requirements, or the
subject matter of the closed meeting shall not be
sufficient to satisfy the requirements for holding
a closed meeting." Dissecting the phrase "specific
University faculty," the exemption already requires
the discussion to be about "specific" individuals,
so the term "specific" by itself does not
add anything to identify the subject. However, "University
faculty" makes clear at least the category of
employees to be discussed - University faculty as
opposed to administrative, information technology,
maintenance, law enforcement, or some other category
of employees. While "University faculty"
could identify the subject individuals to be discussed
with greater precision (i.e., by providing additional
information such as whether they are tenured or non-tenured,
by identifying their department(s), or in any number
of other ways), the language is more than a "general
reference to the provisions of this chapter, the authorized
exemptions from open meeting requirements, or the
subject matter of the closed meeting." Therefore
it appears that the identification of the subject
is more than a general reference so we cannot say
it is insufficient, however, we recommend identifying
the subject matter with greater specificity as described
above. While we recognize there are times when a public
body needs to be vague, in this instance it appears
that the university could have been more specific
in identifying the faculty in question without jeopardizing
the reason for holding the closed meeting. For example,
the university could have identified the subject as
"faculty in the math department" or "faculty
candidates for tenure" without revealing who
was being discussed.
The second part of the motion reads as follows: "to
consult with legal counsel regarding a litigation
report and specific legal and regulatory matters requiring
the provision of legal advice where discussion in
an open meeting would adversely affect the negotiating
posture of the University." This part therefore
corresponds to the citation to subdivision A 7 of
§ 2.2-3711, the legal matters exemption, which
allows a closed meeting to be held for the following
purposes:
Consultation
with legal counsel and briefings by staff members
or consultants pertaining to actual or probable
litigation, where such consultation or briefing
in open meeting would adversely affect the negotiating
or litigating posture of the public body; and consultation
with legal counsel employed or retained by a public
body regarding specific legal matters requiring
the provision of legal advice by such counsel. For
the purposes of this subdivision, "probable
litigation" means litigation that has been
specifically threatened or on which the public body
or its legal counsel has a reasonable basis to believe
will be commenced by or against a known party. Nothing
in this subdivision shall be construed to permit
the closure of a meeting merely because an attorney
representing the public body is in attendance or
is consulted on a matter.
We
have previously interpreted this exemption to apply
to two different situations: (1) consultation pertaining
to actual or probable litigation, and (2) consultation
regarding specific legal matters.5 The meaning of "actual
litigation" is self-evident, and "probable
litigation" is defined as quoted above. "Specific
legal matters" is not defined, but in reviewing
court decisions and prior opinions of the Attorney
General, we observed that the legal matters exemption
would not allow a closed meeting to be held to discuss
general policy or other matters that may eventually
have legal consequences.6
When analyzing the motion that was made, it appears
that it mixes language from both clauses of the cited
exemption. Parsing the language of the quoted motion,
the phrasing "to consult with legal counsel ...
where discussion in an open meeting would adversely
affect the negotiating posture of the University"
tracks the statutory language from the first clause
of the exemption concerning actual or probable litigation:
"Consultation with legal counsel ... where such
consultation ... in open meeting would adversely affect
the negotiating ... posture of the public body."
However, note that the language of the motion "to
consult with legal counsel regarding ... specific
legal ... matters requiring the provision of legal
advice" closely tracks the second clause of the
exemption regarding specific legal matters: "consultation
with legal counsel employed or retained by a public
body regarding specific legal matters requiring the
provision of legal advice by such counsel." As
the language of the motion uses phrasing from both
clauses of the exemption, it appears to indicate the
purpose of the discussion will involve both actual
or probable litigation and consultation with legal
counsel on specific legal matters.
The remaining portion of the motion referring to "a
litigation report and specific legal and regulatory
matters" appears to be the attempt to identify
the subject matter of the closed meeting. Further
analyzing the language used, the term "litigation
report" adds no substantive context to the basic
concept of discussing actual or probable litigation,
it only adds the word "report." Even with
the additional word "report," however, it
is unclear whether the "litigation report"
is about a current case, a case that has been resolved,
a case that may be filed in the future, an aggregate
overview of cases, a particular type of case or cases,
a case against the university, a case brought by the
university, or some other thing. A report can be about
any subject, and therefore adding the word "report"
does nothing to further identify what is the subject
of the closed meeting. There are many ways to identify
litigation matters without defeating the reason for
going into closed meeting. For example, the style
of the case (i.e., University v. John Doe)
might be used for past or current litigation matters
already filed on a public court docket, or one might
say "probable litigation stemming from a contract
dispute" or "litigation matters regarding
an insurance claim" or any number of other possibilities.
However, simply stating "a litigation report"
as the subject is merely a general reference to litigation,
and is insufficient in identifying the subject matter
to be discussed.
Similarly, referring to "legal...matters"
does nothing but to reiterate that same language from
the exemption itself. Referring to "regulatory"
matters is something beyond the statutory language,
as "regulatory matters" would be a subset
of "legal matters," but only in the most
general of terms, as there is no indication of what
type of regulation may be at issue, whether it is
an enforcement matter, a proposed regulatory change,
some action that needs to be taken to avoid a regulatory
violation, litigation over a regulation, or some other
"regulatory matter." Note that subsection
A of § 23-9.2:3 provides that all boards of visitors
have the power to establish regulations in various
subject areas including the acceptance and assistance
of students, the conduct of students while attending
the institution, the rescission or restriction of
financial aid, the suspension and dismissal of students,
the employment and dismissal of professors, teachers,
instructors, and all other employees, and parking
and traffic regulations, as well as establishing guidelines
and programs in other subject areas. Boards of visitors
may also establish regulations governing the disposition
of unclaimed property as set forth in § 23-4.2.
In addition to these general regulatory powers granted
to all boards of visitors, the various boards of visitors
may have further regulatory authority that is specific
to each institution. For example, § 23-44 provides
that the board of visitors of the College of William
and Mary "shall make all needful rules and regulations"
for the colleges; § 23-49.17 uses the same language
to describe the regulatory power of the board of Old
Dominion University; §23-50.10 states that the
board of Virginia Commonwealth University "shall
make all rules and regulations it deems advisable;"
and § 23-76 provides that the board of the University
of Virginia "regulate the government and discipline
of the students, and the renting of the rooms and
dormitories, and, generally, in respect to the government
and management of the University, make such regulations
as they may deem expedient, not being contrary to
law." While these examples are not exhaustive,
they clearly demonstrate that the General Assembly
has granted broad regulatory powers to the boards
of visitors of the public institutions of higher education
in Virginia. Given the breadth of topic areas and
nearly limitless number of factual scenarios that
could be encompassed by the phrase "regulatory
matters," this phrase cannot be read to be more
than a "general reference to the provisions of
this chapter, the authorized exemptions from open
meeting requirements, or the subject matter of the
closed meeting." In summary, it appears that
the identification of the subject here as "a
litigation report and specific legal and regulatory
matters" is at best a "general reference
to ... the subject matter of the closed meeting."
Without further detail in identifying the subject
matter, this part of the motion appears to be insufficient.
Next addressing the certification of the closed meeting,
the heart of the statutory requirement under subsection
D of § 2.2-3712 is the requirement that the public
body certify "that to the best of each member's
knowledge (i) only public business matters lawfully
exempted from open meeting requirements under this
chapter and (ii) only such public business matters
as were identified in the motion by which the closed
meeting was convened were heard, discussed or considered
in the meeting by the public body." The certification
language you provided as factual background was as
follows: "I move that we vote on and record our
certification that, to the best of each member's knowledge,
only public business matters lawfully exempted from
open meeting requirements and which were identified
in the motion authorizing the closed session, were
heard, discussed or considered in closed session."
Although not a direct quote, this motion closely paraphrases
the statutory language and contains both of the required
clauses (i) and (ii). Therefore the language used
in this motion comports with the language of the statute
and is sufficient as a motion to certify the closed
meeting. However, as will be discussed below, you
have raised other issues that question the substance
of the discussion held in the closed meeting. If the
substance of the discussion strayed from what was
purported to be discussed and identified in the motion
to convene the closed meeting, then the certification
would be improper even though the motion to certify
used language that comported with the statutory requirements.
You also asked what remedial action should be taken
by the board, or by individual members of the board,
should either the motion or the certification discussed
above be insufficient to meet the requirements of
FOIA. In terms of the certification, subsection D
of § 2.2-3712 provides that a member who feels
there has been a deviation from FOIA's closed meeting
limitations shall make a statement to that effect
prior to voting on the certification. Otherwise, FOIA
does not set out a remedial course for public bodies
to follow once a violation has occurred. The statutory
remedy for a FOIA violation is a petition for mandamus
or injunction supported by an affidavit showing good
cause as set forth in § 2.2-3713. Other than
a board member or some other person bringing such
a petition against the board, FOIA does not set forth
any statutory remedy to cure a defective motion or
certification after it has occurred. As a practical
matter, a public body or member thereof may wish to
publicly acknowledge that an error was made and a
violation occurred, and may seek to take such remedial
action as seems appropriate depending on the violation,
but FOIA itself does not provide a mechanism for doing
so.
Your second question posits that "the primary
purpose of discussing the fund during the closed meeting
was neither to discuss any personnel matters nor to
request/receive legal advice." Given that assumption,
you ask whether the board violated FOIA and what remedial
action might be taken. Subsection A of § 2.2-3712
provides that no closed meeting shall be held unless
the public body votes to approve a proper motion to
convene the closed meeting, as quoted and described
above. Subsection C of the same section provides that
a "public body holding a closed meeting shall
restrict its discussion during the closed meeting
only to those matters specifically exempted from the
provisions of this chapter and identified in the motion
required by subsection A." Following these provisions,
if a public body held a closed meeting to discuss
topics other than those described in the motion, and
in fact did discuss topics other than those identified
in the motion, that closed meeting would be in violation
of FOIA. The answer to your question is therefore
"yes," it would be a violation to hold a
closed meeting to discuss a fund when the motion to
convene the closed meeting was for the purposes of
discussion of personnel, legal matters and litigation.
Although you did not ask, I would also note that there
is no exemption in FOIA for the purpose of discussing
general budget matters in closed meetings, although
there are exemptions that allow closed meetings to
be convened to discuss certain topics that may be
related to or may affect budgetary matters (for example,
certain contract negotiations and procurement, economic
development, real estate acquisition and disposition,
etc.).
Regarding the second part of your second question,
as stated above, FOIA does not provide for a remedial
action to be taken by the public body once a violation
has occurred. However, as stated above, FOIA does
require a vote to certify the closed meeting under
subsection D of § 2.2-3712. That subsection sets
out the proper course of action for an individual
member to take if a closed meeting has been held in
violation of FOIA: "Any member of the public
body who believes that there was a departure from
the requirements of clauses (i) and (ii), shall so
state prior to the vote, indicating the substance
of the departure that, in his judgment, has taken
place. The statement shall be recorded in the minutes
of the public body." Therefore an individual
board member who feels that a violation has occurred
shall make a statement to be included in the minutes
as described. Note that subsection D requires a public
body to immediately reconvene in public after a closed
meeting and take a "roll call or other recorded
vote" for certification. While not explicitly
stated in the Code, it would logically follow that
the member who feels a violation has occurred would
also vote against the motion to certify the closed
meeting, in addition to making a statement before
the vote is taken.
Your third question asked what is the procedure for
determining and recording the vote of the members,
and what remedial action should be taken to correct
any mistakes. As quoted above, subsection D of §
2.2-3712 requires a "roll call or other recorded
vote" when certifying a closed meeting. No statutory
definition is provided to say what constitutes a "roll
call" or "other recorded" vote. Turning
to the ordinary usage in the absence of a statutory
definition, the term "roll call" means "reading
aloud of a list of names of people, as in a classroom
or military post, to determine who is absent."7
In the context of voting at an open meeting, a "roll
call vote" would mean that the vote is taken
by calling each member by name and recording that
member's vote. An "other recorded vote"
must therefore be something else, but FOIA does not
specify what. FOIA generally does not address parliamentary
procedure or limit what rules of procedure or by-laws
a public body may adopt. Lacking a specific statutory
definition of "other recorded vote," it
is helpful to consider some principles of statutory
construction such as the doctrine of ejusdem generis:
"when items with a specific meaning are listed
together in a statute, and are followed by words of
general import, the general words will not be construed
to include matters within their broadest scope but
only those matters of the same import as that of the
specific items listed."8 Following
this maxim, the scope of "other recorded vote"
would be limited to the same import as "roll
call." Another similar principle of statutory
construction is also helpful to consider:
The
maxim of noscitur a sociis provides that
the meaning of doubtful words in a statute may be
determined by reference to their association with
related words and phrases. When general words and
specific words are grouped together, the general
words are limited and qualified by the specific
words and will be construed to embrace only objects
similar in nature to those objects identified by
the specific words.9
This
maxim leads to the same conclusion that "other
recorded vote" should be construed as being similar
in nature to "roll call." Considering the
meetings provisions of FOIA as a whole, note that
subsection I of § 2.2-3707 already requires that
meeting minutes include, among other items, "a
record of any votes taken." Subsection A of §
2.2-3710 provides that that all votes must be "taken
at a meeting conducted in accordance with the provisions
of [FOIA]" and that "[n]o public body shall
vote by secret or written ballot, and unless expressly
provided by this chapter, no public body shall vote
by telephone or other electronic communication means."
It would appear then that in general, public bodies
may adopt their own procedural rules regarding how
to vote, so long as the meeting is conducted in accordance
with FOIA, the vote is recorded in the minutes, that
the vote is not conducted by secret or written ballot,
and that votes are only taken by electronic means
when expressly authorized.10 Given that general background
and the principles of statutory construction expressed
above, the phrase "other recorded vote"
following "roll call" in the context of
certifying a closed meeting would therefore appear
to require a type of vote which is recorded in the
minutes that allows the public to determine the vote
of each member present.
Further note that in addition to requiring that votes
be recorded, subsection I of § 2.2-3707 also
requires that meeting minutes include "the members
of the public body recorded as present and absent."
Assuming accurate minutes are kept, then, a simple
statement that the vote to certify was unanimously
in favor or against would suffice as a recorded vote
as it would be clear that all members present voted
the same way. On the other hand, if the vote was not
unanimous, a vote may be taken in some fashion other
than a roll call - such as by a show of hands, for
example - but should be recorded in the minutes in
a way that clearly identifies which members voted
for the motion and which members voted against, just
as a roll call vote would. If in doubt as to whether
a particular voting procedure would suffice, a public
body should simply vote by roll call.
Applying this interpretation to the facts as you presented
them, it would appear that the board in this instance
did not take a "roll call or other recorded vote"
to certify the meeting you described. Instead, you
indicated that the board solicited "aye"
votes only, did not ask for votes in the negative,
and did not record any votes in the negative. If the
vote was in fact unanimous agreement by all members
present, and the minutes reflected this fact as well
as the members present, then the vote described would
be sufficient. However, you added that at least one
member later told the board secretary that the minutes
should reflect that the member did not vote on the
certification because of concerns that the discussion
may have strayed beyond what was legally permitted.
While FOIA does not set out rules of parliamentary
procedure, it is my general understanding that under
most rules of procedure members of public bodies who
are present at a meeting when a vote is taken can
vote in the affirmative, in the negative, or they
may abstain from voting. Furthermore, a member's silence
is typically construed as tacit agreement (i.e., an
affirmative vote), and it is the duty of the member
to speak up if he or she dissents from the majority
or abstains from voting. The provisions of subsection
D of § 2.2-3712 requiring members to make a statement
to be recorded in the minutes prior to voting on certification
reflect these concepts and make them statutory requirements
when voting to certify a meeting. In the situation
you describe, it appears that the board may have misconstrued
a member's silence for tacit agreement, and the member
may have failed to correct that misunderstanding until
some later time. Such facts emphasize the importance
of complying with the statutory directive to state
any such concerns prior to voting and demonstrate
the value of taking a roll call vote when certifying
a closed meeting.
Regarding remedies, again, FOIA does not provide for
remedial action when mistakes are made in the voting
process. However, it is my understanding that various
parliamentary rules may allow for votes to be corrected
or even re-taken. While such rules are not addressed
in FOIA, any such corrective action, to be effective
as a vote of a public body, would still have to be
taken at a public meeting conducted in accordance
with FOIA and recorded in the minutes, as required
by subsection I of § 2.2-3707, subsection A of
§ 2.2-3710, and subsection D of § 2.2-3712,
all quoted above.
Your fourth question asked what action, if any, are
individual board members expected, allowed, and/or
legally obligated to take when they have questions
or concerns relating to FOIA open meeting violations
by the board on which they sit. You also asked with
whom a member may consult and seek guidance, whether
there are any mandatory reporting requirements, and
if so, to whom should violations be reported. As described
above, subsection D of § 2.2-3712 provides the
mechanism for a member to make a statement concerning
any deviations from the closed meeting requirements
prior to voting to certify the closed meeting. If
the member's questions or concerns are about some
other aspect of the meeting, FOIA does not specify
a course of action for members to take. Regarding
consultation and guidance, anyone with questions about
FOIA is welcome to contact this office, as part of
the FOIA Council's powers and duties includes providing
advisory opinions, guidelines, and other information
about FOIA.11 It is my understanding that all of the
public institutions of higher education are provided
with legal counsel through the Office of the Attorney
General, which would be another source of guidance
and consultation. Members might also choose to consult
with their own legal counsel, just as with any other
legal question. Regarding reporting requirements,
FOIA does not impose any mandatory reporting requirements
regarding questions, concerns or violations. As stated
previously, the statutory remedy for a FOIA violation
of any type is to bring a petition for mandamus or
injunction supported by an affidavit showing good
cause. It would be up to each member to decide whether
to file such a petition.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1See,
e.g., Freedom of Information Advisory Opinions
03 (2013), 02 (2010), 13 (2009), 04 (2008), and 06 (2007).
2Freedom of Information Advisory Opinion
13 (2009).
3Id.
4Freedom of Information Advisory Opinion
04 (2008).
5Freedom of
Information Advisory Opinion 01 (2007).
6Id.
7The American Heritage Dictionary 1069 (2d
College ed. 1982).
8Kappa Sigma Fraternity, Inc. v. Kappa
Sigma Fraternity, Inc., 266 Va. 455, 470, 587 S.E.2d
701, 710 (2003).
9Cuccinelli v. Rector and Visitors of
the University of Virginia, 283 Va. 420, 432, 722
S.E.2d 626, 633 (2012).
10See
§§ 2.2-3708 and 2.2-3708.1 regarding participation
via electronic communication.
11Subdivision
1 of § 30-179.
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