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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-26
February
27, 2026
Mr.
Ed Gitre
Blacksburg, Virginia
Request received via email
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 of September 3, 2024.
Dear
Mr. Gitre:
You have requested an advisory opinion relative to
the Virginia Freedom of Information Act (§ 2.2-3700
et seq. of the Code of Virginia) (FOIA) to clarify
open meeting requirements for institutions of higher
education in the Commonwealth. Specifically, you have
inquired whether either the Faculty Senate or the
Faculty Senate Cabinet, or both, at Virginia Polytechnic
Institute and State University (Virginia Tech) is
considered a public body and, therefore, subject to
FOIA.
Factual
Background
According to the background information provided,
you engaged in email correspondence with the Faculty
Senate President who asserted that the Faculty Senate
Cabinet meetings are not open meetings to the public.
Specifically, you were informed that Faculty Senate
Cabinet meetings are restricted to Faculty Senate
officers and invited guests only, resulting in your
exclusion from attendance. The Faculty Senate President
stated in a response email to you that "all Faculty
Senate meetings are open," but the upcoming meeting
of the Faculty Senate Cabinet was "a closed meeting
for what serves as the executive committee advising
the [Faculty] Senate officers." The Faculty Senate
President also stated that Virginia Tech's FOIA Officer
indicated to him that only Virginia Tech's Board of
Visitors (BOV) was subject to FOIA and that "the
Faculty Senate is not a public body as defined by
FOIA."
You followed up with an email to Virginia Tech's FOIA
Officer with your inquiry of whether the Faculty Senate
or any subunit of the Faculty Senate, in particular
the Faculty Senate Cabinet, is a public body subject
to FOIA. In response, Virginia Tech's FOIA Officer,
after referencing consultation with Virginia Tech's
Legal Counsel, maintained that only Virginia Tech's
BOV constitutes a public body subject to FOIA. You
also provided this office with an email from the Virginia
Tech Associate Vice Provost for Faculty Affairs that
confirmed that the Faculty Senate's budget allocation
"comes from Educational and General (E&G)
Funds" (i.e., state funds).
Analysis
The policy of FOIA set forth in subsection B of §
2.2-3700 of the Code of Virginia is to ensure "the
people of the Commonwealth ready access to public
records in the custody of a public body or its officers
and employees, and free entry to meetings of public
bodies wherein the business of the people is being
conducted."
FOIA policy as stated in subsection B of § 2.2-3700
of the Code of Virginia also provides 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. Unless
a public body or its officers or employees specifically
elect to exercise an exemption provided by this
chapter or any other statute, every meeting shall
be open to the public and all public records shall
be available for inspection and copying upon request.
All public records and meetings shall be presumed
open, unless an exemption is properly invoked.
The provisions of this chapter shall be liberally
construed to promote an increased awareness by all
persons of governmental activities and afford every
opportunity to citizens to witness the operations
of government. Any 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.
This chapter shall not be construed to discourage
the free discussion by government officials or employees
of public matters with the citizens of the Commonwealth.
A critical step in understanding whether FOIA applies
to a specific entity is making a determination as
to whether such entity meets the definition of a "public
body" under FOIA. Pursuant to § 2.2-3701
of the Code of Virginia, a "public body"
is defined, in relevant part, as:
any legislative body, authority, board, bureau,
commission, district, or agency of the Commonwealth
or of any political subdivision of the Commonwealth,
including counties, cities, and towns, municipal
councils, governing bodies of counties, school boards,
and planning commissions; governing boards of public
institutions of higher education; and other organizations,
corporations, or agencies in the Commonwealth supported
wholly or principally by public funds . . . and
(ii) any committee, subcommittee, or other entity
however designated of the public body created to
perform delegated functions of the public body or
to advise the public body. It shall not exclude
any such committee, subcommittee, or entity because
it has private sector or citizen members.
Applying the definition of "public body"
set forth in § 2.2-3701 of the Code of Virginia
to the facts presented herein, it appears that the
Faculty Senate or the Faculty Senate Cabinet may fall
within the provisions of the definition that includes
a "committee, subcommittee, or other entity however
designated of the public body created to perform delegated
functions of the public body or to advise the public
body" or an organization "supported wholly
or principally by public funds." If either one
of these provisions are met, then the Faculty Senate
or the Faculty Senate Cabinet would likely be considered
a public body under FOIA and, therefore, subject to
FOIA for open public records and meetings.
Prior opinions from both the Office of the Attorney
General and the FOIA Council have determined that
student governments at public institutions of higher
education constitute public bodies when supported
wholly or principally by public funds, including student
fees.1 In Advisory Opinion 23 (2001), this office referenced
an opinion of the Office of the Attorney General stating
that a university's student senate was a public body
under FOIA because the "student senate in that
case controlled a budget generated from student fees,
allocated funds to various other student organizations,
and was responsible for the general management of
student government."2
In
Advisory Opinion 18 (2003), this office considered
"the application of [FOIA] to the student government
organization of a state university, and whether a
university is the custodian of records of the student
government organization."3 Ultimately, this office
concluded that "[b]ecause the student senate
appears to be a separate public body, the University
is not technically the custodian of the student senate
records, and thus not required by FOIA to produce
the requested records."4 However, "FOIA would
require the student senate to respond accordingly
and a failure to do so would constitute a violation
of the law."5
Virginia
Tech's governance structure may affect whether the
Faculty Senate meets the statutory definition of a
"public body" under FOIA. This office's
examination of Virginia Tech's Governance Structure
Flowchart finds that it delineates a governance structure
for Virginia Tech that puts Virginia Tech's BOV as
the central authority possessing overall governing
authority of the university and, therefore, the BOV
is considered a "public body" in the traditional
sense of the definition.6 Virginia Tech's governance
structure consists of 13 committees, 10 commissions,
five senates, the University Council and University
Council Cabinet, the President, and the BOV.7 There
are also the Department Heads Council, the Council
of College Deans, and the Office of the Vice President
for Policy and Governance (OVPPG) that "are not
part of the legislative (i.e., policy approval) process
and are only responsible for consulting the legislative
bodies at or below the university council level on
policy considerations, or, in the case of the [OVPPG's]
office, facilitating the governance infrastructure."8
While
Virginia Tech's BOV has established its own standing
committees, the creation and delegation pathway for
other university bodies, including the Faculty Senate,
appears to flow through the President of Virginia
Tech, who as the chief executive officer, as such
term is defined in § 23.1-100 of the Code of
Virginia, is tasked with administration of the university
under the direction of the BOV and has been "delegated
final authority on some matters by [the] BOV."9
The University Council advises the President of Virginia
Tech, not the BOV. The University Council Cabinet
provides a "small-scale discussion forum responsible
for setting and administering council business and
ensuring resolutions are coming from the correct commission
based on the commission's charge."10 Under the
auspices of the University Council, there are senates
that serve as "representative bodies for the
constituencies of the campus community," commissions
that consist of "policy-recommending small groups
that focus on policies related to their associated
areas of expertise," and committees of "standing
or appointed small groups that focus on matters of
university wide interest."11 These various organizations
and entities serve as representative bodies for Virginia
Tech students, faculty, and employees.
The definition of a "public body" in §
2.2-3701 of the Code of Virginia provides that a committee
or subcommittee created to perform delegated functions
or advise the full public body is considered a public
body in its own right for purposes of FOIA. However,
Virginia Tech's governance structure does not demonstrate
that Virginia Tech's BOV created for or delegated
any type of function to the Faculty Senate to perform
or that the Faculty Senate advises the BOV. In this
instance, the Faculty Senate appears to advise the
University Council, and the University Council then
advises the President. Given this background, the
Faculty Senate would not be considered a public body
based solely upon its place and role within the adopted
governance structure of Virginia Tech because it is
not a "committee, subcommittee or other entity
however designated of [a] public body created to perform
delegated functions of the public body or to advise
the public body."
Nevertheless, it is also critical to consider whether
the provision in the definition of a "public
body" in § 2.2-3701 of the Code of Virginia
for "other organizations, corporations, or agencies
in the Commonwealth supported wholly or principally
by public funds" applies to the Faculty Senate
as well as to the other senates, commissions, and
committees within the governance structure of the
university. Virginia Tech's Associate Vice Provost
for Faculty Affairs confirmed in an email sent to
you that the Faculty Senate's budget allocation "comes
from Educational and General (E&G) Funds"
allocated by the General Assembly to Virginia Tech.
Because it has been acknowledged that the Faculty
Senate is supported by public funds, the immediate
issue to consider is what percentage or amount of
support received by the Faculty Senate is from public
funds as compared to support from other sources.
The
FOIA Council has addressed in several prior opinions
what is meant by "supported wholly or principally
by public funds" in the definition of a "public
body" in § 2.2-3701 of the Code of Virginia.12
Most recently, in Advisory Opinion 09 (2024), this
office opined that "supported wholly or principally
by public funds" generally means when an organization
or entity receives "at least two-thirds, or 66.6
percent, of its operating budget from government sources"
through government appropriation, largess, or a noncompetitive
contract or grant.13
These
previously issued advisory opinions also "cautioned
that the two-thirds rule is merely a guideline, and
that ultimately the question of whether an entity
is supported principally by public funds is a question
of fact that must be decided on a case-by-case basis."14
In The Voice v. Appalachian Regional Community
Services, Inc., the Circuit Court of Buchanan
County, citing previous FOIA Council opinions, determined
that "whether an organization is 'supported .
. . principally by public funds' depends on the total
contribution from public funds as measured against
the number and magnitude of individual private contributions."15
The Circuit Court of Buchanan County held that "an
organization was a public body subject to FOIA because
it received at least 54.94 percent of its funds from
a county in the form of three checks, and the rest
of its support came from 'a number of smaller payments
from a variety of private sources.'"16
Consequently,
the Faculty Senate may qualify as a public body under
FOIA if it is found to be "supported wholly or
principally by public funds" within the determined
threshold. Further verification confirming the actual
percentage or amount of support the Faculty Senate
receives in public funds and whether such support
is through governmental appropriation, largess, or
a noncompetitive contract or grant are important factors
that would greatly assist in making a conclusive determination
as to the Faculty Senate's status. Because the information
on the amount and manner of financial support the
Faculty Senate receives annually from public funds
has not been verified beyond originating from Education
and General Funds appropriated by the General Assembly,
this office is unable to provide a conclusive determination
on whether the Faculty Senate is a public body.
Nevertheless,
if the amount of financial support the Faculty Senate
receives from public funds is found to meet or exceed
the generally recognized threshold of two-thirds,
or 66.6 percent, and the funds are provided by appropriation,
largess, or a noncompetitive contract or grant, then
the Faculty Senate would be subject to FOIA and would
be required to respond to requests for public records
and conduct its meetings in compliance with FOIA's
provisions. Similarly, the other senates, commissions,
and committees within Virginia Tech's governance structure
would also likely be considered public bodies if they
are found to be "supported wholly or principally
by public funds" in the established amount and
manner.
If the Faculty Senate is deemed a public body because
it is "supported wholly or principally by public
funds" or for another reason, then the Faculty
Senate Cabinet may also be considered a public body
under FOIA. According to the information you have
provided, the Faculty Senate President indicated in
an email to you that the Faculty Senate Cabinet "serves
as the executive committee advising the [Faculty]
Senate officers." Because the Faculty Senate
Cabinet serves in an advisory role to the Faculty
Senate, if the Faculty Senate Cabinet is determined
to be a public body, the provision in the definition
of a "public body" that includes "any
committee, subcommittee, or other entity however designated
of the public body created to perform delegated functions
of the public body or to advise the public body"
would probably apply. Therefore, if it is established
that the Faculty Senate Cabinet was created to perform
delegated functions of the Faculty Senate or to advise
the Faculty Senate, then the Faculty Senate Cabinet
would also be regarded a public body in its own right
for purposes of FOIA.
Conclusion
The question of whether the Faculty Senate is a public
body subject to FOIA is contingent on whether the
Faculty Senate is "supported wholly or principally
by public funds."17 From the information you have
provided, it appears that the Faculty Senate receives
an appropriation of public funds deriving from Educational
and General Funds allocated by the General Assembly
to Virginia Tech. However, the amount and manner of
support the Faculty Senate receives from public funds
has not been confirmed as to whether it meets the
generally recognized threshold of two-thirds, or 66.6
percent, of its annual operating budget. A final conclusion
must be reserved until such information is verified.
Subsequently, assessment of the Faculty Senate Cabinet's
status as a public body will ultimately depend on
the determination of the Faculty Senate's status as
a public body under FOIA.
If there is a factual dispute as to whether Virginia
Tech's Faculty Senate is a "public body"
as defined in § 2.2-3701 of the Code of Virginia,
only a court has the authority to resolve it conclusively.
As stated in prior opinions, "this office has
no investigative powers and is not a trier of fact"
and cannot resolve factual disputes.18 The courts of
Virginia are determiners of fact as they possess the
authority to call witnesses, hear testimony, and review
records to determine whether a committee, organization,
or entity is a public body subject to FOIA.
Thank you for contacting this office. We hope that
this opinion is of assistance.
Sincerely,
Joseph
Underwood
Senior Attorney
Matteo
Murrelle
Senior Attorney
Alan
Gernhardt
Executive Director
1See
1984-85 Op. Atty. Gen. Va. 431. See also
Freedom of Information Advisory Opinion 23 (2001).
2Id.
3See Freedom of Information Advisory
Opinion 18 (2003).
4Id.
5Id.
6See Va. Code Ann. Article 1 (§
23.1-2600 et seq.) of Chapter 26; See https://governance.vt.edu/assets/GovernanceStructure.pdf.
7Id.
8Id.
9Id.
10Id.
11Id.
12See Freedom of Information Advisory
Opinions 09 (2024), 02 (2023), 05 (2017), 01 (2015),
07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005),
28 (2004), 06 (2004), 03 (2004), 09 (2003), 36 (2001),
and 16 (2000).
13Freedom of Information Advisory Opinion
09 (2024).
14See Freedom of Information Advisory
Opinions 09 (2024), 02 (2023), 05 (2017), 01 (2015),
07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005),
28 (2004), 06 (2004), 03 (2004), 09 (2003), 36 (2001),
and 16 (2000).
15The Voice v. Appalachian Regional
Community Services, Inc., 89 Va. Cir. 284 (Buchanan
County 2014) (finding that an organization that received
at least 54.94 percent of its support from public
funds was a public body); Wigand v. Wilkes,
65 Va. Cir. 437 (City of Norfolk 2004) (finding that
a corporation that received 25 percent of its support
from public funds was not a public body).
16The Voice, 89 Va. Cir. at 287.
17See 1984-85 Op. Atty. Gen. Va.
431. See also Freedom of Information Advisory
Opinions 18 (2003) and 23 (2001).
18See Freedom of Information Opinions
01 (2023), 04 (2015), 02 (2015), and 02 (2013).
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