2026 Advisory Opinions Issued

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

ADVISORY OPINIONS ISSUED

2026

Opinion No.	Issue(s)
February
AO-01-26	While FOIA does not explicitly state the level of specificity required when posting the location of a meeting, following FOIA's policy and purpose the notice must include sufficient information for the public to locate and attend the meeting.
AO-02-26	This opinion examines the interaction of copyright law with FOIA, the scholastic records exemption, and the exemption for tests and examinations in the context of a request for public records from a public school.
AO-03-26	In general, an organization or entity receiving 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 is a "public body supported wholly or principally by public funds" as defined in § 2.2-3701 of the Code of Virginia and subject to FOIA for meetings and public records. Such entities within a state university'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. The FOIA Council has no investigative powers and is not a trier of fact and cannot resolve factual disputes between a requester and a public body. The courts of Virginia are determiners of fact and authorized to enforce the provisions of FOIA.
May
AO-04-26	A county is a political subdivision and an arm of the Commonwealth and, therefore, is not a "citizen of the Commonwealth" for purposes of subsection A of § 2.2-3704 of the Code of Virginia. A public official may submit a FOIA request in their individual capacity as a citizen of the Commonwealth.
AO-05-26	This office's recommended guidance is that both FOIA and FERPA apply to education and scholastic records and that a school district, school board, and school would best be served by complying with the provisions of both laws, and if possible, should avoid violating either one. By complying with the five working day response timeline of FOIA, a school district, school board, and school would also comply with the 45 day response timeline of FERPA. Otherwise, a school district, school board, and school would comply with FERPA's response timeline while violating FOIA's response timeline in subsection B of § 2.2-3704 of the Code of Virginia. FOIA affords requesters the right to choose whether to inspect or obtain copies of public records. Therefore, a custodian cannot require a requester come to the school to inspect and review the requested records instead or providing copies of the records if the requester chooses to obtain copies of the records. FOIA specifically prohibits a public body from assessing charges to a parent or legal guardian of a minor student or a student who is 18 years of age or older for providing "scholastic records." However, a school or school board may possess public records that are not considered part of a student's "scholastic records" and may charge for production of such records. A public body cannot require a requester to fill out a particular form or portal to make a FOIA request or refuse to respond to a request if a requester does not use a particular form or portal. A school or school board may provide the requester the option of using a request form or portal for convenience and clarity, but a request cannot be ignored or denied by a public body because the requester has determined not to fill out a form or use a portal and decided to use an alternative method in submitting a request. FOIA is not intended to be "an adversarial process staking government against citizens."
AO-06-26	Regulations and statutes are laws, not records "in the transaction of public business" and are published "as otherwise specifically provided by law." Therefore they are not public records subject to FOIA.
June
AO-07-26	Pursuant to subsection I of § 2.2-3707 of the Code of Virginia, FOIA requires that minutes of a public body's meeting be recorded in writing and include: (i) the date, time, and location of the meeting (i.e. notice); (ii) the members of the public body recorded as present and absent (i.e. determination of a quorum); and (iii) a summary of the discussion on matters proposed, deliberated, or decided, and a record of any votes taken. FOIA also requires that the minutes for meetings with remote participation by the members include: (1) the identity of the members of the public body who participated in the meeting through electronic communication means; (2) the identity of the members of the public body who were physically assembled at one physical location; and (3) the identity of the members of the public body who were not present at the location identified in clause (2) but who monitored such meeting through electronic communication means. Moreover, subsection B of § 2.2-3708.3 of the Code of Virginia, FOIA provides that the public body shall record in its minutes the fact and basis that a member or members participated through electronic communication means due to one of the four approved reasons and the remote location from which the member or members participated through electronic means. However, FOIA does not specifically provide when final minutes must be adopted or approved by a local public body or how long the minutes must remain posted on the public body’s official government website. FOIA in § 2.2-3707.2 of the Code of Virginia requires a local public body to post minutes of its meetings on its official public government website, if any, within seven working days of final approval of the minutes. If a local public body does not own or maintain an official public government website, copies of all meeting minutes shall be made available no later than seven working days after final approval of the minutes at a prominent public location in which meeting notices are regularly posted and at the office of the clerk of the public body, or in the event a public body has no clerk, at the office of the chief administrator.
AO-08-26	When a request is sent in multiple parts at the same time, whether a public record is provided in response to one aspect of the request or a different aspect of the same request is moot so long as the response is in compliance with FOIA. A public body may only withhold a public record in its entirety if the entire record is exempt or prohibited from public disclosure. Otherwise only the exempt or prohibited portions may be withheld and the rest must be disclosed. Only the courts have the authority to order the production of withheld records for in camera review to determine whether an exemption was applied properly. Electronic records must be provided in any format the requester chooses so long as it is a format used in the regular course of business. FOIA allows exemptions to be cited categorically when records are withheld in whole or in part and FOIA does not require public bodies to produce a Vaughn-style index when withholding records. However, it may be helpful to do those things as it may facilitate better understanding and communications between a requester and the responding public body.
AO-09-26	The FOIA Advisory Council cannot make factual determinations about the status of a particular investigation or treat a citation change as a definitive “acknowledgment.” Furthermore, FOIA does not require an agency to apply a formal public-interest balancing test or other specific factors (such as how long an investigation has lasted or whether charges were brought) before choosing to withhold records under the discretionary “criminal investigative files” exemption in subdivision B 1 of § 2.2-3706. When withholding records, a public body must describe the withheld records with reasonable particularity and cite the specific Code section authorizing withholding, but FOIA does not require additional explanation beyond those statutory requirements. Finally, FOIA’s general rules favor openness, meaning exemptions must be construed narrowly and any ambiguity about whether a record fits an exemption should be resolved in favor of disclosure.