I.
STATUTORY GUIDANCE
The Virginia Freedom of Information Act
(FOIA) is largely a procedural act, and the provisions relating to meetings set
forth the procedures that a public body must follow in conducting an open
meeting and convening in a closed meeting. This outline breaks down the
procedural requirements, such as what is required in posting a notice and
certifying a closed meeting, and provides practical advice for conducting
meetings that comply with FOIA. Appendix A sets forth in detail the
requirements for making a motion to convene a closed meeting. Appendix B
describes commonly used meeting exemptions of general applicability.
II. OPEN
MEETINGS GENERALLY
What is a meeting under FOIA?
A “meeting” is defined as "the
meetings including work sessions, when sitting physically, or through
electronic communication means pursuant to § 2.2-3708.2 or 2.2-3708.3, as a
body or entity, or as an informal assemblage of (i) as many as three members or
(ii) a quorum, if less than three, of the constituent membership, wherever held,
with or without minutes being taken, whether or not votes are cast, of any
public body."[1]
What is not a meeting under FOIA?
1. The gathering of employees of a public body;
2.
The
gathering or attendance of two or more members of a public body at any place or
function where no part of the purpose of such gathering or attendance is the
discussion or transaction of any public business, the gathering or attendance
was not called or prearranged with any purpose of discussing or transacting any
business of the public body, and the
public business is not discussed; or
3. The gathering or attendance of two or more
members of a public body at a public forum, candidate appearance, or debate,
the purpose of which is to inform the electorate and not to transact public
business or to hold discussions relating to the transaction of public business,
even though the performance of the members individually or collectively in the
conduct of public business may be a topic of discussion or debate at such
public meeting.[2]
May a public body conduct a meeting by
conference call or other electronic method?
Maybe. Prior to
July 1, 2007, no local governing body or any other type of local public body was
permitted to conduct a meeting through telephonic, video, electronic or other
communication means where the members are not physically assembled to discuss
or transact public business. However, state public bodies may conduct such
meetings under specified circumstances. Since July 1, 2007, all public bodies
(state, local, and regional) may also allow participation by their members via
teleconference or other electronic means under certain limited circumstances.[3] Please
see the Electronic Meetings Guide
published by this office for details on the conduct of public meetings by
electronic communication means.
What does FOIA require for public meetings?
For public
meetings, the law requires that:
1. Public notice of the meeting be
given;
2. The meeting must be open to the
public; and
3. Minutes of the
meeting must be taken and preserved.[4]
What is sufficient notice?
Notice must contain the date, time, and location of the
meeting.
Where
does notice have to be posted?
As of July 1, 2017, FOIA requires that all
public bodies post notices in three locations:
1. On its official public government website,
if any;
2. In a prominent public location at which
notices are regularly posted; and
3. At the office of the clerk of the public
body or, in the case of a public body that has no clerk, at the office of the
chief administrator.
State public bodies must also post notice on
a central, publicly available electronic calendar maintained by the
Commonwealth. Publication of meeting notices by electronic means by other
public bodies shall be encouraged.[5]
Who else is entitled to notice of a meeting?
Any person who annually files a written
request for notification with a public body is entitled to receive direct
notification of all meetings of that public body. If the person requesting
notice does not object, the public body may provide the notice electronically.
The request for notice shall include the
requester’s name, address, zip code, daytime telephone number, electronic mail
address, if available, and organization, if any.[6]
When must notice be posted?
For regular meetings:
The notice must be posted at least three
working days prior to the meeting.
For special, emergency, or
continued meetings: Notice, reasonable under the circumstance, of
special, emergency, or continued meetings must be given at the same time as the
notice provided members of the public body conducting the meeting. FOIA defines
an emergency as “an unforeseen circumstance rendering the notice required by
FOIA impossible or impracticable and which circumstance requires immediate
action.” [7]
May the public or the media record the
meeting?
Yes. Any person may photograph, film,
record, or otherwise reproduce any portion of a meeting required to be open.[8]
May a public body restrict the use of recording
devices?
Yes. The public body conducting the
meeting may adopt rules governing the placement and use of equipment necessary
for broadcasting, photographing, filming, or recording a meeting to prevent
interference with the proceedings. However, public bodies are not permitted to
conduct meetings required to be open in any building or facility where such
recording devices are prohibited.[9]
When must agenda materials be available to
the public and the media?
At least one copy of the proposed
agenda and all agenda packets and, unless exempt, all materials furnished to
members of a public body for a meeting shall be made available for public
inspection at the same time such documents are furnished to the members of the
public body. The proposed agendas for meetings of state public bodies where at
least one member has been appointed by the Governor shall state whether or not
public comment will be received at the meeting and, if so, the approximate
point during the meeting when public comment will be received.[10]
Are there any exceptions for taking minutes?
Yes. Minutes are required to be taken only
at open meetings; minutes are not required to be taken during closed meetings. Minutes
are also not required to be taken at deliberations of:
1. Standing and other committees of the General
Assembly;
2.
Legislative
interim study commissions and committees, including the Virginia Code
Commission;
3. Study committees
or commissions appointed by the Governor; or
4. Study commissions or study committees, or any
other committees or subcommittees appointed by the governing body or school
board of a county, city or town, except where the membership of the commission,
committee or subcommittee includes a majority of the members of the governing
body.[11]
What information must be included in meeting
minutes?
Minutes
are required (except as noted above) of all open meetings, and must include:
the date, time, and location of the meeting; the members of the public body
present and absent; a summary of matters discussed; and a record of any votes
taken. In addition, motions to enter into a closed meeting and certification
after a closed meeting must be recorded in the minutes.[12]
Are the additional minutes requirements for
electronic meetings?
Yes. Minutes for meetings conducted using
electronic communications must include the following three items:
(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.[13]
Depending on the type of electronic meeting,
there are other specific elements that must be included in the meeting minutes.[14]
Are meeting minutes considered public records
under FOIA?
Yes. Minutes, including draft minutes,
and all other records of open meetings, including audio or audio/visual
recordings, are public records and must be released upon request.[15]
Is there an affirmative obligation to post
meeting minutes?
Yes, but there are separate posting
requirements for local public bodies and for state public bodies in the
executive branch.
Local public bodies:
Except as provided in subsection I of §
2.2-3707, any local public body subject to the provisions of this chapter shall
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, such public body shall make
copies of all meeting minutes available no later than seven working days after
final approval of the minutes (i) at a prominent public location in which
meeting notices are regularly posted pursuant to subdivision D 2 of § 2.2-3707;
(ii) at the office of the clerk of the public body; or (iii) in the case of a
public body that has no clerk, at the office of the chief administrator.
State executive branch public bodies:
All boards, commissions, councils, and other
public bodies created in the executive branch of state government and subject
to the provisions of this chapter shall post minutes of their meetings on such
body's official public government website and on a central electronic calendar
maintained by the Commonwealth. Draft minutes of meetings shall be posted as
soon as possible but no later than 10 working days after the conclusion of the
meeting. Final approved meeting minutes shall be posted within three working
days of final approval of the minutes.[16]
Must all votes of a public body take place in
a public meeting?
Yes. Any and all votes taken to
authorize the transaction of any public business must be taken and recorded in
an open meeting.
A public body may not vote by
secret or written ballot.[17]
Is it a FOIA violation to poll members of
a public body?
No. Nothing in FOIA prohibits separately
contacting the membership, or any part thereof, of any public body for the
purpose of ascertaining a member’s position with respect to the transaction of
public business. Such contact may be done in person, by telephone, or by
electronic communication, provided the contact is done on a basis that does not
constitute a meeting as defined in FOIA.[18]
III. CLOSED
MEETING PROCEDURES
What is
the procedure for conducting a closed meeting?
In
order to conduct a closed meeting, the public body must take an affirmative
recorded vote in an open meeting approving a motion that:
1. Identifies
the subject matter for the closed meeting;
2. States
the purpose of the closed meeting; and
3. Makes
specific reference to the applicable exemption from the open meeting requirements.
The
motion must be set forth in detail in the minutes of the open meeting.
NOTE: A
general reference to the provisions of FOIA, the authorized exemptions from
open meeting requirements, or the subject matter of the closed meeting is not
sufficient to satisfy the requirements for holding a closed meeting.[19]
What may be discussed during a closed
meeting?
A
public body holding a closed meeting must restrict its discussions during the
closed meeting to those matters specifically exempted from the provisions of FOIA
and identified in the motion to convene the closed meeting.[20]
What does a public body have to do at the
end of a closed meeting?
At
the conclusion of any closed meeting, the public body holding the meeting must
immediately reconvene in an open meeting and take a roll call or other recorded
vote certifying that to the best of each member’s knowledge:
1. Only
public business matters lawfully exempted from open meeting requirements under
this chapter, and
2. 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
vote must be included in the minutes of the open meeting.
Any
member of the public body who believes that there was a departure from the
requirements of (1) or (2) above must state so prior to the vote and indicate
the substance of the departure that, in his judgment, has taken place. This
statement must also be recorded in the minutes of the open meeting.[21]
When do decisions made in a closed meeting
become effective?
Decisions
become effective when the public body reconvenes in an open meeting, reasonably
identifies the substance of the decision, and takes a recorded vote on the
resolution, ordinance, rule, contract, regulation, or motion agreed to in the
closed meeting. Otherwise, no resolution, ordinance, rule, contract, regulation,
or motion adopted, passed, or agreed to in the closed meeting is effective. [22]
Public
officers improperly selected due to the failure of the public body to comply
with the other provisions of § 2.2-3711 will become de facto officers and, as such, their official actions are valid
until they obtain notice of the legal defect in their election.[23]
Can there be a closed meeting without
first having an open meeting?
No.
A closed meeting can take place only within the context of an open meeting,
even if the closed meeting is the only agenda item. A closed meeting motion
must be made and voted upon in an open meeting. After the conclusion of the
closed meeting, the members of the public body must reconvene in an open
meeting to vote to certify that they restricted their discussion during the
closed meeting to those matters specifically exempted from the provisions of FOIA
and identified in the motion. Because votes must be taken at open meetings,
public bodies must convene in open meeting both before and after any closed
meeting.[24]
APPENDIX A
How
to Make a Motion to Convene a Closed Meeting
The
Requirements
Section 2.2-3712(A) states that [n]o 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. (Emphasis added.)
FOIA Council opinions have held that a motion
that lacks any of these three elements is insufficient under the law and would
constitute a procedural violation.[25]
Here’s a step-by-step look at how to put together a motion that meets all three
requirements:
1. Identify the subject matter.
·
The
identification of the subject goes beyond a general reference to the exemption,
and provides the public with information as to specifically why the closed
meeting will be held. The subject matter describes the particular fact,
scenario, or circumstances that will be discussed by the public body during the
closed meeting.
·
The
specificity required for identification of the subject must be determined on a
case-by-case basis. It involves balancing FOIA’s policy of affording citizens
every opportunity to witness the operations of government with the need of the
public body to hold certain discussions in private. The identification of the
subject need not be so specific as to defeat the reason for holding a closed
meeting in the first place.
·
Examples
of identification of the subject: discussion of candidates for the appointment
of a new city manager; discussion of the appropriate disciplinary action to
take against a high school student for violation of school policy; discussion
of probable litigation relating to highway construction.[26]
2. State the purpose.
·
The
purpose refers to the general, statutorily allowed meeting exemptions set forth
at § 2.2-3711(A). Section 2.2-3711(A) states that public bodies may only hold closed meetings for the following purposes (emphasis added) and then
sets forth the exemptions.
·
Examples
of purposes: personnel matters; student admissions or discipline; consultation
with legal counsel.
3. Make specific reference to the applicable
exemption.
·
All of
the meetings exemptions can be found at § 2.2-3711(A). It is not enough to cite
this general Code provision, because § 2.2-3711(A) includes over 50 different
exemptions. Instead, the citation must be as specific as possible.
·
Examples
of specific Code references: § 2.2-3711 (A)(1); § 2.2-3711 (A)(2); § 2.2-3711 (A)(7).
Putting
It All Together
Based upon the analysis above, here are three
examples of motions to go into closed session that satisfy the minimum requirements
of § 2.2-2712(A). It is always appropriate to include more information, and any
motion should be tailored with additional facts describing the particular
scenario being addressed by the public body.
1. I move that (insert name of public body)
convene in closed session to discuss the candidates being considered for the
appointment of a new city manager pursuant to the personnel exemption at §
2.2-3711(A)(1) of the Code of Virginia.
2. I move that (insert name of public body)
convene in closed session to discuss the appropriate disciplinary action to
take against an individual high school student for violation of school policy
pursuant to the scholastic exemption at § 2.2-3711(A)(2) of the Code of
Virginia.
3. I move that (insert name of public body)
convene in closed session to meet with legal counsel about probable litigation
relating to highway construction pursuant to the consultation with legal
counsel exemption at § 2.2-3711(A)(7) of the Code of Virginia.
Remember, the appropriateness of any given
motion is fact-based, and no “fill-in-the-blank” model motion will work in all
situations. When drafting a motion, go down the checklist and ensure that you
have included all three elements. Keep in mind the balancing required to keep
citizens informed of the workings of a public body while maintaining the
integrity of the closed session. Please do not hesitate to contact the FOIA
Council to discuss these requirements or the sufficiency of a specific motion.
APPENDIX B
Meeting Exemptions of General Applicability
As of July 2019, FOIA contains more
than 50 open meeting exemptions. Although many of these exemptions apply to
specific agencies or to very content-specific discussions, there are several
open meeting exemptions of general applicability that may be used by virtually
all public bodies. The open meeting exemptions of general applicability are
listed below, with the corresponding statutory citation, as a reference tool.
§ 2.2-3711 (A)(1): Personnel. Provides an exemption for:
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. Any teacher shall be permitted to be
present during a closed meeting in which there is a discussion or consideration
of a disciplinary matter that involves the teacher and some student and the
student involved in the matter is present, provided the teacher makes a written
request to be present to the presiding officer of the appropriate board.
Nothing in this subdivision, however, shall be construed to authorize a closed
meeting by a local governing body or an elected school board to discuss
compensation matters that affect the membership of such body or board
collectively.
§ 2.2-3711 (A)(2): Students. Provides an exemption for:
Discussion or consideration of admission or
disciplinary matters or any other matters that would involve the disclosure of
information contained in a scholastic record concerning any student of any
public institution of higher education in the Commonwealth or any state school
system. However, any such student, legal counsel and, if the student is a
minor, the student's parents or legal guardians shall be permitted to be
present during the taking of testimony or presentation of evidence at a closed
meeting, if such student, parents, or guardians so request in writing and such
request is submitted to the presiding officer of the appropriate board.
§ 2.2-3711 (A)(3): Acquisition &
disposition of property. Provides
an exemption for:
Discussion or consideration of the
acquisition of real property for a public purpose, or of the disposition of
publicly held real property, where discussion in an open meeting would
adversely affect the bargaining position or negotiating strategy of the public
body.
§ 2.2-3711 (A)(4): Privacy. Provides an exemption for:
The protection of the privacy of individuals
in personal matters not related to public business.
§ 2.2-3711 (A)(5): Prospective business. Provides an exemption for:
Discussion concerning a prospective business
or industry or the expansion of an existing business or industry where no
previous announcement has been made of the business’ or industry’s interest in
locating or expanding its facilities in the community.
§ 2.2-3711 (A)(6): Investment of public funds. Provides an exemption for:
Discussion or consideration of the investment
of public funds where competition or bargaining is involved, where, if made
public initially, the financial interest of the governmental unit would be
adversely affected.
§ 2.2-3711 (A)(7): Legal advice or briefings
regarding actual or probable litigation. Provides an exemption for:
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. 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.
§ 2.2-3711 (A)(8): Legal advice regarding
specific legal matters.
Provides an exemption for:
Consultation with legal counsel employed or
retained by a public body regarding specific legal matters requiring the
provision of legal advice by such counsel. 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.
§ 2.2-3711 (A)(12): Tests & exams. Provides an exemption for:
Discussion or consideration of tests,
examinations, or other records excluded from this chapter pursuant to
subdivision 4 of § 2.2-3705.1.
§ 2.2-3711 (A)(16): Medical. Provides an exemption for:
Discussion or consideration of medical and
mental health records excluded from this chapter pursuant to subdivision 1 of §
2.2-3705.5.
§ 2.2-3711 (A)(19): Public safety. Provides an exemption for:
Discussion of plans to protect public safety
as it relates to terrorist activity or specific cybersecurity threats or
vulnerabilities and briefings by staff members, legal counsel, or
law-enforcement or emergency service officials concerning actions taken to
respond to such matters or a related threat to public safety; discussion of
information subject to the exclusion in subdivision 2 or 14 of § 2.2-3705.2,
where discussion in an open meeting would jeopardize the safety of any person
or the security of any facility, building, structure, information technology
system, or software program; or discussion of reports or plans related to the
security of any governmental facility, building or structure, or the safety of
persons using such facility, building or structure.
§ 2.2-3711 (A)(29). Contracts. Provides an exemption for:
Discussion of the award of a public contract
involving the expenditure of public funds, including interviews of bidders or
offerors, and discussion of the terms or scope of such contract, where
discussion in an open session would adversely affect the bargaining position or
negotiating strategy of the public body.
§ 2.2-3711 (A)(39). Economic development. Provides an exemption for:
Discussion or consideration of information
subject to the exclusion in subdivision 3 of § 2.2-3705.6 related to economic
development.
[1] Statutory reference: § 2.2-3701. FOIA Council Opinions AO-4-00, AO-20-01, AO-40-01, AO-46-01, AO-02-02, AO-06-02, AO-13-03, AO-15-04, AO-20-04, AO-11-05, AO-02-06, AO-10-07, AO-12-08, AO-03-09, AO-05-11, AO-07-14.
[2] Statutory references: §§ 2.2-3701. FOIA Council Opinions AO-4-00, AO-10-00, AO-46-01, AO-02-02, AO-13-03, AO-12-04, AO-12-08, AO-05-11, AO-07-14.
[3] Statutory reference: §§ 2.2-3708.2 and 2.2-3708.3 (formerly §§ 2.2-3708 and 2.2-3708.1). FOIA Advisory Opinions AO-1-01, AO-16-02, AO-21-04, AO-12-08, AO-07-09.
[4] Statutory references: §§ 2.2-3700 and 2.2-3707. FOIA Council Opinions AO-40-01, AO-06-02, AO-17-02, AO-13-03, AO-15-04.
[5] Statutory reference: § 2.2-3707 (D). FOIA Council Opinions AO-18-01, AO-43-01, AO-08-07, AO-03-09.
[6] Statutory reference: § 2.2-3707 (F). FOIA Council Opinions AO-3-01, AO-13-03, AO-23-03, AO-08-07.
[7] Statutory references: §§ 2.2-3701, 2.2-3707 (C),(D). FOIA Council Opinions AO-13-00, AO-3-01, AO-18-01, AO-06-02, AO-08-07.
[8] Statutory reference: § 2.2-3707 (H). FOIA Council Opinions AO-03-03, AO-10-05.
[9] Statutory reference: § 2.2-3707 (H). FOIA Council Opinions AO-03-03, AO-10-05.
[10] Statutory reference: § 2.2-3707 (G). FOIA Council Opinions AO-3-01, AO-35-01, AO-23-03, AO-05-12.
[11] Statutory reference: § 2.2-3707 (I). FOIA Council Opinion AO-08-07.
[12] Statutory references: §§ 2.2-3707 (I), 2.2-3712 (A),(D). FOIA Council Opinions AO-25-04, AO-01-06, AO-05-15.
[13] Statutory reference: § 2.2-3707 (I).
[14] Statutory references: §§ 2.2-3708.2 and 2.2-3708.3 (B)(4) and (C)(10).
[15] Statutory reference: § 2.2-3707 (I). FOIA Council Opinions AO-13-03, AO-25-04.
[16] Statutory reference: § 2.2-3707.1.
[17] Statutory reference: § 2.2-3710 (A). FOIA Council Opinions AO-9-00, AO-15-02, AO-01-03, AO-13-03, AO-01-05, AO-05-09, AO-07-09, AO-02-17.
[18] Statutory reference: § 2.2-3710 (B). FOIA Council Opinions AO-08-02, AO-15-02, AO-01-03, AO-07-09.
[19] Statutory reference: § 2.2-3712 (A). FOIA Council Opinions AO-8-00, AO-19-00, AO-14-01, AO-38-01, AO-45-01, AO-08-02, AO-17-02, AO-02-04, AO-24-04, AO-01-05, AO-06-07, AO-13-07, AO-04-08, AO-13-09, AO-03-13, AO-02-16, AO-03-17.
[20] Statutory reference: § 2.2-3712 (C). FOIA Council Opinions AO-8-00, AO-13-07, AO-13-09, AO-02-16.
[21] Statutory references: § 2.2-3712 (D) and (E). FOIA Council Opinions AO-8-00, AO-17-02, AO-02-04, AO-06-07, AO-04-08, AO-02-16, AO-03-17.
[22] Statutory references: §§ 2.2-3711 (B) and 2.2-3712 (H). FOIA Council Opinions AO-23-01, AO-38-01, AO-15-02, AO-01-03, AO-13-03, AO-24-04, AO-01-05, AO-13-09.
[23] Statutory reference: § 2.2-3711 (C).
[24] FOIA Council Opinions AO-02-04, AO-06-07, AO-08-07, AO-13-09, AO-02-10.
[25] FOIA Advisory Opinions AO-14-01, AO-38-01, AO-45-01, AO-08-02, AO-24-04, AO-01-05, AO-06-07, AO-04-08, AO-13-09, AO-02-10, AO-03-13, AO-02-16.
[26] Example of probable litigation taken from FOIA Advisory Opinion AO-14-01.