Access to
Public Meetings
Virginia
Freedom of Information Act
Virginia
Freedom of Information Advisory Council
(804)
698-1810
Roadmap
FOIA Policy - § 2.2-3700
Definitions - § 2.2-3701
Meeting Requirements
Open Meetings - §§ 2.2-3707, 2.2-3707.1, 2.2-3707.2, and 2.2-3710
Closed Meetings - §§ 2.2-3711 and 2.2-3712
Electronic Meetings - § 2.2-3708.2 and § 2.2-3708.3
FOIA Policy
§ 2.2-3700
All meetings of a public body are presumed open unless a
specific exemption applies.
Liberal construction to promote an increased awareness by all
persons of governmental activities and afford every opportunity to citizens to
witness the operations of government
Narrow construction of exemptions
Not to be construed to discourage the free discussion by
government officials or employees of public matters with the citizens of the
Commonwealth
Meetings
Issues Not Addressed in FOIA
Definition of quorum
Generally, the ordinary meaning of quorum is a simple majority
of the members
Sometimes particular bodies have charters, enabling statutes, or
other requirements that change the usual meaning of quorum for example,
defining quorum as a certain minimum number of members or drawing
distinctions between members who are elected as opposed to members who are
appointed
Parliamentary procedure & powers of a public body to control
its meetings (examples: controlling who may speak at any given time, limiting
public comment, determining which motions take precedence over others, etc.)
Definitions
§ 2.2-3701
Public body
Traditional public bodies (state boards, local governing bodies,
school boards, bureaus, commissions, districts, etc.)
[O]ther organizations, corporations or agencies in the
Commonwealth supported wholly or principally by public funds.
[A]ny 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.
Definitions
§ 2.2-3701
Meeting
means 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.
Exception: gatherings of employees
Exception: gatherings where no part of the purpose of such
gathering or attendance is the discussion or transaction of any public
business, such gathering or attendance was not called or prearranged with any
purpose of discussing or transacting any business of the public body, and no discussion
or transaction of public business takes place among the members of the public
body
Definitions
§ 2.2-3701
Exception: public forum, informational gathering, candidate
appearance, meeting of another public body, or debate, the purpose of which is
to inform the electorate or to gather information from the public and not to
transact public business or to hold discussions relating to the transaction of
public business, where no discussion or transaction of public business takes
place among the members of the public body, even though the performance of the
members individually or collectively in the conduct of public business may be a
topic of discussion, debate, or question presented by others
For purposes of public meetings only, public business means
any activity a public body has undertaken or proposes to undertake on behalf
of the people it represents.
Open
Meetings Requirements
§§ 2.2-3707, 2.2-3707.1, 2.2-3707.2, and 2.2-3710
Notice to the Public
Note that notice to members is not covered by FOIA, but is often
stated elsewhere in other laws
Open to the Public
"Open meeting" or "public meeting" means a
meeting at which the public may be present.
Minutes
Notice
Contents
§ 2.2-3707(D through F)
Date
Time
Location
Where
should notice be posted?
§ 2.2-3707 (D)
FOIA requires all public bodies to post notice in three
locations:
Official public government website, if any;
Definition: any Internet site controlled by a public body and
used, among any other purposes, to post required notices and other content
pursuant to this chapter on behalf of the public body.
Prominent public location in which notices are regularly posted;
and
At the office of the clerk of the public body OR 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.
When should
notice be posted?
§ 2.2-3707(D) and (E)
Regular meetings ΰ at least three working days
prior to the meeting
Do not count the day of the meeting
Do not count weekends, holidays, or days when the office is
closed
Special, emergency, or continued meetings at the same
time as the notice that is provided to the members of the public body that are
conducting the meeting AND reasonable under the circumstance
Are
specific people entitled to notice?
§ 2.2-3707(F)
Anyone who annually files a written request for notification
with a public body
Written request must include:
Requesters name
Address/Zip Code
Daytime telephone number
E-mail address, if available
Organization, if any
Agendas
Inspection & Posting
§ 2.2-3707(G)
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 public body
shall also post the proposed agenda on the public body's official government
website, if any, prior to the meeting.
Proposed gendas 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.
Agendas
Final Actions
§ 2.2-3707(G)
No final action may be taken on items added to the agenda after
the meeting commences unless they are time-sensitive or are the subject of a
closed meeting properly identified in a motion in accordance with § 2.2-3711.
Final action" means a vote, adjudication, or other formal
action taken by a public body that completes a matter or acts as final
consideration of an item. "Final action" does not include:
1. Referral to a committee or
advisory body;
2. Referral to a future meeting for
action;
3. Direction to staff to provide
further information; or
4. Issuance of a commending or
memorial proclamation.
What does
it mean for a meeting to be open to the public?
Definition (§ 2.2-3701): "Open meeting" or "public
meeting" means a meeting at which the public may be present.
Any person may photograph, film, record, or otherwise reproduce
any portion of a meeting required to be open. (§ 2.2-3707 (H))
No public body shall conduct a meeting required to be open in
any building or facility where such recording devices are prohibited. (§ 2.2-3707
(H))
Meeting
Minutes
§ 2.2-3707(I)
Only required to be taken at open meetings
Must include:
Date, time, location of the meeting
Members of the public body present and absent
A summary of matters discussed, deliberated, or decided
A record of any votes taken
Any motions to enter into a closed meeting and certification
after a closed meeting
Posting
Meeting Minutes
§§ 2.2-3707.1 and 2.2-3707.2
State executive branch public bodies (§ 2.2-3707.1)
Post on official public government website
Draft minutes posted no later than ten working days after the
conclusion of the meeting
Final minutes posted no later than three working days after
final approval
Local public bodies (§ 2.2-3707.2)
Post on official public government website, if any
If no such website, make copies available at a prominent public
location in which meeting notices are regularly posted or the office of the
clerk or chief administrator
Post final minutes within seven working days of final approval
Votes
§§ 2.2-3710 and 2.2-3711(B)
All votes taken to authorize the transaction of any public
business must be taken and recorded in an open meeting conducted in accordance
with FOIA
No written or secret ballots
May reach consensus or take straw polls in closed meetings
However, decisions made in closed meetings are not effective
until a vote is taken in an open meeting that reasonably identifies the
substance of the vote (§ 2.2-3711(B))
Closed
Meeting Procedures
§§ 2.2-3711 and 2.2-3712
Motion,
Discussion, Certification
Motion to
Enter into a Closed Meeting
§ 2.2-3712(A)
Public body must take an affirmative recorded vote in an open
meeting approving a motion that:
Identifies the subject matter for the closed meeting;
Must be more than quoting or paraphrasing the exemption
States the purpose of the closed meeting; and
Quoting or paraphrasing the exemption does state the purpose
Makes specific reference to the applicable exemption from the
open meeting requirements
Closed
Meeting Discussions
§ 2.2-3712(C, F, G, and I)
Restricted to those matters specifically exempted from the
provisions of FOIA and identified in the motion (do not stray off topic)
Who may attend?
Nonmembers if they are necessary or will aid consideration of
the topic
Other members of public bodies may attend, but not participate
in, closed meetings of committees, subcommittees, and other sub-entities of the
parent body
Minutes are not required, and if taken, are exempt from FOIA
Certification
of a Closed Meeting
§§ 2.2-3712(D) and 2.2-3714(C)
At the conclusion of a closed meeting, public body must certify
that the only things heard, discussed, or considered in the closed meeting
were:
Public business matters lawfully exempted from the open meeting
requirements, and
Such public business matters as were identified in the motion by
which the closed meeting was convened
Additional penalty for improper certification
Civil penalty of up to $1,000 paid by the public body to the
Literary Fund
Court may consider mitigating factors
Exemptions
§ 2.2-3711(A)
Discussion of personnel - § 2.2-3711(A)(1)
Consideration of acquisition or disposition of real property - §
2.2-3711(A)(3)
Discussion of prospective business or industry - §
2.2-3711(A)(5)
Actual or probable litigation - § 2.2-3711(A)(7)
Consultation with legal counsel on specific legal matters - §
2.2-3711(A)(8)
Discussion of public safety - § 2.2-3711(A)(19)
Discussion of award of public contract - § 2.2-3711(A)(29)
Electronic
Meetings
§§ 2.2-3708.2 and 2.2-3708.3
As of September 1, 2022, there are three general categories:
Remote participation: participation by an individual member of
a public body by electronic communication means in a public meeting where a
quorum of the public body is otherwise physically assembled.
All-virtual public meetings: a public meeting (i) conducted by
a public body, other than those excepted pursuant to subsection C of §
2.2-3708.3, using electronic communication means, (ii) during which all members
of the public body who participate do so remotely rather than being assembled
in one physical location, and (iii) to which public access is provided through
electronic communication means.
States of emergency declared by the Governor or the locality
Electronic
Meetings
Remote
participation (may be used by any public body) - § 2.2-3708.3
Four allowed reasons for remote participation:
Temporary or permanent disability or other medical condition
that prevents members attendance
Medical condition of a family member that prevents members
attendance
Members principal residence is more than 60 miles from the
meeting location
Personal matter that prevents members attendance
All require a physical quorum and prior adoption of a
participation policy
Exception: persons with disabilities and their caregivers who
participate remotely are counted as if physically present for purposes of
determining whether there is a quorum
Remote location from which the member participates does not have
to be open to the public
Personal matters may be used twice per calendar year per member
or 25 percent of the meetings of the public body rounded to the next whole
number, whichever is greater
Electronic
Meetings
All-virtual
public meetings - § 2.2-3708.3
May be used by any public body except local governing bodies,
local school boards, planning commissions, architectural review boards, zoning
appeals boards, and boards with the authority to deny, revoke, or suspend a
professional or occupational license
Requires prior adoption of a participation policy (but no
quorum)
Remote locations do not have to be open to the public unless 3 or
more members are present at that location
All-virtual public meetings may be used twice per calendar year
or 50 percent of the meetings of the public body rounded to the next whole
number, whichever is greater
Additional procedural requirements
Electronic
Meetings
Policy
for remote participation and all-virtual public meetings - § 2.2-3708.3(D)
Before using remote participation or all-virtual public
meetings, the public body must adopt a policy on participation at least once
annually that:
Is applied strictly and uniformly, without exception, to the
entire membership and without regard to the identity of the member or the
matters to be considered or voted upon
Describes the circumstances under which an all-virtual public
meeting and remote participation will be allowed and the process the public
body will use for making requests to use remote participation, approving or
denying such requests, and creating a record of such requests
Fixes the number of times remote participation for personal
matters or all-virtual public meetings can be used per calendar year, not to
exceed the limitations set forth in FOIA
Does not prohibit or restrict any individual member of a public
body who is participating in an all-virtual meeting or who is using remote
participation from voting on matters before the public body
Electronic
Meetings
During
declared states of emergency (§ 2.2-3708.2 and State Budget)
During a Governor-declared or local state of emergency:
Purpose: to provide for the continuity of operations of
the public body or the discharge of its lawful purposes, duties, and
responsibilities- § 2.2-3708.2 (version in FOIA last amended in 2022)
During a Governor-declared state of emergency ONLY
Different procedural requirements and limitations State Budget
Item 4-0.01 (g) (version in the state budget originally added in 2020)
Both may be used by any public body
No requirement for a physical quorum or to have a policy in
place
Electronic
Meetings
(continued)
Members may monitor (listen/watch) even if they cannot
participate
Public & staff participation is always allowed
restrictions only apply to members
Please see our Electronic Meetings Guide on the Reference
Materials webpage for a more detailed discussion
FOIA &
Social Media
Because the definition of public records includes all types of
records that are in the transaction of public business, various forms of social
media may be public records
Because any assemblage of three or more members (or a quorum of
two) of a public body discussing or transacting public business simultaneously
is a meeting subject to FOIA, social media may also be used to conduct meetings
Please see our guide on FOIA & Social Media on the Reference
Materials webpage for a more detailed discussion
Q&A