Virginia Freedom of Information Act
Virginia Freedom of Information Advisory
Council
http://foiacouncil.dls.virginia.gov/
(804) 698-1810
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
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
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.
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
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.
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
Date
Time
Location
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.
Regular
meetings - 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
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
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.
FOIA does not have requirements regarding
specific agenda items, agenda contents or agenda changes
FOIA does not address parliamentary
procedure
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))
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
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
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))
Motion, Discussion, Certification
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
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
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
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)
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
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
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
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
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
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
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