Virginia Freedom of Information Advisory Council
http://foiacouncil.dls.virginia.gov/
(804) 698-1810
Introduction
FOIA requirements for local officials
Public Records
Public Meetings
Remedies and Penalties
Other resources for further questions
About the FOIA Council
Purpose and policy of FOIA
Structure of FOIA how to find what you need within the Code
General Provisions -- §§ 2.2-3700 through 2.2-3703.1
Records Procedures and Exemptions -- §§ 2.2-3704 through 2.2-3706.1
Training Requirements -- §§ 2.2-3704.2 and 2.2-3704.3
Meetings Procedures and Exemptions -- §§ 2.2-3707 through 2.2-3712
Remedies and Penalties -- §§ 2.2-3713 through 2.2-3715
State legislative branch advisory council
Legislative forum for studies and recommendations to
the General Assembly
Answer questions from government, citizens, and media
Publishes advisory opinions and educational materials
Provides FOIA training presentations
Not an investigative or enforcement agency
Ready access to public records
Free entry to meetings of public bodies
FOIA is to be liberally construed to promote awareness
of governmental activities and operations
Any exemption from public access to records or
meetings shall be narrowly construed
No record shall be withheld or meeting closed to the
public unless specifically made exempt
Note: Constitutional officers are subject to FOIA for records purposes only.
Other local officials who are members of public bodies are generally subject to
both the records and meetings provisions of FOIA.
Which local officials must receive training?
Local elected officials; and
The executive director and members of each industrial
development authority and economic development authority; and
Members of any boards governing any authority
established pursuant to the Park Authorities Act.
§ 2.2-3704.3.
Receive FOIA training from the FOIA Council or your
local government attorney within two months of assuming office
Training may be presented live or online
Receive training again at least once every two (2)
years since last training
Clerk of the public body must keep records of training
(name of the official, date of the training) for five years
Note: There is no requirement to report training to
the FOIA Council, only to keep your own records
§ 2.2-3702
All elected, reelected, appointed, and reappointed
officials must:
Be furnished by the public body's administrator or
legal counsel with a copy of FOIA within two weeks following election,
reelection, appointment, or reappointment; and
Read and become familiar with the provisions of FOIA.
A current copy of FOIA may be found on the FOIA Council
website.
Other laws may also affect access to public records
and meetings, but which laws apply will vary depending on the type of record,
type of meeting, and type of elected official.
Because the FOIA Councils statutory authority is
limited to providing advice and guidance regarding FOIA, there will be times
when you need to consult others for advice.
Court records are subject to laws in Titles 16.1
and 17.1 of the Code, as well as the Rules of the Supreme Court
of Virginia
Code §§ 15.2-1415 through 15.2-1421 set out
specific laws for meetings of local governing bodies
Various provisions in Title 15.2 address public
hearings
Code §§ 22.1-72 through 22.1-75 address
school board meetings and procedures
Code § 58.1-3 prohibits the release of certain
tax information
Recognizing and responding to FOIA
requests
§§ 2.2-3704 through 2.2-3706.1
All public records are presumed open unless
specifically exempt
Definition of public record (§ 2.2-3701)
all writings and recordings that consist
of letters, words or numbers, or their equivalent . . . however stored, and
regardless of physical form or characteristics
prepared or owned by, or in the possession
of a public body or its officers, employees or agents
in the transaction of public business.
Note: draft versions are public records
FOIA addresses access to public records (§ 2.2-3704)
FOIA does not require you to answer questions, give
interviews, or provide explanations
Inspect or Copy (requesters choice)
Not free public bodies may charge to produce public
records
FOIA exemptions generally do not prohibit release
Informal vs. formal requests no difference
Citizens of the Commonwealth
Representatives of newspapers & magazines with
circulation in the Commonwealth
Representatives of radio & television stations
broadcasting in or into the Commonwealth
Best practice is to respond to out-of-state requesters
even if they do not have access rights under Virginia FOIA
§ Standardizes practices for internal consistency
§ Out-of-state requester can get a Virginia citizen to
make the same request anyway
Do not have to follow FOIA procedure strictly since
out-of-state requesters cannot enforce Virginia FOIA
How requests may be made:
§ Requester must identify records with reasonable
specificity
§ Public body may require the requesters name &
legal address
§ A request does not have to be in writing or use any
particular form
§ A request does not have to say FOIA
§ The requesters purpose does not matter
Requester has the choice to inspect or to receive
copies
Five working days to respond after request is received
§ The first day to respond is the day after the request
is received
§ Weekends and legal holidays do not count as working
days
Failure to respond is deemed a denial of the request
and a violation of FOIA
Creation of new records not required
Always allowed to make agreements with the requester
on the production of records
1) Provide the requested records
2) Requested records are being entirely
withheld
3) Requested records are being provided in
part and withheld in part
4) Requested records could not be found or
do not exist
5) Additional time needed to search
for/produce records
Most FOIA exemptions are not prohibitions
exempt records may be withheld, but they may also be released in the
discretion of the custodian
Only exempt portions of records may be
withheld (redacted)
An entire record may be withheld only if
the entire record is exempt
Public body may make reasonable charges not to exceed
its actual cost incurred in accessing, duplicating, supplying, or searching for
the requested records
Cannot charge more than the actual cost to the public
body
Cannot charge for certain scholastic records if
requested by parent or guardian (of minor student) or student (if 18 years or
older)
Public body shall make all reasonable efforts to
supply the requested records at the lowest possible cost
Before searching for records, must notify requester of
public bodys right to charge and requesters right to a cost estimate
Must provide an estimate in advance if requested
Public body may require an advance deposit if estimate
is > $200
If a bill goes unpaid 30 days or more, do not have to
respond to new requests until the outstanding balance is paid
Personnel records - § 2.2-3705.1 (1)
Attorney-client privilege- § 2.2-3705.1 (2)
Legal memoranda and other work product - § 2.2-3705.1
(3)
Contract negotiations - § 2.2-3705.1 (12)
Procurement exemptions - § 2.2-3705.6 (10) and (11)
Account & routing numbers - § 2.2-3705.1 (13)
Procedures for open, closed, and
electronic meetings §§ 2.2-3707 through 2.2-3712
Policy: All meetings must be open unless
closed following an exemption § 2.2-3700
Definitions of public body, meeting,
and public business § 2.2-3701
Open Meetings §§ 2.2-3707 through
2.2-3710
Closed Meetings §§ 2.2-3711 and 2.2-3712
Electronic Meetings §§ 2.2-3708.2 and
2.2-3708.3
·
Any legislative body, authority, board,
bureau, commission, district or agency of the Commonwealth or of any political
subdivision of the Commonwealth, including cities, towns and counties,
municipal councils, governing bodies of counties, school boards and planning
commissions
·
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
Also includes:
Other organizations, corporations or
agencies in the Commonwealth supported wholly or principally by public funds
(may include tax-exempt organizations, for example)
Constitutional officers are included, but
only for records purposes
·
Includes meetings including work sessions,
when sitting physically, or through electronic communication means 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
·
quorum if less
than three means two members , if they are a quorum of the public body (Ex. A
subcommittee with only two or three members total would have a quorum of two
members)
·
Must be discussing or transacting public
business in real time
The following are not considered meetings
subject to FOIA:
·
Gatherings of employees (the meetings
rules only apply to members of the public body, not staff)
·
Gatherings where no part of the purpose is
the discussion or transaction of any public business, the gathering 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
·
A public forum, informational gathering,
candidate appearance, meeting of another public body, or debate, the purpose of
which is to inform the electorate and not to discuss or transact public
business
·
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
·
Note: This definition of public business
was added to the definition of meeting in 2024 in response to Gloss v.
Wheeler (Va. 2023), in which the Virginia Supreme Court stated that for a
topic to constitute public business it must not just be something that
conceptually could at some point come before a public body, but rather, the
topic must be something that is either before the public body or is likely to
come before the body in the foreseeable future
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
Contents: date, time, and location of the
meeting
For local public bodies, FOIA requires
notice to be posted in three locations:
1. Official public government website, if any;
2. Prominent public location in which notices are
regularly posted; and
3. At the office of the clerk of the public body OR at
the office of the chief administrator
Regular meetings post three working days
before the meeting
Note: Do not count the day of the meeting
as one of the working days
Special, emergency, or continued meetings
two elements:
Notice must be reasonable under the circumstance
(varies with circumstances)
Public notice must be posted at the same
time the members are notified
Direct notice to those who request it
(usually by an email list)
Open meeting or public meeting means a
meeting at which the public may be present - § 2.2-3701
Must allow public to record, photograph,
film, or otherwise reproduce
FOIA does not address logistics such as
room capacity
Public bodies are encouraged to use
additional means to increase public awareness (Ex. Live streaming online,
broadcasting using television or radio, posting recordings of meetings, etc.)
Only required to be taken at open meetings
Not required for study commissions,
committees, or subcommittees appointed by local governing bodies or school
boards, except where the membership of any such commission, committee or
subcommittee includes a majority of the governing body or school board
Must be posted on the public bodys
official public government website within 7 days of final approval
If the public body has no such website,
then must be made available at a prominent public location in which meeting
notices are regularly posted or the office of the clerk or chief administrator
·
Contents 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
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
Motion, Discussion, Certification
§§ 2.2-3711 and 2.2-3712
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)
Minutes are not required, and if taken,
are exempt from FOIA
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
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
Extra penalty for improper certification
·
All votes taken to authorize the
transaction of any public business must be taken and recorded in an open
meeting
·
No written or secret ballots
·
May take straw polls or reach consensus in
closed meetings
·
Decisions made in closed meetings are not
effective until a vote is taken at an open meeting (§ 2.2-3711 (B))
(Note: All meeting exemptions in FOIA are
set out in § 2.2-3711)
·
Discussion of personnel - § 2.2-3711 (A)
(1)
·
Discussion concerning scholastic
records/students - § 2.2-3711 (A) (2)
·
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)
·
Specific legal matters - § 2.2-3711 (A)
(8)
·
Public safety issues - § 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:
Personal matter that prevents attendance
Medical condition or disability that
prevents attendance
Medical condition of a family members that
prevents attendance
Principal residence is 60 miles or more
from the main meeting location
All of these require a physical quorum and
a participation policy
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 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
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 a participation policy (but no
quorum)
·
Remote locations do not have to be open to
the public unless 3 or more members present at that location
·
All-virtual public meetings may be used
twice per calendar year per member or 50 percent of the meetings of the public
body rounded to the next whole number, whichever is greater
·
Additional procedural requirements
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
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 (A) (3) (version in FOIA amended in 2021)
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
What happens if something goes wrong?
·
Petition for mandamus or injunction with
affidavit showing good cause
·
Mandamus: when the court orders a public
official or employee to do something
·
Injunction: When the court orders a public
official or employee not to do something
·
Petitioner may choose to file in general
district court or circuit court
·
Venue against a local body is in the
county or city where the body is
·
A single violation is sufficient to invoke
the remedies
·
Expedited hearing within seven days
·
Petitioner must notify public body before
filing
·
If the petitioner wins, shall be awarded
court costs, attorney fees, and any expert witness fees (paid by the public
body)
·
Public body bears burden to prove an
exemption applies
·
Willful & knowing violation of records
and meetings requirements
·
$500 to $2000 civil penalty for first
violation
·
$2000 to $5000 civil penalties for second
and subsequent violations
·
Paid by the individual to the Literary
Fund (not paid by the public body)
·
May introduce advisory opinions of the
FOIA Council as evidence that it was not willful & knowing - § 2.2-3715
·
Records altered or destroyed before record
retention period expires
·
With intent to avoid FOIA
·
Civil penalty up to $100 per record
·
In addition to any other penalties
·
Paid by the individual to the Literary
Fund (not paid by the public body)
·
Note: Record retention periods are set by
the Library of Virginia under the Virginia Public Records Act
Improper certification of closed meeting
Civil penalty up to $1000
Paid by public body to the Literary Fund
Mitigating factors: Opinions of the
Attorney General, court cases, published Advisory Opinions from the FOIA
Council
FOIA Council Contact us with any
FOIA questions
Telephone (toll free) 866-448-4100
Telephone (Richmond) 804-698-1810
Email: foiacouncil@dls.virginia.gov
Library of Virginia Records Management
Section (for records retention questions under the Public Records Act)
For members of municipal councils, county
boards of supervisors, and school boards:
Virginia Association of Counties
Virginia School Boards Association
For constitutional officers:
Virginia Sheriffs Association
Commonwealths Attorneys Services Council
Treasurers' Association of Virginia
Commissioners of the Revenue Association of Virginia
Office of the Executive Secretary of the Supreme Court
of Virginia
Virginia Court Clerks Association