A Guide to the Freedom of
Information Act for
Governing Boards of Public Institutions of Higher Education
Prepared by the Virginia Freedom
of Information Advisory Council
in cooperation with the State Council of Higher Education for Virginia
Policy Statement of the Virginia Freedom of Information Act
(FOIA)
By enacting this chapter, the General Assembly ensures
the people of the Commonwealth ready access to public records in the custody of
a public body or its officers and employees and free entry to meetings of
public bodies wherein the business of the people is being conducted. The
affairs of government are not intended to be conducted in an atmosphere of
secrecy since at all times the public is to be the beneficiary of any action
taken at any level of government.
Unless a public body or its officers and employees
specifically elect to exercise an exemption provided by this chapter or any
other statute, every meeting shall be open to the public and all public records
shall be available for inspection and copying upon request. All public records
and meetings shall be presumed open, unless an exemption is properly invoked.[1]
FOIA Training Requirement
Governing boards of public
institutions of higher education are required to receive annual training on
various topics, including FOIA.[2]
To satisfy this statutory requirement, FOIA Council staff regularly
participates in SCHEV's annual training presentations for board members and has
developed this guidance document for reference.
Public Records
What is a public record?
For the purposes of FOIA, the
term public record includes all writings and recordings that consist of
letters, words, or numbers, or their equivalent, set down by handwriting,
typewriting, printing, photostatting, photography, magnetic impulse, optical or
magneto-optical form, mechanical or electronic recording, or other form of data
compilation, 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.[3]
All public records are open to the public
unless a specific exemption in law allows the record to be withheld and a
public body invokes such exemption.
What about retention of public records?
Public records must be retained according to
retention schedules set by the Library of Virginia pursuant to the Virginia
Public Records Act (§ 42.1-76 et seq.). The length of retention depends on the
content of the record. After expiration of the applicable retention period, the
records may be destroyed or discarded.
What about electronic mail?
Emails that relate to public
business are public records, regardless of whether a home or office computer or
phone is used and regardless of whether the communication is through text or a
form of social media or other electronic application. It is the content of the
record, not the equipment or account that is used, that controls.
Emails that qualify as public
records must be retained as required by the Virginia Public Records Act. For
additional information, see the Freedom of Information Advisory Council handout
entitled "Email: Use, Access, and Retention" available on the FOIA
Council website.
Public
Meetings[4]
What is considered a meeting under FOIA for governing
boards of public institutions of higher education?
For the purposes of FOIA, a public
meeting of a board is any gathering, including work sessions, of the
constituent membership of the board convened physically or through electronic
communication means pursuant to § 2.2-3708.2 or 2.2-3708.3 where the members
discuss or transact public business of the board. This meaning applies:
· To the
board or to an informal assemblage of (i) as many as three members or (ii) a
quorum, if less than three, of the constituent membership;
· Wherever
the gathering is held; and
· Regardless
of whether minutes are taken or votes are cast.
NOTE: This
requirement also applies to any meeting, including work sessions, of any
subgroup of the board, regardless of how the subgroup is designated (e.g., a committee,
subcommittee, task force, work group, panel, etc.).
What is public business under FOIA?
For purposes of public meetings,
public business means any activity a public body has undertaken or proposes to
undertake on behalf of the people it represents.[5]
What is not
a meeting under FOIA?
·
The gathering of employees of the board;
or
·
The gathering or attendance of two or
more board members 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, and 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; or
·
A 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 or, debate, or question presented
by others at such public meeting.
Specific
Aspects of Public Meetings
Minutes: Minutes
are required for any meeting of the board or a subgroup of the board.
Voting: No
secret or written ballots are allowed. Votes must be taken at a public meeting
conducted in accordance with FOIA.
Polling: Individual members may be contacted separately
(one-on-one) to ascertain their positions by phone, letter, or email, so long
as the contact is done on a basis that does not constitute a meeting.
Closed Meetings: A closed meeting is allowed only for certain limited purposes as
specifically authorized by FOIA in § 2.2-3711 or other law and requires a
motion stating the purpose, the subject of the closed meeting, and the specific
Code section that authorizes the closed meeting. See § 2.2-3711 of FOIA for
allowable purposes for closed meetings and §§ 2.2-3711 and 2.2-3712 of FOIA for
procedures for holding a closed meeting.
Electronic Meetings: Meetings held through electronic communication means are allowed for
boards under heightened procedural and reporting requirements depending on the
type of electronic meeting (i.e., a meeting during a declared state of
emergency, an in-person meeting with individual member(s) using remote
participation, or an all-virtual public meeting). See §§ 2.2-3708.2 and
2.2-3708.3 of FOIA for specific requirements for meetings held under these
circumstances.
Email and Meetings:
The Virginia Supreme Court has held that emails may constitute a
"meeting" as defined under FOIA if there is simultaneous email
communication between three or more members of a public body.[6]
Avoid "reply all" as a general rule. For additional information, see
the FOIA Council handout entitled "Email and Meetings" available on
the FOIA Council's website.
**************************
Virginia
Freedom of Information Advisory Council
Alan
Gernhardt, Executive Director
Joseph
Underwood, Senior Attorney
Email: foiacouncil@dls.virginia.gov
Telephone (804) 698-1810
Toll-Free 1-866-448-4100
foiacouncil.dls.virginia.gov
Updated July 2024