Overview of and FAQs about Virginia’s Freedom of Information Act
(Note: Annotations are illustrative; they are not meant to be comprehensive.)
2.1-340. SHORT TITLE.
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The Virginia Freedom of Information Act (FOIA) was enacted July 1, 1968. The statute ensures citizen access, with certain exceptions, to government records and meetings.
In FOIA’s 30-plus years, numerous amendments have been added and changes made. The 1999 General Assembly gave FOIA a major overhaul in an effort to clarify previously ambiguous provisions. Besides making substantive changes, the 1999 amendments also reorganized portions of the statute and stripped out some of FOIA’s cumbersome language, all in an attempt to make FOIA more accessible to the Commonwealth’s citizens and its government employees.
As must be admitted, even the most accessible, “user-friendly” statute can be difficult to administer. This summary, therefore, is designed as a tool for getting to know the ins and outs of FOIA.
The statute is reprinted section by section. The commentary following each section will explain the policy behind the provisions, spell out procedures, delineate mandatory requirements, or describe relevant exceptions.
Most sections also include a “Questions & Answers” section that should respond to some of the day-to-day issues government employees and citizens encounter when putting FOIA into practice. Finally, in each “Annotations” section, there are a small selection of opinions issued by the Virginia Office of Attorney General and Virginia’s courts.
The Attorney General opinions are not binding on authority, they are merely for guidance. For a comprehensive list of AG and court opinions on the Web, visit https://opengovva.org/foi-opinions/. Also, if you have a question you don’t see addressed in this summary, contact the Virginia Freedom of Information Advisory Council, toll-free, at 1-866-448-4100 or foiacouncil@leg.state.va.us.
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2.1-340.1. POLICE OF CHAPTER
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FOIA’s objective, as declared by the General Assembly, is to guarantee access to public records and the meetings of government officials.
The pre-1999 statute directed that FOIA be interpreted liberally to improve citizen understanding of government workings. The 1999 amendments bolstered this general policy by adding an affirmative statement that all public records and meetings are presumed open. Furthermore, the law emphasizes statements requiring that exemptions invoked to deny access to public records or public meetings are to be narrowly interpreted. Discretionary exemptions are made to this chapter, only, though some provisions elsewhere in the Virginia Code may make disclosure prohibited.
FOIA encourages cooperation between citizens and government representatives, and it voids local government ordinances that conflict with its provisions.
1. Why is a Freedom of Information Act necessary?
Government business is the business of the people. A Freedom of Information Act ensures that citizens have the right to see public documents and go to public meetings.
2. If a statutory exemption exists, do I have to withhold a public document or close a public meeting?
No. Exemptions are not mandatory. They are to be narrowly construed to favor citizen access. There is no penalty for releasing public documents or opening public meetings that an exemption could have barred.
There are, however, statutes outside FOIA that expressly prohibit disclosure of certain records. These usually refer to a very specific type of record, such as juvenile records (§ 16.1-305) and tax records that reveal the identity of the taxpayer (§ 58.1-3).
3. May a local government enact an ordinance that includes requirements more or less restrictive than those in FOIA?
No. Local ordinances that conflict with FOIA are void.
1974-75 Att’y Gen. Ann. Rep. 578 (Open meetings are necessary to ensure accountability to the public.)
1979-80 Att’y Gen. Ann. Rep. 382 (The general statement of policy found at the beginning of FOIA is a reflection of the legislative intent of the Act.)
2.1-341. DEFINITIONS.
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The definitions section furnishes the first glimpse at how the 1999 General Assembly went about reaching its goal of a more logically written and organized statute. The definition of “criminal incident information” has been moved from the definitions section to the new subsection on criminal records [see § 2.1-342.2]. Now, all issues related to criminal and “noncriminal” law-enforcement records are in one place. The definition of “public body” may look more extensive, but it is really the same definition that formerly existed. Previously, “public body” was partially defined in the definitions section and partially defined in § 2.1-343. Both halves are now together in this section.
The phrase “emergency meeting” is used frequently in the subsections dealing with access to public meetings. A term has been defined now in this section.
“Public records” is the new name for what used to be called “official records.” The definition of “public records” has also been expanded to incorporate present-day methods of keeping, recording and storing information.
Finally, what was alternately known as “executive meeting” and “closed meeting” is now defined only as “closed meeting.”
1. Have any terms been added recently to FOIA?
Yes. In 1999, the definition of “emergency meeting” was been added to describe a meeting where unforeseen circumstance render the statute’s notice provisions [see § 2.1-343] impossible or impracticable and where circumstances require immediate action.
2. Have any terms been deleted from FOIA?
No. The definition of “criminal incident information” has been moved from the definitions section to the new subsection dealing with all criminal records [see § 2.1-342.2].
3. Does the definition of a “public body” apply to both records and meetings?
Yes. The only definition for a “public body” is now in the definitions section.
4. What are “public records” and “closed meetings”?
“Public records” is the name now used for what was called “official records.” “Closed meeting” is the name now used for what was called “executive meeting.”
5. Does any meeting of various members of a public body constitute a “meeting” under FOIA?
No. This section and § 2.1-343 specifically provide that the mere gathering of a public body’s members&emdash;for instance, at a picnic or other social function&emdash;is not a “meeting” subject to FOIA if the purpose of the gathering is not to discuss or transact public business and the gathering is not organized for that purpose.
6. Does the act cover meetings of committees and subcommittees?
Yes. Committees and subcommittees are covered if they are created to perform delegated functions of the public body or to advise the public body.
1999 Att’y Gen. Ann. Rep. 14 (Members of a state board, if not representing a quorum of board or its committee, may confer informally regarding business of board.)
1981-82 Att’y Gen. Ann. Rep. 437 (Committees established by bodies subject to FOIA are also subject to the Act.)
1990 Att’y Gen. Ann. Rep. 8 (The two members of a seven-member county board, and the two members of a seven-member town council, joining to discuss mutual governmental business are both committees covered by FOIA.)
1982-83 Att’y Gen. Ann. Re. 721 (Cocktail parties attended by members of a public body, like other social functions, are not meetings for purposes of FOIA, provided that they are not held with the intention of conducting business and business does not take place.)
1999 Att’y Gen. Ann. Rep. 12 (“Basic” e-mail communication with three or more members of a public body is permissible without it being a meeting.)
Wall v. Fairfax School Board (Supreme Court of Virginia, 1996) (Non-disclosure of candidates’ votes in a high school election is permitted by the scholastic-records exemption.)
2.1-341.1. NOTICE OF CHAPTER.
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This section requires that any person elected, reelected, appointed or reappointed to any public body be given a copy of FOIA by the public body’s administrator or legal counsel within two weeks of election, reelection, appointment or reappointment.
The 1999 amendments added subsection (B) to place an affirmative duty on public officials to read and familiarize themselves with FOIA and how it works.
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2.1-341.2. PUBLIC BODIES AND RECORDS TO WHICH CHAPTER INAPPLICABLE; BOTER REGISTRATION AND ELECTION RECORDS.
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Section 2.1-341.2 (which was part of § 2.1-345 in previous versions of the statute) specifically exempts four entities from FOIA: the Virginia Parole Board, petit and grand juries, the family assessment and planning teams, and the Virginia State Crime Commission. Financial records of the Virginia Parole Board, however, are considered public records.
The section also affirms that some voter registration and election records are open records, but only if their release does not conflict with Title 24.2.
1. Is this a new provision?
The 1999 amendments combined two provisions formerly found elsewhere in FOIA. The Virginia Parole Board, petite and grand juries, the family assessment and planning teams, and the Virginia State Crime Commission continue to be excepted from FOIA, as do certain voter registration and election records.
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2.1-342. PUBLIC RECORDS TO BE OPEN TO INSPECTION; PROCEDURE FOR REQUESTING RECORDS AND RESPONDING TO REQUEST; CHARGES.
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The 1999 amendments significantly altered § 2.1-342, which guarantees the right to inspect and copy public records. This section used to form the bulk of FOIA because it included both the procedures for obtaining records and all public-records exemptions. Now, this section remains dedicated to procedures for accessing public records, while the public-record exemptions have been moved into a section of their own [see § 2.1-342.01].
This section sets out the steps both the records requester and the records custodian must follow. There is nothing in FOIA that requires a requester to put his or her request in writing or even to specifically invoke the Act when making a request. Many times, a requester will make a request for information that a government employee can answer orally. A requester is not required to reveal why he or she wants the record or information.
Once it has been established that a citizen has asked for a record and described it with reasonable specificity, the custodian must act promptly, and always before the end of five business days. The custodian can make one of four responses to the requester: (1) disclose the entire public record; (2) withhold the entire record; (3) release part of the record, while withholding another part; or (4) advise the requester that the request cannot be processed within the time limit and an additional seven days is needed. When a record or any portion of a record is withheld, the custodian must provide a written explanation identifying which records are being withheld and why. The custodian must explain which specific FOIA section (or other statutory provision) permits confidentiality. The 1999 amendments added the requirement that in order to benefit from the seven-day extension of subsection (b)(4), the custodian must state in writing, within the original five days, why the extra time is needed. Failure to respond in one of the four ways within five days is considered a denial of access and a violation of FOIA.
Custodians may charge a fee for finding and copying public records; however, this fee is not to exceed the actual cost. A public body cannot recover overhead expenses through fees assessed from processing FOIA requests. A public body may require a deposit for requests that will cost more than $200 to process. The deposit cannot exceed the final cost, and the deposit will be applied to the total.
Public records maintained in electronic format received particular attention in the 1999 General Assembly. A custodian can post any information it wants on a Web site or through e-mail. A requester is entitled to receive electronic records in the same format used by the custodian, and the custodian can agree to provide the records in a different format for a reasonable fee.
A custodian is still not required to create a new record for a requester, but the 1999 amendments now specifically state that there are two instances that will not be characterized as involving creating new records: (1) when converting an electronic record from one format to another, and (2) when excising exempt fields from a database.
1. This section used to contain all the public-records exemptions to FOIA. Where are they now?
All of the public-records exemptions are found in §§ 2.1-342.01 and 2.1-342.2.
2. Can I require someone to put his or her request for a record in writing?
No. There is no requirement that the request be in writing. However, to help facilitate the process, there is nothing to prevent you from writing down the request both to confirm it with the requester and to keep track of when the request came in.
3. I think someone is asking for information just to stir up trouble. Can I ask why he or she wants the information?
No. There was a provision in FOIA in the early ’70s that required the requester to identify why he or she wanted the information. That provision was deleted and a 1988 Virginia Supreme Court case made clear that a person’s motivation in making a request is irrelevant.
4. When someone asks for public records, how long does the public body have to respond?
A response is required within five working days.
5. If the number of records requested is too large to handle, do I have a total of 12 days to complete the request?
Yes, but only if you give the requester a written notice within the first five days of the request. The notice must explain why it is impossible to fulfill the request within the five-day period. It is a violation of the statute if you take seven more days to complete the request without notifying the requester within the first five days that you will need the extra time.
6. What happens if the public body does not respond within five days?
A failure to respond is considered a violation of FOIA.
7. All of the records the requester asked for are exempt. Do I have to do anything?
Yes. You must still respond to the requester within five days. Give the requester a written explanation, describing which records are exempt, and citing either a FOIA exemption from § 2.1-342.01, or another state or federal law that prohibits the records’ release.
8. Can I charge a requester for the computer hardware, software or extra electricity it takes to process his request?
No. A records custodian can charge only for the actual cost of accessing, duplicating, supplying, or searching for the records.
9. The requested records will cost $500 to duplicate. What can we do to ensure that we recoup our costs?
For requests of $200 or more, the public body can ask the requester to pay a deposit. In this example, the deposit cannot be more than $500, and any amount deposited will be credited toward the $500 total.
10. A requester asked me to summarize several records. What do I do?
Under FOIA, you are not required to summarize, abstract, or create a new public record. However, the statute encourages government officials to make reasonable efforts to reach an agreement with the requester.
11. We have an electronic database that has some exempt information on it. The requester wants me to delete those fields and give him the rest. Isn’t that the same as creating a new record?
No. The act specifically states that the excision of exempt fields of information from a database is not considered to be the creation of a new record.
12. A requester gave me her e-mail address. Can I send her the records she requested via e-mail instead of making copies?
Yes. The statute allows dissemination of public records by e-mail. You may also post the information on a Web site. If the public body does not use e-mail or a Web site, the requester cannot require that the information be provided in such a format.
Associated Tax Service v. Treasurer (Supreme Court of Virginia, 1988) (Motivation behind FOIA request, even if for commercial purposes, is irrelevant.)
1998 Att’y Gen. Ann. Rep. 5 (A written FOIA request cannot be required of the requester.)
Lawrence v. Jenkins (Supreme Court of Virginia, 1999) (Failure to timely cite the applicable FOIA exemption did not require disclosure of exempt portions of a public record.)
1989 Att’y Gen. Ann. Rep. 13 (If a new record is voluntarily compiled, agency disclosure must be made within a reasonable time considering the nature of the request and the time required to collect the requested records.)
1989 Att’y Gen. Ann. Rep. 13 (Public body not required to compile a record, but the body must notify the requester within the required time that the information requested does not currently exist as a discreet record.)
1987-88 Att’y Gen. Ann. Rep. 30 (Reasonable fees to make deletions to records may be charged.)
1989 Att’y Gen. Ann. Rep. 12 (Public body not permitted to levy fee for salary of employee overseeing inspection of town-council minutes.)
2.1-342.01. EXCLUSIONS TO APPLICATIONS OF CHAPTER.
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The 1999 amendments removed the public-records exemption section from the section on procedures for obtaining records [see § 2.1-342] and made them into a stand-alone provision. There are still 71 total exemptions, as in the previous version of FOIA, but some exemptions have been deleted, new ones added and others collapsed into one another or rearranged. The 1999 amendments also stripped out some superfluous language, updated references to other code sections and public laws, and divided some exemptions into smaller subsections.
The substantive highlights of the 1999 amendments include:
(1) The exemption for certain criminal records information has been moved out of the exemptions section into a new subdivision, § 2.1-342.2.
(2) The working papers exemption, (A)(6), has been narrowed by defining what is meant by “working papers” and the “Office of the Governor.” It now includes a statement that an otherwise public record is not turned into an exempt working paper by virtue of the fact that it has been attached to or incorporated into personal correspondence.
(3) Exemption (A)(69) combines three previous exemptions for certain safety or tactical planning-related records have been combined into one The new exemption applies to the Virginia Museum of Fine Arts, ABC stores, courts and jails, and institutions under the Department of Corrections or the Department of Juvenile Justice.
The 2000 General Assembly added four new exemptions, (A)(72) through (A)(75). They deal with toll facilities, (72), the Department for Rights of Virginians with Disabilities, (73), the Department of Employment Dispute Resolution, (74), and trade secrets information supplied to the Wireless Carrier E-911 Cost Recovery Subcommittee.
Subdivisions (B) and (C) are much the same as they were. Except when salaries are under $10,000, there is no exemption for certain public contracts, salary rates and expenses, or compensation paid by a Virginia Retirement System corporation. Further, a federal or state inmate cannot use FOIA except when exercising the constitutional right to gather evidence for trial.
There are a large number of Attorney General opinions on the issue of whether certain information falls under an exemption. Consult your attorney, the law library or the opinions database at https://opengovva.org/foi-opinions/ for assistance.
1. Does the mayor have to disclose personal letters that come to the office?
No. The working papers exemption includes correspondence for the mayor’s personal use. However, a personal letter attached to an otherwise public record does not turn the public record into an exempt one.
2. The former statute exempted certain criminal records. What happened to that exemption?
All statutes relevant to the release and withholding of certain criminal records have been combined into a new subdivision, § 2.1-342.2.
3. What happened to the exemptions for the security plans of the Department of Juvenile Justice?
Instead of three separate exemptions for security plans, there is now one that applies to the same entities: (a) the Virginia Museum of Fine Arts and its warehouses; (b) stores and warehouses controlled by the Department of Alcoholic Beverage Control; (c) courthouses, jails, detention centers and law-enforcement facilities; and (4) facilities run by the Department of Corrections and the Department of Juvenile Justice.
4. If a particular record falls under an exemption, is disclosure of the record prohibited?
No, not by FOIA, though some other provision in the Virginia Code may prohibit disclosure
5. Someone asked us how much our high school football coach made. Do I have to reveal that information?
Yes. Salary information for all public employees who make $10,000 or more annually is public information that must be disclosed.
6. An inmate in a Virginia prison made a request for some information from our office. Do we have to disclose this?
Probably not. A person incarcerated in a Commonwealth or federal correctional facility cannot request records under FOIA unless the records are to be used as evidence in a criminal prosecution. Also, the inmate may have access to his own medical records, provided certain circumstances are not present.
1978-79 Att’y Gen. Ann. Rep. 318 (The transcript of a Virginia Employment Commission hearing is a public record, but is exempt from mandatory disclosure by other code provisions.)
1982-83 Att’y Gen. Ann. Rep. 724 (Working papers exemption lost when chief executive officer distributes record to others.)
1999 Att’y Gen. Ann. Rep. 17 (Personal property book must be made available for copying by general public, whether or not electronic copying system is available.)
1999 Att’y Gen. Ann. Rep. 212 (Distress warrant related to taxes is public record subject to disclosure; information appearing on warrant pertaining to transactions, property, income or business of taxpayer is confidential unless entered on public assessment book or “published in line of duty.”)
1987-88 Att’y Gen. Ann. Rep. 33 (Names and salaries of government employees making over $10,000/year are a mandated public record and must be disclosed.)
1999 Att’y Gen. Ann. Rep. 75 (Board of visitor member, like any other citizen, has right to records pertaining to employment and compensation terms in agreements between presidents of higher education institutions and the institutions they serve.)
1979-80 Att’y Gen. Ann. Rep. 384 (Inmate entitled to see his own medical records that are otherwise exempt under FOIA.)
2.1-342.2. DISCLOSURE OF CRIMINAL RECORDS; LIMITATIONS.
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This section was added by the 1999 amendments, creating a section to deal exclusively with criminal records. It provides that for the purposes of the section, “law enforcement official” includes attorneys for the Commonwealth. The section states affirmatively the information that shall be released rather than listing required information in the body of an exemption. The existing exemptions were reorganized, and expanded to provide that “mug shots” of adult arrestees need not be released if necessary to avoid jeopardizing an investigation in felony cases. The photograph must be released when such threat no longer exists.
1. Does this new section consist of new exclusions?
With the exception of subdivision 2 of subsection F, all of the exemptions were formerly found in § 2.1-342 of FOIA. The only new exemption applies to “mug shots” of arrestees, and these may be withheld only so long as releasing such photographs would jeopardize an investigation in a felony case.
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2.1-343. MEETINGS TO BE PUBLIC; NOTICE OF MEETINGS; RECORDINGS; MINUTES.
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This section requires that all public meetings be open to the public.
The 1999 amendments altered many subdivisions of § 2.1-343. The definitions of meetings and public meetings were moved to § 2.1-341. An explanation that certain informal gatherings are not considered meetings was moved from the definitions section into subsection G of this section. Also, notice provisions were clarified and expanded, as were the requirements for minutes taken at a public meeting.
There are now specific provisions for public bodies to follow to publicize public meetings. A public body should post notice of a meeting in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body. The 2000 altered the provision from its previous version, which said notice could be posted at either of these locations. A public body that does not have a clerk’s office should post notice in the office of the body’s chief administrator. Notices also may be posted electronically.
To receive regular notice of meetings, a citizen must submit a written request that includes a name, address, zip code, daytime telephone number, and the organization he or she may be representing, if any.
At the same time the public body distributes agenda materials to its members, the public body must provide at least one copy of the same materials, except for any exempt public records, for public inspection.
Subsection (F) goes into greater detail than the definitions section, §2.1-341, about under what circumstances informal gatherings will not be considered meetings.
When the public body records its minutes, those tapes are considered public records. The public has the right to photograph, film or record open meetings, but the public body conducting the meeting may impose limitations to prevent interference with the meeting.
1. Our office regularly posts notice of upcoming meetings on our bulletin board. Do we also have to post notice in our clerk’s office?
Yes. You should post notice both at a prominent location where notices are posted regularly, such as a bulletin board and in the office of the public body’s clerk. However, if your public body does not have a clerk, then post notice in the office of the body’s chief administrator. You may also post notice on the public body’s Web site or distribute notice via e-mail.
2. May a citizen make a standing request to be notified of all meetings of a public body?
Yes. These requests must be made at least once a year in writing and must include the name, address, zip code, daytime telephone number, and organization (if any) or the requester. Notice by e-mail is allowed if the requester has provided an e-mail address. However, it is sufficient to comply with this section if the public body gives notice of all the meetings planned for the year or that meetings are always held on a certain date and time (e.g., the first Monday of the month at 7:30).
3. Does the public body have to disclose records included in its agenda that are exempt under § 2.1-342?
No. When providing at least one copy of the agenda for public inspection, a public body may withhold exempt records that may be included in the materials.
4. Some of our public body members chanced to meet each other at the movies. Is this a meeting covered by FOIA?
Chance encounters of two or more members of a public body are not considered meetings as long as the members did not arrange to meet and they do not talk about public business.
5. A citizen has requested an audio/visual tape the public body made of its last meeting. Is the tape subject to FOIA?
Yes. One of the 1999 amendments specifically made audio, audio/visual, draft minutes and final minutes public records subject to disclosure under § 2.1-342.
1984-85 Att’y Gen. Ann. Rep. 423 (Notice provisions apply to executive session, as well as open meetings, therefore, notice of time and location of executive session must be given.)
1991 Att’y Gen. Ann. Rep. 5 (Public body satisfies continual request for notice by saying its meetings are held at the same time and same place on the same day each month and that separate notice will be given for special meetings.)
American Civil Liberties Union of Virginia v. Andrews (Richmond Circuit Court, 1991) (Pre-arranged meeting of 13 General Assembly members at senator’s hunting lodge was an informal gathering; no notice was required.)
1982-83 Att’y Gen. Ann. Re. 721 (Cocktail parties attended by members of a public body, like other social functions, are not meetings for purposes of FOIA, provided that they are not held with the intention of conducting business and business does not take place.)
1984-85 Att’y Gen. Ann. Rep. 423 (Even informal gatherings, such as over a meal, are meetings if part of the purpose is to discuss public business, or the gathering was prearranged with any purpose of discussing business. If a closed meeting is to be continued at a new site, notice of time and place must be given to those who have requested notification.)
1979-80 Att’y Gen. Ann. Rep. 56 (Public body cannot close open meetings to direct broadcast by radio, or to recording for later broadcast, but equally applicable, reasonable rules may be imposed.)
1984-85 Att’y Gen. Ann. Rep. 427 (A tape recording of a public body’s meeting is an acceptable form of meeting minutes. However, because FOIA allows inspection or copying of minutes, a public body may want to do something else.)
2.1-343.1. ELECTRONIC COMMUNICATION MEETINGS.
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The 1999 revisions to this section included local government committees among those bodies prohibited from holding an electronic meeting where the members of the body are not physically assembled. The definition for “emergency” has been moved to § 2.1-341, the section dealing with general definitions.
Chapter 704 of the 1999 Acts of Assembly authorizes any public body (a) in the legislative branch of state government or (b) responsible to or under the supervision, direction, or control of the Secretary of Commerce and Trade, the Secretary of Technology, or the State Board for Community Colleges to hold meetings via electronic communications means. The Act requires that, except in an emergency, notice of a meeting must be provided no less than seven days before the meeting. The Act also requires that notice for emergency meetings be given contemporaneously with notice provided to members of the public body or board. For purposes of establishing the participation requirement, the Act requires that every location where a member of the public body or board is physically present must be in Virginia and open and accessible to the public. Members of the body not physically present may participate by electronic means only if three members or a quorum is physically present.
The Act is not codified, and requires those using such electronic meetings to file reports with the appropriate Cabinet Secretary or the Joint Rules Committee of the General Assembly by October 15, 2000. The Act expires on July 1, 2000.
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2.1-343.2. TRANSACTION OF PUBLIC BUSINESS OTHER THAN BY VOTES AT MEETINGS PROHIBITED.
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This section requires that any vote a public body takes must be in a public meeting. This section also clarifies a provision under the former statute that secret and written ballots are prohibited, and that votes by telephone or electronic means are limited by FOIA’s provisions regulating electronic meetings.
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1985-86 Att’y Gen. Ann. Rep. 333A (Recorded votes must occur in open session only.)
1987-88 Att’y Gen. Ann. Rep. 34 (No secret ballots permitted.)
2.1-344. CLOSED MEETINGS AUTHORIZED FOR CERTAIN LIMITED PURPOSES.
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This section reaffirms the General Assembly’s policy that a public body is not required to close a meeting to the public. The body may close the meeting, but only if one of the 27 exemptions listed in this section applies. The 2000 General Assembly added an exemption for discussion of trade secrets by the Wireless Carrier E-911 Cost Recovery Subcommittee.
Most of the section is the same as previous version of the statute, with two notable exceptions made by the 1999 General Assemble: (1) a change to the exemption for real estate discussions, and (2) a change to the exemption for advice from legal counsel.
The real estate exemption, § 2.1-344(A)(3), applies now only to the acquisition of real property for a public purpose or for disposition of government-owned real property. The exemption no longer applies to discussions of the condition or use of the property. Further, discussions of real property disposition may be closed to the public only where the discussion would jeopardize the public body’s bargaining or negotiating posture.
Section 2.1-344(A)(7) further details what situations involving legal counsel permit closing a meeting to the public. The subdivision still allows a public body to close a meeting for discussions of “actual or probable litigation.” The 1999 amendments clarify that closed-door discussions are limited to discussions that may jeopardize the public body’s negotiating or litigating posture. The subdivision goes on to define what is meant by “probable litigation”: “litigation which 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.” Finally, the section codifies a Supreme Court of Virginia ruling that the legal exemption cannot be invoked just because the public body’s attorney is at the meeting or has been consulted on a matter up for discussion.
A section that singled out the Intervention Program Committee of the Department of Health Professions and authorities created under the Industrial Development and Revenue Bond Act from the open meeting provisions was broken out from one subdivision and given a subsection of its own, § 2.1-344(E).
As with the records exemption section, there are a large number of Attorney General opinions on the issue of whether certain information falls under an exemption. Consult your attorney, the law library or the opinions database at https://opengovva.org/foi-opinions/ for assistance.
1. Is a public body ever required to close a meeting to the public?
No. A public body is never required to close a meeting. It may do so, but only if one of the 27 exemptions of § 2.1-344 applies.
2. May a public body close a meeting to discuss what color to paint a new school?
No. The new real estate exemption of § 2.1-344(A)(3) applies only to discussions about the acquisition and disposition of real property. The condition or use of the property is not a proper subject for a closed meeting.
3. What is meant by the “probable litigation” phrase in the legal counsel exemption?
“Probable litigation,” as used in § 2.1-344(A)(7), has been defined to mean litigation that has been specifically threatened by, or that the public body or its attorney has a reasonable basis to believe will be filed by, a known party.
4. Our attorney sits in on almost every meeting. May we close those meetings when the attorney is present?
An attorney’s mere presence at a meeting does not justify closing a meeting under the legal counsel exemption.
1989 Att’y Gen. Ann. Rep. 16 (Confidential documents can’t be discussed in a closed meeting if no open-meeting exception covers either the issue or the agency.)
Marsh v. Richmond Newspapers Inc. (Supreme Court of Virginia, 1982) (Mere presence of attorney at meeting is not justification for invoking the legal matters exemption.)
1999 Att’y Gen. Ann. Rep. 15 (A school board can’t meet in closed session to discuss selection of its chairman.)
1999 Att’y Gen. Ann. Rep. 61 (Because a city council does not exercise control over the daily work of the city manager’s employees, the city council cannot use the personnel exemption to discuss city employees in a closed meeting.)
2000 Att’y Gen. Ann. Rep. 42 (Elected officials are not employees of a public body, therefore the closed meeting exemption for private discussions of an individual employee’s performance does not apply to them.)
1998 Att’y Gen. Ann. Rep. 96 (Closed-door discussion of forgiving loans for downtown hotel was permissible under FOIA’s real-estate exemption.)
2.1-344.1. CLOSED MEETINGS PROCEDURES; CERTIFICATION OF PROCEEDINGS.
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This section establishes the procedures a public body must follow before convening a closed meeting.
Before a public body can close a meeting to the public, it must make a detailed motion in the open meeting’s minutes that identifies (1) the meeting’s subject matter; (2) the meeting’s purpose; and (3) the specific exemption under §§ 2.1-343 or 2.1-344(A) that applies. General references to FOIA or to the subject matter of the meeting do not suffice. Only the matters identified in the motion are to be discussed in the closed meeting. Minutes may be taken in the closed meeting, but they do not have to be, and they do not have to be released for an open records request.
When the public body comes out of its closed meeting, this section requires the body to reconvene in open session. Each member of the body is to affirm by roll call or recorded vote that only those matters identified in the motion close the meeting were discussed. Any member who believes matters outside the scope of the motion were discussed is to say so prior to the vote. Failure to certify the contours of the closed meeting does not affect the validity or confidentiality or matters discussed in the closed meeting.
A public body cannot take any action in the closed meetings. The body cannot take action until it has reconvened in an open meeting. There is nothing that prohibits a member of a public body from revealing what was discussed in the closed meeting.
1. What does a public body have to do before it can close a meeting?
A public body in an open meeting must make a detailed motion in the minutes, and take a vote affirming the motion, before the body may close the meeting. The motion must include: (1) the meeting’s subject matter, (2) the meeting’s purpose, and (3) the specific exemption under §§ 2.1-343 or 2.1-344(A) that applies. General references to FOIA or to the subject matter are not acceptable.
2. For convenience, may the public body in a closed meeting discuss public business outside the scope of the motion to close?
No. Only those matters identified in the motion to close may be discussed. When the public body reconvenes in an open meeting, the members each must certify that only matters identified in the motion to close were discussed.
3. Are the members of the public body the only people who may participate in the closed meeting?
No. A nonmember may attend if that person is necessary or may aid the public body in its discussion about the matters identified in the motion to close.
4. Our body received an open records request for the minutes we took in a closed meeting. Do we have to disclose those minutes?
No. You may disclose the minutes because FOIA does not prohibit disclosure. However, § 2.1-344.1(H) confirms that minutes, if they are taken at all, do not have to be released.
1982-83 Att’y Gen. Ann. Rep. 717 (Reading a prepared statement to close a meeting does not meet the FOIA requirement that a motion to go into a closed meeting must be adopted.)
Nageotte v. Board of Supervisors of King George County (Supreme Court of Virginia, 1982) (Inadequate motions for closed-door meetings.)
1986 Att’y Gen. Ann. Rep. 331 (A public body may admit those persons deemed necessary or whose presence will reasonably aid the public body in its consideration of a topic which is the subject of a properly convened closed meeting.)
2.1-346. PROCEEDINGS FOR ENFORCEMENT OF CHAPTER.
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This section details how a citizen goes about enforcing the rights guaranteed by FOIA. A citizen or an officer, director or managing agent of a corporation may file a petition for mandamus or injunction with the general district court or circuit court in the county or city where the petitioner’s rights were denied or in the City of Richmond.
The section lays out the requirements of a petition, and confirms that even a first-time denial of rights under the chapter may be corrected in a judicial proceeding. Attorney’s fees and costs may be awarded to a petitioner at the court’s discretion.
The court is to give the petition an expedited hearing. At the hearing, the public body has the burden of proof to defend why FOIA procedures were not followed. The General Assembly made this change to reflect an implicit presumption that had developed in the courts.
Certain public officials can ask the Attorney General to issue an opinion on a specific problem. However, anyone&emdash;government employee, citizen or member of the news media&emdash;may ask the Virginia Freedom of Information Advisory Council for a formal or informal opinion on a particular matter. Call 1-866-448-4100.
1. In what venue can a citizen file a petition against a public body?
A petition to enforce the provisions of FOIA may be filed in the general district court or the circuit court of the city or county where the alleged violation occurred, or in the City of Richmond.
2. Does a corporation that has filed a petition have to represented by an attorney?
No. A 1999 amendment clarified that as long as no Supreme Court of Virginia Rule conflicts, a corporation can be represented in court by its officer, director or managing agent instead of by an attorney.
3. What happens in court when the petitioner is seeking an order to have records released that the public body says are protected by an exemption?
The public body carries the burden of proof to show why a particular exemption, either from the public records or the open meetings section of FOIA, applies.
4. If the court finds that a public body violated FOIA, what can the court do?
The court may issue the injunction or order mandamus (an order directing a government employee to perform a specific task or function). The court may rule that the public body should pay attorney’s fees and/or reasonable costs to the petitioner. The court also may impose a fine, as provided in § 2.1-346.1.
5. I need an immediate answer to my question regarding whether an exemption applies. What can I do?
The quickest way to get an answer to your questions about how to apply FOIA is to call the Virginia Freedom of Information Advisory Council at 1-866-448-4100 for a free opinion on the matter.
Lawrence v. Jenkins (Supreme Court of Virginia, 1999): (Writs of mandamus should be issued only if FOIA rights and privileges have been “clearly established.”)
Little v. RFP Corp./Little v. Virginia Retirement System (Supreme Court of Virginia, 1994) (FOIA violation upheld; review of standard of proof; review of public-body question.)
2.1-346.1. VIOLATIONS AND PENALTIES.
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The fees a court may impose for violations of FOIA were increased by the 1999 General Assembly. If the court finds a willful and knowing violation of FOIA, it may impose of fine between $100 and $1,000. Second and subsequent violations may be fined at $500 to $2,500.
1. If the court finds that a public body violated FOIA, what can the court do?
In addition to granting mandamus or ordering an injunction, the court may impose a fine, from $100 to $1,000 for one willful and knowing violation, and from $500 to $2,500 for subsequent and similar violations. The court may also rule that the public body should pay attorney’s fees and/or reasonable costs to the petitioner, as provided in § 2.1-346.
2. Does money paid in fines go to the person who brought the suit?
No. Fines imposed under this section are paid into the State Literary Fund.
1979-80 Att’y Gen. Ann. Rep. 302 (Board member appointed in an illegal meeting is a de facto officer, and the board’s actions are valid, until notice of the illegal appointment is made.)