AO-03-26
February 27, 2026
Mr. Ed Gitre
Blacksburg, Virginia
Request received via email
The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your email of September 3, 2024.
Dear Mr. Gitre:
You have requested an advisory opinion relative to the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) to clarify open meeting requirements for institutions of higher education in the Commonwealth. Specifically, you have inquired whether either the Faculty Senate or the Faculty Senate Cabinet, or both, at Virginia Polytechnic Institute and State University (Virginia Tech) is considered a public body and, therefore, subject to FOIA.
Factual Background
According to the background information provided, you engaged in email correspondence with the Faculty Senate President who asserted that the Faculty Senate Cabinet meetings are not open meetings to the public. Specifically, you were informed that Faculty Senate Cabinet meetings are restricted to Faculty Senate officers and invited guests only, resulting in your exclusion from attendance. The Faculty Senate President stated in a response email to you that “all Faculty Senate meetings are open,” but the upcoming meeting of the Faculty Senate Cabinet was “a closed meeting for what serves as the executive committee advising the [Faculty] Senate officers.” The Faculty Senate President also stated that Virginia Tech’s FOIA Officer indicated to him that only Virginia Tech’s Board of Visitors (BOV) was subject to FOIA and that “the Faculty Senate is not a public body as defined by FOIA.”
You followed up with an email to Virginia Tech’s FOIA Officer with your inquiry of whether the Faculty Senate or any subunit of the Faculty Senate, in particular the Faculty Senate Cabinet, is a public body subject to FOIA. In response, Virginia Tech’s FOIA Officer, after referencing consultation with Virginia Tech’s Legal Counsel, maintained that only Virginia Tech’s BOV constitutes a public body subject to FOIA. You also provided this office with an email from the Virginia Tech Associate Vice Provost for Faculty Affairs that confirmed that the Faculty Senate’s budget allocation “comes from Educational and General (E&G) Funds” (i.e., state funds).
Analysis
The policy of FOIA set forth in subsection B of § 2.2-3700 of the Code of Virginia is to ensure “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.”
FOIA policy as stated in subsection B of § 2.2-3700 of the Code of Virginia also provides that:
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 or 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.
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.
A critical step in understanding whether FOIA applies to a specific entity is making a determination as to whether such entity meets the definition of a “public body” under FOIA. Pursuant to § 2.2-3701 of the Code of Virginia, a “public body” is defined, in relevant part, as:
any legislative body, authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including counties, cities, and towns, municipal councils, governing bodies of counties, school boards, and planning commissions; governing boards of public institutions of higher education; and other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds . . . and (ii) 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. It shall not exclude any such committee, subcommittee, or entity because it has private sector or citizen members.
Applying the definition of “public body” set forth in § 2.2-3701 of the Code of Virginia to the facts presented herein, it appears that the Faculty Senate or the Faculty Senate Cabinet may fall within the provisions of the definition that includes a “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” or an organization “supported wholly or principally by public funds.” If either one of these provisions are met, then the Faculty Senate or the Faculty Senate Cabinet would likely be considered a public body under FOIA and, therefore, subject to FOIA for open public records and meetings.
Prior opinions from both the Office of the Attorney General and the FOIA Council have determined that student governments at public institutions of higher education constitute public bodies when supported wholly or principally by public funds, including student fees.1 In Advisory Opinion 23 (2001), this office referenced an opinion of the Office of the Attorney General stating that a university’s student senate was a public body under FOIA because the “student senate in that case controlled a budget generated from student fees, allocated funds to various other student organizations, and was responsible for the general management of student government.”2
In Advisory Opinion 18 (2003), this office considered “the application of [FOIA] to the student government organization of a state university, and whether a university is the custodian of records of the student government organization.”3 Ultimately, this office concluded that “[b]ecause the student senate appears to be a separate public body, the University is not technically the custodian of the student senate records, and thus not required by FOIA to produce the requested records.”4 However, “FOIA would require the student senate to respond accordingly and a failure to do so would constitute a violation of the law.”5
Virginia Tech’s governance structure may affect whether the Faculty Senate meets the statutory definition of a “public body” under FOIA. This office’s examination of Virginia Tech’s Governance Structure Flowchart finds that it delineates a governance structure for Virginia Tech that puts Virginia Tech’s BOV as the central authority possessing overall governing authority of the university and, therefore, the BOV is considered a “public body” in the traditional sense of the definition.6 Virginia Tech’s governance structure consists of 13 committees, 10 commissions, five senates, the University Council and University Council Cabinet, the President, and the BOV.7 There are also the Department Heads Council, the Council of College Deans, and the Office of the Vice President for Policy and Governance (OVPPG) that “are not part of the legislative (i.e., policy approval) process and are only responsible for consulting the legislative bodies at or below the university council level on policy considerations, or, in the case of the [OVPPG’s] office, facilitating the governance infrastructure.”8
While Virginia Tech’s BOV has established its own standing committees, the creation and delegation pathway for other university bodies, including the Faculty Senate, appears to flow through the President of Virginia Tech, who as the chief executive officer, as such term is defined in § 23.1-100 of the Code of Virginia, is tasked with administration of the university under the direction of the BOV and has been “delegated final authority on some matters by [the] BOV.”9 The University Council advises the President of Virginia Tech, not the BOV. The University Council Cabinet provides a “small-scale discussion forum responsible for setting and administering council business and ensuring resolutions are coming from the correct commission based on the commission’s charge.”10 Under the auspices of the University Council, there are senates that serve as “representative bodies for the constituencies of the campus community,” commissions that consist of “policy-recommending small groups that focus on policies related to their associated areas of expertise,” and committees of “standing or appointed small groups that focus on matters of university wide interest.”11 These various organizations and entities serve as representative bodies for Virginia Tech students, faculty, and employees.
The definition of a “public body” in § 2.2-3701 of the Code of Virginia provides that a committee or subcommittee created to perform delegated functions or advise the full public body is considered a public body in its own right for purposes of FOIA. However, Virginia Tech’s governance structure does not demonstrate that Virginia Tech’s BOV created for or delegated any type of function to the Faculty Senate to perform or that the Faculty Senate advises the BOV. In this instance, the Faculty Senate appears to advise the University Council, and the University Council then advises the President. Given this background, the Faculty Senate would not be considered a public body based solely upon its place and role within the adopted governance structure of Virginia Tech because it is not a “committee, subcommittee or other entity however designated of [a] public body created to perform delegated functions of the public body or to advise the public body.”
Nevertheless, it is also critical to consider whether the provision in the definition of a “public body” in § 2.2-3701 of the Code of Virginia for “other organizations, corporations, or agencies in the Commonwealth supported wholly or principally by public funds” applies to the Faculty Senate as well as to the other senates, commissions, and committees within the governance structure of the university. Virginia Tech’s Associate Vice Provost for Faculty Affairs confirmed in an email sent to you that the Faculty Senate’s budget allocation “comes from Educational and General (E&G) Funds” allocated by the General Assembly to Virginia Tech. Because it has been acknowledged that the Faculty Senate is supported by public funds, the immediate issue to consider is what percentage or amount of support received by the Faculty Senate is from public funds as compared to support from other sources.
The FOIA Council has addressed in several prior opinions what is meant by “supported wholly or principally by public funds” in the definition of a “public body” in § 2.2-3701 of the Code of Virginia.12 Most recently, in Advisory Opinion 09 (2024), this office opined that “supported wholly or principally by public funds” generally means when an organization or entity receives “at least two-thirds, or 66.6 percent, of its operating budget from government sources” through government appropriation, largess, or a noncompetitive contract or grant.13
These previously issued advisory opinions also “cautioned that the two-thirds rule is merely a guideline, and that ultimately the question of whether an entity is supported principally by public funds is a question of fact that must be decided on a case-by-case basis.”14 In The Voice v. Appalachian Regional Community Services, Inc., the Circuit Court of Buchanan County, citing previous FOIA Council opinions, determined that “whether an organization is ‘supported . . . principally by public funds’ depends on the total contribution from public funds as measured against the number and magnitude of individual private contributions.”15 The Circuit Court of Buchanan County held that “an organization was a public body subject to FOIA because it received at least 54.94 percent of its funds from a county in the form of three checks, and the rest of its support came from ‘a number of smaller payments from a variety of private sources.’”16
Consequently, the Faculty Senate may qualify as a public body under FOIA if it is found to be “supported wholly or principally by public funds” within the determined threshold. Further verification confirming the actual percentage or amount of support the Faculty Senate receives in public funds and whether such support is through governmental appropriation, largess, or a noncompetitive contract or grant are important factors that would greatly assist in making a conclusive determination as to the Faculty Senate’s status. Because the information on the amount and manner of financial support the Faculty Senate receives annually from public funds has not been verified beyond originating from Education and General Funds appropriated by the General Assembly, this office is unable to provide a conclusive determination on whether the Faculty Senate is a public body.
Nevertheless, if the amount of financial support the Faculty Senate receives from public funds is found to meet or exceed the generally recognized threshold of two-thirds, or 66.6 percent, and the funds are provided by appropriation, largess, or a noncompetitive contract or grant, then the Faculty Senate would be subject to FOIA and would be required to respond to requests for public records and conduct its meetings in compliance with FOIA’s provisions. Similarly, the other senates, commissions, and committees within Virginia Tech’s governance structure would also likely be considered public bodies if they are found to be “supported wholly or principally by public funds” in the established amount and manner.
If the Faculty Senate is deemed a public body because it is “supported wholly or principally by public funds” or for another reason, then the Faculty Senate Cabinet may also be considered a public body under FOIA. According to the information you have provided, the Faculty Senate President indicated in an email to you that the Faculty Senate Cabinet “serves as the executive committee advising the [Faculty] Senate officers.” Because the Faculty Senate Cabinet serves in an advisory role to the Faculty Senate, if the Faculty Senate Cabinet is determined to be a public body, the provision in the definition of a “public body” that includes “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” would probably apply. Therefore, if it is established that the Faculty Senate Cabinet was created to perform delegated functions of the Faculty Senate or to advise the Faculty Senate, then the Faculty Senate Cabinet would also be regarded a public body in its own right for purposes of FOIA.
Conclusion
The question of whether the Faculty Senate is a public body subject to FOIA is contingent on whether the Faculty Senate is “supported wholly or principally by public funds.”17 From the information you have provided, it appears that the Faculty Senate receives an appropriation of public funds deriving from Educational and General Funds allocated by the General Assembly to Virginia Tech. However, the amount and manner of support the Faculty Senate receives from public funds has not been confirmed as to whether it meets the generally recognized threshold of two-thirds, or 66.6 percent, of its annual operating budget. A final conclusion must be reserved until such information is verified. Subsequently, assessment of the Faculty Senate Cabinet’s status as a public body will ultimately depend on the determination of the Faculty Senate’s status as a public body under FOIA.
If there is a factual dispute as to whether Virginia Tech’s Faculty Senate is a “public body” as defined in § 2.2-3701 of the Code of Virginia, only a court has the authority to resolve it conclusively. As stated in prior opinions, “this office has no investigative powers and is not a trier of fact” and cannot resolve factual disputes.18 The courts of Virginia are determiners of fact as they possess the authority to call witnesses, hear testimony, and review records to determine whether a committee, organization, or entity is a public body subject to FOIA.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Joseph Underwood
Senior Attorney
Matteo Murrelle
Senior Attorney
Alan Gernhardt
Executive Director
1See 1984-85 Op. Atty. Gen. Va. 431. See also Freedom of Information Advisory Opinion 23 (2001).
2Id.
3See Freedom of Information Advisory Opinion 18 (2003).
4Id.
5Id.
6See Va. Code Ann. Article 1 (§ 23.1-2600 et seq.) of Chapter 26; See https://governance.vt.edu/assets/GovernanceStructure.pdf.
7Id.
8Id.
9Id.
10Id.
11Id.
12See Freedom of Information Advisory Opinions 09 (2024), 02 (2023), 05 (2017), 01 (2015), 07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005), 28 (2004), 06 (2004), 03 (2004), 09 (2003), 36 (2001), and 16 (2000).
13Freedom of Information Advisory Opinion 09 (2024).
14See Freedom of Information Advisory Opinions 09 (2024), 02 (2023), 05 (2017), 01 (2015), 07 (2012), 10 (2008), 07 (2007), 07 (2006), 09 (2005), 28 (2004), 06 (2004), 03 (2004), 09 (2003), 36 (2001), and 16 (2000).
15The Voice v. Appalachian Regional Community Services, Inc., 89 Va. Cir. 284 (Buchanan County 2014) (finding that an organization that received at least 54.94 percent of its support from public funds was a public body); Wigand v. Wilkes, 65 Va. Cir. 437 (City of Norfolk 2004) (finding that a corporation that received 25 percent of its support from public funds was not a public body).
16The Voice, 89 Va. Cir. at 287.
17See 1984-85 Op. Atty. Gen. Va. 431. See also Freedom of Information Advisory Opinions 18 (2003) and 23 (2001).
18See Freedom of Information Opinions 01 (2023), 04 (2015), 02 (2015), and 02 (2013).