AO-03-25
March 21, 2025
Ms. Liz Albert
Norfolk, 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 April 25, 2024.
Dear Ms. Albert:
You have asked whether an assemblage of three members of a school board who met with a consultant at a conference and discussed school division right-sizing efforts with the consultant would be considered a “meeting” under the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA).
Factual Background
As background information, you stated that you are vice-president of a local civic league and a longtime advocate for improved capital improvement of Norfolk public schools and that in those roles, you have made it a habit to regularly follow both the School Board of the City of Norfolk (the School Board) and Norfolk City Council meetings. You emailed this office with concerns about how a segment of the School Board “appears to have willfully violated the Virginia Freedom of Information Act.” You stated in your email that the “School Board was recently in the midst of budget deliberations” and that you had been following the budget development by attending “the School Board’s retreat on March 1 to hear more about the School Board’s reaction to the Superintendent’s February 7 budget presentation.”
You stated in your email that at this retreat, “[a School Board member] noted that while he and [another School Board member and the School Board chair] were attending a conference” sponsored by the Council of the Great City Schools (CGCS)1 in October, “they met with a Norfolk Public Schools’ (NPS) facilities consultant who was also in attendance.” You also stated that while at the conference, the three School Board members “discussed school division right-sizing efforts with the consultant.” You wrote that school right-sizing is “a topic that is emotionally and politically volatile” as right-sizing “includes the belief new high school attendance boundaries should be drawn and a high school possibly closed.” Furthermore, you stated that “[a]ny discussion of this nature needs to take place in public rather than at a conference held in another state without the benefit of all board members in attendance.”
In the email, you wrote that “[d]uring the School Board’s budget deliberations an interesting political debate unfolded around the [School Board chair’s] removal of a recommendation from the superintendent’s budget presentation that involved the high school that would be the most likely candidate for closure in any right-sizing initiative.” You stated that two of the three School Board members who attended the conference “were involved in the removal of that recommendation.” You also wrote in your email that a School Board member admitted to discussing the removal of the right-sizing recommendation with the School Board chair who then “directed the superintendent to do so.”
You stated that the School Board member “admitted that was the case in a luncheon meeting” with you and two associates “who had concerns that the recommendation had been removed unilaterally without the knowledge and vote of the entire School Board.” In your email, you stated that you and your two associates believe that the other School Board member “was also involved in the removal discussion, but has not publicly admitted that was the case like [the School Board member] and [the School Board chair] have.” You wrote in your email that to you and other citizens, “this action appears to be an outgrowth of the conversation that took place at the conference.”
In a subsequent email, you wrote that you feel “that the three [School] Board members in question will pass this situation off as a passing commentary . . . [b]ut from the conversation at the retreat and what I have gathered to date indicates otherwise.” You also wrote that “a conversation with the consultant would be key to determining the extent of the [FOIA] violation.” You further stated that your “aim here is to put [the School] Board members (and any other public official for that matter) on notice that there is a segment of residents who understand FOIA, are watching how they conduct business, [and] are expecting integrity and will speak up when a perceived violation occurs.”
Analysis
FOIA policy, as stated in relative part in subsection B of § 2.2-3700 of the Code of Virginia, provides:
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 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 general policy of FOIA is that citizens be provided free entry to meetings of public bodies wherein the business of the people is being conducted.2 FOIA ensures that citizens are afforded every opportunity to monitor government activities and witness the operations of government. FOIA grants citizens such rights because the affairs of government are not intended to be conducted in secrecy but publicly. Hence, a fundamental principle of FOIA is that all public meetings shall be presumed open unless specifically made exempt pursuant to FOIA or other specific provision of law.3
In Gloss v Wheeler, the Supreme Court of Virginia stated “[a]bsent proper invocation of a statutory exception, ‘every meeting shall be open to the public.’”4 The Supreme Court of Virginia declared that “[i]f a gathering falls within [FOIA’s] definition of a ‘meeting[,]’ it is then subject to the open meeting requirements of Code § 2.2-3707.”5 This office has also acknowledged that “[g]enerally, meetings of public bodies will need to be open unless a closed meeting is authorized for a particular purpose under § 2.2-3711 [of the Code of Virginia].”6Thus, FOIA contains an inherent preference for government meetings to be open to public observation as opposed to being conducted privately behind closed doors.
Another principle of FOIA to be considered in our analysis is “the narrow construction rule of FOIA,” which provides that exemptions shall be interpreted as narrowly construed.7 The Supreme Court of Virginia also recognized in Gloss this specific statutory provision of FOIA that “‘puts the interpretative thumb on the scale in favor of’ open government.”8 This office has previously opined that “exemptions [to FOIA] must be ‘narrowly construed’ in favor of disclosure.”9 Accordingly, “if there is a choice between an interpretation of a FOIA provision that favors disclosure and one that favors secrecy, this office must choose the interpretation that favors disclosure.”10 “Otherwise, if there is no question of interpretation and the statutory language at issue is clear and unambiguous, we follow its plain meaning.”11
For purposes of FOIA, § 2.2-3701 of the Code of Virginia defines “public body” in relative 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. [emphasis added].
“This definition explicitly includes school boards, so there is no question that the school board is a public body subject to FOIA.”12
The General Assembly recently amended the definition of “meeting” or “meetings” in § 2.2-3701 of the Code of Virginia to mean:
meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2 or 2.2-3708.3, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. Neither the gathering of employees of a public body nor the gathering or attendance of two or more members of a public body (a) 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, 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 (b) at 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, debate, or question presented by others at such public meeting, shall be deemed a “meeting” subject to the provisions of this chapter. The appointment of more than two members of a public body to another public body does not constitute a meeting of the first public body. For purposes of this definition of “meeting” only, the term “public business” means any activity a public body has undertaken or proposes to undertake on behalf of the people it represents.13
This amendment clarified the existing understanding that “no discussion or transaction of public business” may take place among the members of the public body for gatherings and functions not to be considered a meeting under FOIA.14 In addition, the amendment included the provision “where no discussion or transaction of public business takes place among the members of the public body” for public forums, candidate appearances, or debates.15 The amendment also added “informational gathering” and “meeting of another public body” to the list of permissible gatherings that members of a public body could attend without violating the provisions of FOIA as long as discussion or transaction of public business does not take place among the members.16 Finally, the amendment defined “public business” to mean “any activity a public body has undertaken or proposes to undertake on behalf of the people it represents.”17 Note that this new definition applies to meetings but not to public records.
In prior advisory opinions, this office reasoned that for a gathering to be considered a meeting subject to FOIA:
[I]t must meet two threshold requirements: (1) the presence of three or more members, or a quorum, of a public body sitting as a body or assemblage, and (2) the purpose of discussing or transacting the public business of that public body by those members. If the minimum number of members is not assembled, or there is no discussion or transaction of public business, then the gathering is not a meeting subject to the requirements of FOIA.18
Although the definition of “meeting” in § 2.2-3701 of the Code of Virginia was recently amended, this two-prong litmus test is still applicable in determining whether a gathering may be considered a meeting under FOIA. The occurrence of three or more members, or a quorum, of a public body congregating together remains the first element of the two threshold requirements in determining whether a meeting occurs under FOIA. The provisions of the amendment clarify that the second element of the two threshold requirements in determining whether a gathering is a meeting depends on whether discussions or transactions of public business take place between three or more members of a public body during such gathering. The amendment clarifies that the threshold issue in making such a determination is not whether the members of a public body discuss or transact public business with one or more third parties, but instead whether the members discuss or transact public business with each other. In other words, the significant aspect to consider is whether the discussion or transaction of public business occurs among the three or more members (or a quorum of members if less than three).
On several prior occasions, this office has contemplated issues similarly presented herein. One such advisory opinion addressed whether it constituted a meeting under FOIA when five out of seven members of a town council attended a planning commission meeting.19 That opinion incorporated the Supreme Court of Virginia’s ruling in the case of Beck v. Shelton as relevant to the analysis of information presented to the FOIA Council in that request.20 In Beck, a group of citizens held a gathering to promote adding traffic controls at an intersection in the city; they invited city council members to attend and three city council members did so. The Supreme Court of Virginia, in evaluating FOIA’s policy in subsection B of § 2.2-3700 of the Code of Virginia, which “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 conducted” but is not to “be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth,” determined that “the balance between these values must be considered on a case-by-case basis according to the facts presented.”21 In Beck, “the Supreme Court [of Virginia] upheld the trial court’s holding that a gathering called by citizens and attended by three city council members was not a meeting subject to FOIA” because the “gathering was a citizen-organized ‘informational forum’ and that no part of its purpose was the discussion or transaction of any public business.”22 “In Beck, the city council members in attendance did not ‘discuss anything with each other as a group of three or otherwise.’”23 The Supreme Court of Virginia held that “[t]he trial court was not plainly wrong or without evidence to support its judgment” based in part on the “undisputed evidence at trial” that the “City Council did not have any business pending before it on the issue of traffic controls, nor was it likely to have such matters come before it in the future.”24
The information you have submitted differs from that in Beck where three city council members attended a gathering called by citizens to consider “traffic safety issues and the citizens’ concern about the lack of a stop sign at a particular intersection.”25 Traffic safety was not an issue “before the City Council or likely ever to come before it.”26 The evidence in Beck also demonstrated “that the City Council members did not ‘discuss anything with each other as a group of three or otherwise.’”27 By contrast, you have indicated that the three School Board members met up at a conference and discussed public business, as such term is defined within the definition of “meeting” in § 2.2-3701 of the Code of Virginia, among themselves and a consultant. You have indicated that school right-sizing is an issue the School Board is likely to undertake or propose “to undertake on behalf of the people it represents.”28 Thus, the activities of the three School Board members at the conference as you have described them are dissimilar from “[t]he factors in Beck that led the Supreme Court to affirm the trial court’s decision that the Beck gathering was not a meeting subject to FOIA.”29
Your depiction of the three School Board members attending the same conference, congregating together, and discussing public business (i.e., school right-sizing) is more similar to the details considered in Advisory Opinion 02 (2006). In that advisory opinion, five members of a town council attended a planning commission meeting where one of the town council members in attendance was also a member of the planning commission.30 The information that was submitted to this office as part of that FOIA inquiry denoted that all of the town council members attending the planning commission meeting engaged in discussions with the planning commissioners and each other, including the town council member who was also a planning commissioner, concerning the promulgation of “a restrictive ordinance in a historic area, a topic that had been previously considered by the [Town] Council and was likely to come before the [Town] Council again.”31 Because “the Town Council members at the Planning Commission meeting participated in the discussions, interacted with each other, and volunteered to work with the Planning Commission regarding public business[,]” the previously examined two threshold requirements were deemed as having been met.32 Based on those circumstances, this office determined that it appeared as though a joint meeting of the planning commission and the town council was held “that should have been noticed as such.”33 It was further expressed in the opinion that the resulting conclusion may have been different “if, for example, the [Town] Council members had attended solely as interested citizens, had not interacted with each other as a group or assemblage, and had not discussed public business of concern to the [Town] Council.”34
The situation you have presented also differs from that previously considered by this office in Advisory Opinion 05 (2001).35 The issues in that advisory opinion involved a school board member sitting in the audience of a meeting of a committee formed by a board of supervisors while two other school board members also attended the meeting but as members of that committee. “36This office concluded that that situation did not constitute a ‘meeting’ of the school board subject to FOIA because there was no discussion or transaction of school board business.”37 Although three school board members attended the board of supervisors’ committee meeting, the first element of the two threshold requirements for a meeting, the discussion or transaction of public business did not occur.38 In comparing that situation with the information you have described of the three School Board members attending the same conference, meeting together, and discussing public business (e.g., school right-sizing), the second element of the two threshold requirements appears to have been met in this instance.
In Advisory Opinion 03 (2014), this office considered a matter involving a town council’s members attending meetings of committees to which the members were not appointed but whose membership included other members from the same town council.39 The guidance provided by this office emphasized that “when the member strays from merely observing to participating in the discussion or transaction of public business, then it turns the committee meeting into a meeting of the [Town] Council.”40 Furthermore, this office determined that “[t]he critical element then is not the mere presence of the [Town] Council member at a committee meeting, but the [Town] Council member’s participation in the discussion or transaction of public business.”41 Similarly, the simple presence of three members of a public body at a conference does not necessarily create a violation of FOIA. However, if three or more members of a public body congregate together and subsequently initiate discussions or begin to transact public business among themselves, then it would violate FOIA if it was not properly noticed, open to the public, and otherwise conducted according to the meetings requirements of FOIA.
Conclusion
As previously stated, for a gathering to be considered a meeting under FOIA, it must meet the following two threshold requirements: (i) the presence of three or more members, or a quorum if a quorum is less than three members, of a public body sitting as a body or assemblage and (ii) the purpose of discussing or transacting the public business of that public body by those members.42 Therefore, if three or more members of a public body gather together and do not discuss or transact public business, as such term is defined within the definition of “meeting” in § 2.2-3701 of the Code of Virginia (i.e., any activity a public body has undertaken or proposes to undertake on behalf of the people it represents), then it would not be considered a meeting under FOIA. However, if three or more members of a public body convene and discuss or transact public business, then it would be considered a meeting subject to the provisions of FOIA.
As background information, you stated that three members of the School Board attended a conference and while at this conference, the three School Board members gathered together and discussed school right-sizing with a consultant, which is an issue likely to come before the School Board. The critical information in this scenario is that (a) three School Board members gathered together and (b) the School Board members discussed public business among themselves. The inclusion of the consultant in their discussion is irrelevant for determining whether the gathering is considered a meeting under FOIA. The significant factors are that three or more members of a public body gathered together and participated in the discussion or transaction of public business without complying with the requirements of FOIA for a public meeting.
Thus, if the three School Board members held a meeting, then all of the requirements for a meeting as provided in § 2.2-3707 of the Code of Virginia must be met in order for the meeting to comply with FOIA. Posting notice of the meeting as set forth in subsection D or E of § 2.2-3707 of the Code of Virginia was required. In addition, FOIA, under § 2.2-3700 and subsection A of § 2.2-3707 of the Code of Virginia, provides that all meetings are required to be open for the public to attend freely except when a meeting is properly closed as provided in §§ 2.2-3707.01 and 2.2-3711 of the Code of Virginia. Lastly, the recording and posting of minutes pursuant to subsection I of § 2.2-3707 and § 2.2-3707.2 of the Code of Virginia was also required. The information you have provided did not indicate that a notice was properly posted, whether or not the public was able to attend, or if minutes were recorded or posted. Furthermore, all of the FOIA requirements (i.e., posting of a notice, open meeting access, recording and posting of minutes) would fall upon the School Board as the public body responsible for conducting the meeting. A failure to perform any of these requirements would be a violation of FOIA’s provisions for conducting a public meeting.
Additionally, subsection G of § 2.2-3707 of the Code of Virginia requires that “[a]t 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.” However, the failure to have a copy of a proposed agenda and packets available for public inspection in advance may not necessarily be a FOIA violation because agendas and packets are only required to be made available when they are given to the members of the public body. FOIA does not explicitly require that a public body prepare or have an agenda or materials at all (although most public bodies do so as a matter of tradition and best practices even when it is not explicitly required). If there was no proposed agenda or agenda packets, then none need be made available to the public.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Joseph Underwood
Senior Attorney
Alan Gernhardt
Executive Director
1https://www.cgcs.org/whoweare (noting: “The Council of the Great City Schools (CGCS) brings together 78 of the nation’s largest urban public school systems in a coalition dedicated to the improvement of education for children in the inner cities. The Council and its member school districts work to help our schoolchildren meet the highest standards and become successful and productive members of society. The Council keeps the nation’s lawmakers, the media, and the public informed about the progress and problems in big-city schools. The organization does this through legislation, communications, research, and technical assistance.”).
2See Freedom of Information Advisory Opinion 03 (2014).
3See Va. Code §§ 2.2-3707(A), 2.2-3707.01, and 2.2-3711.
4Gloss v. Wheeler, 301 Va. 258, 279, 887 S.E.2d 11 (2023) (citing Va. Code § 2.2-3700(B)).
5Id. at 280.
6Freedom of Information Advisory Opinion 04 (2018) (noting: Even closed meetings must start with an open meeting where the public body takes an affirmative recorded vote approving a motion that identifies the subject matter of the closed meeting, the purpose of the closed meeting, and the applicable exemption from the open meeting requirements.).
7See Freedom of Information Advisory Opinions 02 (2023), 02 (2021), 04 (2020), 01 (2020), 04 (2019), 03 (2015), 06 (2013), and 01 (2013).
8Gloss at 279 (citing Fitzgerald v. Loudoun Cnty. Sheriff’s Off., 289 Va. 499, 505, 771 S.E.2d 858 (2015)).
9Freedom of Information Advisory Opinion 02 (2021) (citing Virginia Dep’t of Corrections v. Surovell, 290 Va. 255, 263, 776 S.E.2d 579, 583 (2015) (quoting Fitzgerald v. Loudoun County Sheriff’s Office, 289 Va. 499, 505, 771 S.E.2d 858, 860-61 (2015))).
10Id.
11Id.; see, e.g., Cole v. Smyth County Bd. of Supervisors, 298 Va. 625, 636, 842 S.E.2d 389, 394 (2020) (“In construing statutory language, we are bound by the plain meaning of clear and unambiguous language.” (quoting White Dog Publishing, Inc. v. Culpeper County Bd. of Supervisors, 272 Va. 377, 386, 634 S.E.2d 334 (2006))).
12Freedom of Information Advisory Opinion 03 (2018).
13Acts of Virginia, Chapters 733, 756 (2024).
14Id.
15Id.
16Id.
17Id.
18Freedom of Information Advisory Opinions 03 (2014), 03 (2009), 12 (2008), and 02 (2006).
19See Freedom of Information Advisory Opinion 02 (2006) (noting: one of the five members was a member of both public bodies).
20Freedom of Information Advisory Opinion 02 (2006); see, e.g., Beck v. Shelton, 267 Va. 482, 593 S.E.2d 195 (2004).
21Id. (quoting Beck at 493).
22Id. (quoting Beck at 493-94).
23Id. (quoting Beck at 493).
24Id. (quoting Beck at 493-94).
25Id.
26Id.
27Id. (quoting Beck at 493).
28See Va. Code § 2.2-3701.
29Freedom of Information Advisory Opinion 02 (2006).
30See Id.
31Id.
32Id.
33Id.
34Id.
35See Freedom of Information Advisory Opinions 05 (2001).
36See Freedom of Information Advisory Opinions 02 (2006) and 05 (2001).
37Freedom of Information Advisory Opinion 02 (2006); See Id.
38See Freedom of Information Advisory Opinions 02 (2006) and 05 (2001).
39See Freedom of Information Advisory Opinion 03 (2014).
40Id.
41Id.
42See Freedom of Information Advisory Opinions 03 (2014), 03 (2009), 12 (2008), and 02 (2006).