Advisory Council

Although personnel records may be withheld from public disclosure, accounting records that reflect payments made by a public body to a former employee pursuant to a settlement agreement are not exempt. As this office is not a trier of fact, only a court has the authority to resolve factual disputes about specific records.

The provisions of § 2.2-3708.2 allowing members to participate in meetings by electronic communication means are alternative meetings procedures, not exemptions from public access that would allow meetings to be closed to the public. If a member is calling in due to a disability or medical condition or due to a personal matter, the member must specify which reason it is in order to notify the chair and comply with the requirements for minutes. A generalized concern about illness is not a sufficient reason to use the provision allowing remote participation due to a disability or medical condition, but following the recommendations of VDH and CDC to stay home during the COVID-19 state of emergency is a sufficient reason, particularly if the member is in one of the categories at higher risk to contract a severe illness. However, each body may set its own policy on participation as allowed by FOIA, up to and including not using these remote participation provisions at all.

The records exclusion at subdivision 1 of § 2.2-3705.3 exempts from mandatory disclosure "information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to" certain public bodies. That language includes the application and materials submitted. Additionally, unlike several other exemptions in the same section, the language of this exemption does not limit its application to active investigations nor does it require the disclosure of inactive or completed reports.

Closed meeting motions must include a subject, purpose, and citation and must be set forth in detail in the meeting minutes. Votes taken after a closed meeting must reasonably identify the substance of the vote. Meeting minutes must include a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.

A public body may not provide a requester with a summary of an existing record instead of the record itself, even when the record may be redacted, unless the requester agrees to accept the summary instead.

The fundraising exemption, subdivision A 7 of § 2.2-3705.4, allows a public body to withhold certain information maintained in connection with fundraising activities by or for a public institution of higher education. The identity of a donor may only be withheld under the fundraising exemption if the donor has requested anonymity in connection with or as a condition of making a pledge or donation. Only a court has the authority to review records in camera and render a legally binding decision on whether redactions were properly made.

The exemption in subdivision 13 of § 2.2-3705.1 applies to certain account numbers and routing information, but does not address the names of credit card holders. The expedited hearing provisions in § 2.2-3713 apply regardless of whether a petition is filed in general district court or circuit court. Only a court may rule on evidentiary matters.

The exemption in subdivision 32 of § 2.2-3705.6 of FOIA applies to “information related to a grant application, or accompanying a grant application” that is submitted to the Department of Housing and Community Development as described in the exemption. Challenges to applications submitted as part of the Virginia Telecommunications Initiative program are not exempt from disclosure under this exemption as they are not submitted by the applicant.
 

Failure to provide notice and take minutes of public meetings as required by FOIA are violations of FOIA. Only a court may rule on whether any particular notice is reasonable under the circumstance for a special, emergency, or continued meeting. Once posted, notices should not be removed before the meeting occurs.

Charges for public records are limited to reasonable charges not to exceed the public body's actual costs, but the question of whether a particular charge is reasonable may be decided only by a court.