Advisory Council

A motion to convene a closed meeting must identify the subject of the meeting, the purpose of the meeting, and the exemption(s) which allow the meeting to be closed. A motion that fails to identify the subject, or lacks any other element, is insufficient. There is no general exemption for public bodies to discuss police investigations in closed meetings. Votes are required to be taken at open meetings; decisions made in closed meetings are not effective until a vote is taken at an open meeting.

FOIA provides that public records must be disclosed except as otherwise specifically provided by law. Tax code provisions such as § 58.1-3 are "as otherwise specifically provided by law." The statutory authority of this office is limited to FOIA matters.

An organization, corporation, or agency in the Commonwealth that receives two-thirds (66.6%) or greater support from public funds is considered to be "supported ... principally by public funds" and therefore is a "public body" subject to FOIA. Prior opinions advised measuring an entity's level of funding at the time a request is made, but did not specify a time period to use as a measure. FOIA itself is silent on this point. We recommend using a fiscal year as the basis for determination to provide a balance between predictability in knowing whether an entity is subject to FOIA, and flexibility in recognizing changing factual circumstances.http://www.opengovva.org/foi-opinions/ao-09-05

The Greater Williamsburg Chamber and Tourism Alliance is (for now) a public body subject to FOIA's records and meetings provisions because it receives 68% of its funding from local government budget appropriations. Should the local government funding drop below 66% of the total budget, the alliance would cease to be a public body subject to FOIA.

A motion to convene a closed meeting must identify the subject of the meeting, the purpose of the meeting, and the exemption(s) which allow the meeting to be closed. A motion that fails to identify the subject, or lacks any other element, is insufficient.

FOIA prohibits voting at public meetings by secret or written ballot as well as voting by telephone or other electronic communication means. However, FOIA does not address the use of electronic voting systems that use computer software to cast, record, and publicly display the votes at a public meeting. Whether such a system comports with FOIA depends on whether it publicly displays the individual vote of each member of the public body, or merely the final vote tally.

Opinion summarizes the requirements for responding to a request. A failure to respond to a request for public records is deemed a denial and a violation of FOIA. The statutory remedy for a violation is to file a petition for mandamus or injunction in general district or circuit court. The Newport News Economic/Industrial Development Authority is a public body subject to FOIA.

Generally, requests for information (RFI's) are preliminary to a procurement transaction or contract negotiations, and not directly part of such transactions or negotiations. FOIA does not contain any specific exclusion from mandatory disclosure that would allow information received in response to an RFI to be withheld. Whether other exclusions apply to such information, such as those exclusions applicable to contract negotiation records or proprietary records and trade secrets, must be considered on a case-by-case basis.