The Virginia FOIA Opinion Archive

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FOI Advisory Council Opinion AO-04-24

The exemption for a closed meeting relating to discussion of actual or probable litigation does not require that legal counsel be present at the discussion. Briefings pertaining to actual or probable litigation may be performed by staff members or consultants. Conversely, the exemption for a closed meeting pertaining to consultation with legal counsel employed or retained by a public body regarding specific legal matters does require that legal counsel be present accordingly. Public notice of a special, emergency, or continued meeting must be reasonable under the circumstances and shall be given contemporaneously with the notice being provided to the members of the public body conducting the meeting.

Dooley v. Gloucester School Board

Gloucester County General District Court: Meeting to discuss disciplining a fellow board meet was improper based on the notice given; recording made in the meeting must be released.

Gloss v. Wheeler (Supreme Court)

Community forum meeting that 5 members of the Prince William County Board of Supervisors attended and discussed police response to the George Floyd protests should have been open to the public under FOIA because it discussed "public business." The majority and dissenting opinions discuss the contours of "public business."

Suffolk City School Board v. Wahlstrom (Supreme Court)

The Virginia Supreme Court rules that the public must be able to physically attend a meeting. It also confirms that an injunction can be issued under FOIA without a finding of willful or knowing conduct, and without going through the usual steps for granting injunctive relief in other contexts.

Berry v. Board of Supervisors of Fairfax County (Supreme Court)

The Supreme Court of Virginia voids a revamped zoning ordinance vote that was taken in the first year of the pandemic because the board voted on it in an electronic meeting, but neither FOIA, the county's continuity of government ordinance nor an amendment made to the 2020 budget allowed for votes on matters that are not somehow time-sensitive.

Gent v. Adams

Wise County general district court judge rules Town of Pound gave adequate notice of its meeting. Notice in the newspaper isn't required, and notice on the website wasn't required because a .com website isn't an "official government website." Judge says a .gov domain is required.

FOI Advisory Council Opinion AO-04-20

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.

 

Hart v. Town of Onley

General district judge rules town did not violate FOIA's provisions on motions to go into closed meeting or for proper topics for closed-meeting discussion, specifically discipline of the mayor by the town council.

Townes v. State Board of Elections

The Supreme Court of Virginia ruled June 18, 2020, (among other issues) that a circuit court did not abuse its discretion by allowing the State Board of Elections to introduce multiple instances where two members of the Hopewell Electoral Board violated FOIA's meeting provisions. The petition SBE filed alleged violations on "at least three occasions," meaning that at trial they could offer evidence of those three plus others.

FOI Advisory Council Opinion AO-01-20

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.

Cole v. Smyth County BOS (Supreme Court)

Supreme Court of VIrginia rules unanimously, May 28, 2020, that the Smyth County Board of Supervisors used an improper motion to go into closed session and talked about matters beyond the scope of the claimed exemption.

Attorney General Opinion 20-24

On May 6, 2020, the Attorney General said that the amendments to the budget adopted by the General Assembly and signed by the governor in April 2020 would allow the General Assembly to meet remotely during a time of declared emergency, provided the bodies can meet the conditions offered in the amendments, including that the emergency makes meeting in person "impracticable or unsafe," and (among other things) providing minutes and making sure the public has electronic acess to the proceedings

Attorney General Opinion, 3/20/20

During the COVID-19 outbreak, the Attorney General issued this opinion on the meetings of local and state government boards and whether/when they can meet electronically, without a quorum physically present at one site.

Bragg v. BOS (Rappahannock County)

A Rappahannock County circuit judge ruled the board of supervisors there improperly closed a meeting to talk about an advertisement seeking a replacement for an outgoing county attorney as well as alternatives to the county attorney set-up. The topic was not "legal advice," nor did it fall under the personnel exemption for "prospective candidates for employment."

FOI Advisory Council Opinion AO-08-19

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.

FOI Advisory Council Opinion AO-06-19

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.

FOI Advisory Council Opinion AO-02-19

A public body engaged in dispute resolution proceedings may hold closed meetings under the exemptions for discussion of actual or probable litigation and consultation with legal counsel on specific legal matters. However, it does not appear that FOIA or the various laws concerning dispute resolution have considered or addressed situations where two or more public bodies wish to hold a joint meeting for the purpose of dispute resolution. There are also applicable records exemptions for certain records of dispute resolution proceedings both within FOIA and outside of FOIA in statutes that specifically address such dispute resolution proceedings.

FOI Advisory Council Opinion AO-05-18

A custodian may require a requester of public records to provide his legal name and address and may attempt to verify that a requester is a citizen of the Commonwealth, a representative of newspapers and magazines with circulation in the Commonwealth, or a representative of radio and television stations broadcasting in or into the Commonwealth. Requiring a specific form of identification without an alternative for those who do not have such identification, however, restricts access to information promised by the policy of FOIA. Public bodies must make a proper motion to enter into each closed meeting, even if there are multiple closed meetings within the same open meeting.

FOI Advisory Council Opinion AO-04-18

Discusses general open meetings requirements of public bodies and their committees as well as obligations of public bodies in response to a request for public records. A public body is not required to record open meetings itself but must afford the public the opportunity to record the meetings. A committee of a public body is not required to record minutes of an open meeting if the committee membership is comprised of less than a majority of the public body membership. While a public body must post a link on its website to any routine exemption policy for records, there is no requirement as to how that policy is formed or that the policy be contained in a physical policy document. A public body must state in writing the reasons why public records are not provided in response to a request for public records.

Bragg v. Board of Supervisors (SCOVA)

Virginia Supreme Court unanimously rules that citizen's affidavit in support of an alleged closed meeting violation adequately demonstrated good cause for proceeding.

Batterson v. Voorhees

Batterson v. Voorhees, Powhatan County Judge Paul W. Cella

FOI Advisory Council Opinion AO-03-18

The definition of "public body" includes, among other entities, "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." A budget task force appointed by a school superintendent that advises the superintendent is not a "public body" under this definition.

FOI Advisory Council Opinion AO-02-18

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.

FOI Advisory Council Opinion AO-06-17

The FOIA Council's first opinion under its new executive director, Alan Gernhardt, tackles the three-day notice rule for public meetings.

FOI Advisory Council Opinion AO-03-17

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.

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