The Virginia FOIA Opinion Archive

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.

Section 54.1-108 provides that certain license applications and scoring records, among other records, are not subject to disclosure under the Virginia Freedom of Information Act. This opinion considers a dispute regarding the redaction of applicant names from records related to the application and scoring process.

Records concerning identifiable individual students, including individual students' test scores, are scholastic records that are exempt from mandatory disclosure under FOIA. The redaction of a student's name and other personal information does not necessarily make a scholastic record a nonexempt record that must be disclosed under FOIA as the record may still contain information about the specific individual, whether identified by name or not.

Minke v. Page County

Feb. 25, 2019

U.S. District Court for the Western District of Virginia, Harrisonburg Division

Chief U.S. District Judge Michael F. Urbanski

Access to health records is addressed by FOIA and other specific laws outside of FOIA. Where the laws differ, the more specific provisions are controlling.

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.

The Virginia Supreme Court unanimously ruled the City of Virginia Beach erred by redacting all entries on its bill from an outside law firm that was representing the city in an eminent domain case against a city dentist.

Richmond Circuit Judge Designate William N. Alexander II entered an order Oct. 15, 2018, that (1) FOIA does not apply to "the judiciary, including the Executive Secretary"; (2) enforcement of FOIA against the judiciary and the OES is "barred by the doctrine of sovereign immunity, which has not been waived."; and (3) separation of powers bars enforcement of FOIA against the judiciary and the OES.

It is possible that electronic mail message headers could include legal advice and information protected by the attorney-client privilege exempt from mandatory disclosure pursuant to subsection 2 of § 2.2-3705.2. That exemption includes advice from legal counsel to officers of a public body as well as employees of the public body, and does not place a limit on how many officers or employees of the public body may receive the advice at one time. It is also possible that electronic mail message headers could include information describing the design, function, operation, or access control features of a security system that would be exempt from mandatory disclosure pursuant to subsection 2 of § 2.2-3405.1. 
 

Application forms for medical cannabis pharmaceutical processor permits that are maintained by the Board of Pharmacy are not subject to the disclosure requirements of FOIA pursuant to § 54.1-108.

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.

Fairfax Circuit Court rules GMU Foundation is not subject to FOIA, nor is the university required to respond to a FOIA request on the foundation's behalf.

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.

Discusses the use of the contract negotiations and economic development records exemptions. FOIA allows a records custodian to disclose exempt records in his discretion. Also discuss the working papers exemption as it applies to Cabinet Secretaries.

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, Powhatan County Judge Paul W. Cella

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.

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.

In a case brought against the City of Norfolk alleging violations of FOIA's response times and fee estimates, a Norfolk Circuit Court gives much deference to FOIA Council prior opinions and finds:

A Fairfax Circuit County judge's order on various pretrial motions in a case brought by a transparency group against George Mason University and the George Mason University Foundation, Inc.

A unanimous Supreme Court rules a Loudoun County parent is not entitled to student growth percentile data for certain Loudoun County Public School students under the Virginia Freedom of Information Act.