The Virginia FOIA Opinion Archive

Henrico circuit judge rules a senator can be sued for a FOIA violation in her individual capacity and that Facebook posts can be public records. But, the Facebook posts in this case are deemed not about public business and so did not need to be disclosed.

Clerks of court are the individual custodians of the court case data supplied to the Office of Executive Secretary's online database.

Virginia state senators are not individually subject to FOIA. (OVERRULED by a subsequent decision)

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.

Section 24.2-107 of the Code of Virginia requires local electoral boards to post on an official website whatever kinds of minutes they keep, including both draft and final minutes.

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.

A motion to convene a closed meeting that contains a general reference to the subject matter to be discussed does not satisfy the requirement to identify the subject. If a member feels that a closed meeting discussion strays beyond the matters identified in the motion to convene, that member shall make a statement to that effect to be included in the minutes before the public body votes to certify the closed meeting. In such a situation, it is expected that the member who feels that the discussion strayed will vote against the motion to certify when the vote is called. Further, if the motion to convene a closed meeting purports to discuss a subject (or subjects) but the actual discussion is of some other topic not addressed in the motion, that would be a violation of FOIA.

Records that have been prepared by or for the Office of the Governor for personal or deliberative use may be withheld as working papers. However, if those records are disseminated by the Office of the Governor to another agency for that agency's use in carrying out its statutory duties, then the records may not be withheld as working papers because they are no longer for personal or deliberative use of the Office of the Governor. Pursuant to subsection B of § 24.2-404, FOIA does not apply to records about individuals maintained in the voter registration system.

The letter signed by five members of a city council and presented to another council member in a closed meeting should have been voted on first in open session.

Informal opinion from the AG's office (authored by Opinions Counsel Tim Oksman) says that locally filed conflicts of interest forms cannot be redacted in response to a FOIA request.

A blanket prohibition against public comment at public meetings on "specific personnel or student concerns" and speech identifying school officials or employees violates free speech principles, as does a prohibition against all "personal attacks."

Circuit Court of Richmond Judge W. Allan Sharrett rules Hopewell cannot used a closed meeting to discuss whom to elect to the positions of mayor or vice mayor.

Harki v. Department of Criminal Justice Services: DCJS must turn over database of training records for law enforcement officers. Judge Joseph A. Migliozzi Jr. agrees that they are personnel records, but notes that the department said it would turn the records over (i.e., exercise their discretion to release records that could be withheld) and then reneged. The opinion also rejects the DCJS argument that it didn't own the database and that it really belonged to the individual law enforcement agencies that supplied the data.

Body worn and dashboard video recordings made by law enforcement are public records subject to FOIA. The application of exemptions from mandatory disclosure depends on the contents of the video. Duty to redact is in question following Virginia Supreme Court ruling in 2015.

Generally, FOIA does not prohibit the release of public records or the exercise of free speech. FOIA does not grant special rights to elected officials that differ from those of other Virginia citizens. Real estate appraisals may be withheld until the completion of a proposed purchase, sale, or lease.

The Virginia Supreme Court rules that a trial court must make its own determination of the property of withholding documents when a security interest is cited, but while doing so, it must accord "substantial weight" to the agency's (in the case, the Virginia Department of Corrections) determinations.

The court also holds that there is no duty to redact a record that is exempt under an exemption that is not limited by the phrases "to the extent" and "portions of."

(On this last point, the majority opinion does not even cite 2.2-3704 where it says one of the four allowable responses is to redact a record if it has exempt material in it.)

The Attorney General concluded on Sept. 4, 2015, that the Suffolk Wetlands Board does not have to permit public comment during meetings where public comment is not statutorily required. However, "because of the overarching importance of open government and free discussion with citizens," the AG says that "the Board may from time to time choose to permit public comment when public comment is not required."

A local governing body may not convene a closed meeting in order to discuss the salaries of the members pursuant to the personnel closed meeting exemption.

Meeting minutes must include a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. A verbatim transcript is not required. A public body has the discretion to include specific comments made at the meeting or not so long as the minutes include the required summary and record of votes.

A public body does not have to create a new record that does not already exist, but may abstract or summarize information under such terms and conditions as agreed between the requester and the public body. Clear and concise communications are critical when making and responding to requests.