Note: This page covers information specific to Virginia. For general information concerning access to government meetings see the Access to Government Meetings section of this guide.
The Virginia Freedom of Information Act, known as Virginia FOIA, provides the public with a right of access to the meetings of a large number of government bodies at the state and local level in Virginia. The law entitles you to notice of these meetings and gives you the ability to inspect and copy meeting minutes. For more detailed information about Virginia open meetings law, please consult the Virginia Freedom of Information Advisory Council's Access to Public Meetings Guide and the Reporters Committee for Freedom of the Press's Open Government Guide: Virginia.
What Meetings are Covered?
What Government Bodies Are Covered?
Virginia FOIA covers the meetings of "public bodies," defined as
any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.
Va. Code § 2.2-3701. This definition encompasses a large number of state and local boards, commissions, and agencies, as well as the both houses of the Virginia General Assembly. It also includes committees created by a public body to perform delegated functions or to act in an advisory capacity, whether or not private individuals are members. At the state level, examples of public bodies include the State Board of Education, the State Air Pollution Control Board, the Innovative Technology Authority, and the Virginia Commission for the Arts. For a representative list of state-level public bodies, see the Commonwealth Calendar. At the local level, examples include local boards of education, city councils, and county zoning boards, among many other public bodies exercising local government authority.
What is a Meeting?
In addition to determining what government bodies are covered by Virginia FOIA, you'll need to figure out which of their gatherings or activities constitute a "meeting" for purposes of the law (and therefore must be open to the public). Under Virginia FOIA, a "meeting" is any gathering of three or more members of a public body (or a quorum, if a quorum is less than three) to discuss or transact business of the public body. The law applies to all discussions, deliberations, and formal action. A gathering of employees of a public body, as opposed to members of the body, is not a meeting covered by Virginia FOIA.
A "meeting" does not include purely social and ceremonial gatherings, nor would it likely apply to an academic conference or similar event that members of a public body happened to attend. Virginia FOIA does not cover attendance of members of a public body at
- any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body; and
- a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting.
Va. Code § 2.2-3707(G). Along these lines, the Virginia Supreme Court has ruled that no "meeting" took place when city council members attended a meeting organized by citizens to discuss traffic and safety issues, when the city council had no business pertaining to traffic control before it at the time and was unlikely to address such issues in the future. See Beck v. Shelton, 593 S.E.2d 195 (Va. 2004).
State-level public bodies may hold meetings by telephone or video conference as long as a majority of members are physically present in one location and the public has access to all communications, among other requirements. Local government bodies generally may not do so. The Virginia Supreme Court has held that email communications between members of a public body do not constitute meetings unless there is an element of simultaneity present that makes the exchange similar to a telephone conversation. See Beck v. Shelton, 593 S.E.2d 195 (Va. 2004).
What Are Your Rights?
Virginia FOIA gives the public the right to attend the meetings of public bodies, with exceptions for closed sessions discussed below. Virginia law does not limit access to meetings to a specific category of people or a profession, such as "the traditional press." Anyone may attend. The right to attend meetings does not include the right to participate or comment.
The right to attend meetings is not necessarily meaningful without proper notice of those meetings. To address this issue, Virginia law requires public bodies to give notice of their meetings at least three working days before a meeting. The notice must contain the date, time, and location of the meeting, but an agenda is not required. If a state-level public body includes at least one member appointed by the Governor, the notice must also indicate whether or not public comment will be received at the meeting and, if so, the approximate point during the meeting when public comment will be received. Va. Code § 2.2-3707(C). Public bodies must post notice in "a prominent public location at which notices are regularly posted" and in the office of the clerk or chief administrator of the public body. State-level bodies must also post notice on their websites and the Commonwealth Calendar.
Public bodies must deliver notice directly to any person who files a written request for notification. When making a request for notification, you should provide the public body with your name, address, zip code, daytime telephone number, email address, and the name of your organization, if any. You need to renew the request annually. See Va. Code § 2.2-3707(E).
Other notice rules apply for special and emergency meetings. See the Open Government Guide: Virginia for details.
Minutes, Recordings, and Documents
Virginia FOIA requires public bodies, with a few exceptions discussed below, to record minutes of their meetings and to make them available to the public for inspection and copying. They may, but need not, make audio or video recordings of their meetings. If a public body chooses to do so, however, the recording is a public record that you can access just like ordinary minutes. State agencies in the executive branch that are subject to Virginia FOIA must post their minutes to the Commonwealth Calendar. See Va. Code § 2.2-3707.1.
Deliberations of the following public bodies need not be recorded in minutes: (1) committees of the General Assembly; (2) legislative interim study commissions and committees, including the Virginia Code Commission; (3) study committees or commissions appointed by the Governor; and (4) study commissions or study committees, or any other committees or subcommittees appointed by the governing body or school board of a county, city or town, except where the membership of the commission, committee or subcommittee includes a majority of the members of the governing body. See Va. Code § 2.2-3707(I).
In addition, the public is entitled to copies of agenda packets given to members at a meeting, and all other documents furnished to members. The public has a right to these documents at the same time they are furnished to members. See Va. Code § 2.2-3707(F).
Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body conducting the meeting may adopt rules governing the placement and use of recording equipment to prevent interference with the proceedings, but may not prohibit or otherwise prevent any person from recording any portion of a meeting required to be open. In addition, public bodies are prohibited from conducting a meeting required to be open in any building or facility where such recording devices are prohibited. Va. Code § 2.2-3707(H). For additional information on your ability to use recording devices in Virginia, see Virginia Recording Law.
An Exception: Closed Meetings or Sessions
The general rule is that all meetings of public bodies must be open to the public. If a public body wants to hold a closed or "executive" session, it must identify a specific statutory exemption. Under Virginia FOIA, a public body may hold a closed session when it is dealing with one of forty-four subject-area exemptions found in Va. Code § 2.2-3711. If a governing body is dealing with one of these enumerated subject areas, then it may hold a closed session, but it must also meet the following procedural requirements:
- The public body must affirmatively vote during an open meeting on a motion that
- identifies the subject matter of the closed meeting;
- states the purpose of the closed meeting; and
- makes explicit reference to the statutory exemption relied on to close the meeting.
- At the end of the closed meeting, the public body must reconvene in an open meeting and take a vote certifying that that they discussed only exempt subject matters identified in the previous motion.
- Decisions made in a closed meeting do not become official until the public body reconvenes in an open meeting following the proper procedure, reasonably identifies the substance of the decision, and takes a recorded vote on the decision agreed to in the closed meeting. Va Code § 2.2-3711(B). Any and all votes taken to authorize the transaction of any public business must be taken and recorded in an open meeting. Va. Code § 2.2-3710(A).
Public bodies are not required to record minutes for closed meetings.
What Are Your Remedies If You Are Denied Access?
If you believe that a public body has violated your rights, you can sue in state court. Under Virginia law, any person may file a lawsuit for violation of Virginia FOIA. If you succeed in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, that a public body satisfy its notice obligations, or that a public body provide access to minutes improperly withheld. In addition, if you go to court and win, a court generally must award you reasonable attorneys' fees and costs. Special rules about which district or circuit court you need to sue in are located in Va. Code § 2.2-3713(A)(1)-(3).
In the event that you are denied access to a meeting or class of meetings, you probably want to pursue an informal resolution before filing a lawsuit, which ordinarily is a costly and slow solution. You should contact the public body in question and inform it that you believe your rights have been violated and that you are willing to bring a legal action. You should submit your complaint in writing whenever possible. If the public body continues to deny your request for access, you should consider filing a lawsuit. There may be public interest organizations that would be willing to take on your case for free or for a reduced rate. Please see the Finding Legal Help section for details on finding legal representation.