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Virginia

Open Government Guide

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Author

Craig T. Merritt, Esquire
Merritt Law, PLLC
919 East Main Street
Suite 1000
Richmond, Virginia 23219
cmerritt@merrittfirm.com

David B. Lacy, Esquire
Christian & Barton, L.L.P.
901 East Cary Street
Suite 1800
Richmond, Virginia 23219
dlacy@cblaw.com

Last updated September 2021

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Foreword

The Virginia General Assembly enacted the Virginia Freedom of Information Act ("the Act") in 1968. It is subject to amendment annually by the General Assembly, with amendments becoming effective on July 1 of each year.

The stated purpose of the Act is to secure to the Commonwealth's citizens “ready access to public records” and “free entry to meetings of public bodies.” See Va. Code Ann. § 2.2-3700.B. The Act is to be "liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government." Moreover, the Act's exemptions are to "be narrowly construed.” Va. Code Ann. § 2.2-3700.B.

Virginia courts acknowledge the statutory rules of construction, but frequently abandon them. Virginia judges are often reluctant to provide a robust remedy under the Act such as an injunction or civil penalties unless a substantial and willful violation is proven.

Over the years, amendments to the Act have followed political and social priorities. After September 2001, the Act was subject to a flurry of law enforcement and security-driven amendments. Privacy-related amendments have consistently arisen, and rules relaxing the limitations on audio visual meetings were put in place after the 2020 COVID-19 pandemic. One area of inconsistency and opacity is the ever-expanding section concerning the protection of commercially sensitive information and trade secrets. Also of note is the exceptional secrecy with which the Act cloaks law enforcement operations.

Opinions of the Attorney General of Virginia do not bind the Virginia courts but can be considered by the courts as persuasive authority. They are occasionally, but not comprehensively, cited in this outline. The Office of the Attorney General’s website (https://www.oag.state.va.us) hosts opinions going back to 1996 and has a further search function powered by Westlaw.  The website functionality is not as good as that of a commercial legal research engine and should not be relied on for rigorous research. A substantial body of opinions has also been issued by the Virginia Freedom of Information Advisory Council (“Council”), created by the General Assembly in 2000, providing interpretations of the Act to citizens, including public officials and press representatives. The opinions of the Council do not bind the courts. They are available online at foiacouncil.dls.virginia.gov and are not cited in this outline. Anyone comprehensively researching an issue under the Act is well-served to search both Attorney General and Council opinions for relevant discussion of these statutes. Neither Attorney General opinions nor Council opinions are consistently marked by pro-access reasoning or outcomes.  For free access to the Code of Virginia in a well-organized format, and to legislation, use the Virginia Legislative Information System, http://leg1.state.va.us.

This outline addresses Virginia statutes effective on July 1, 2021.

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

a. Citizens of the Commonwealth: Any citizen of the Commonwealth may inspect records during the regular business hours of the custodian of records. A citizen is defined elsewhere in the Code of Virginia as one born in the Commonwealth who has not in good faith become a citizen of another state or one born in another state of this Union or an alien naturalized under the laws of the United States who may be or become a resident of the Commonwealth. The Supreme Court of the United States has held that limiting standing to make a request under the Act to citizens of Virginia does not violate the Privileges and Immunities Clause or the dormant Commerce Clause. McBurney v. Young, 569 U.S. 221, 133 S.Ct. 1709 (2013). Nothing in the Act prohibits a citizen from making a request on behalf of a non-citizen, as the requester is not required to explain or otherwise justify the request. The custodian may require the requester to provide his name and legal address. Va. Code Ann. § 2.2-3704.A.

b. Media: The Act specifically grants rights to “representatives of newspapers and magazines with circulation in the Commonwealth” and to “representatives of radio and television stations broadcasting in or into the Commonwealth.” Va. Code Ann. § 2.2-3704.A. Online-only media are not addressed but “newspapers and magazines” is not modified to suggest that the term is limited to hard-copy circulation.

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2. Purpose of request

Purpose and Motivation: The purpose or motivation behind a request is irrelevant to a citizen's entitlement to requested information. See Associated Tax Service v. Fitzpatrick, 236 Va. 181, 187, 372 S.E.2d 625, 629 (1988).

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3. Use of records

a. No Restriction on Use: The Act does not restrict the use of the information obtained.

b. Commercial Purposes: A request under the Act is not invalid because it is made for a purpose other than to monitor government operations. It is permissible for a citizen to secure information under the Act for commercial purposes. See Associated Tax Service v. Fitzpatrick, 236 Va. 181, 372 S.E.2d 625 (1988).

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4. Can an individual request records on behalf of a third party or organization?

The Act places no limitation on this activity. The remedial provisions of the Act recognize that a person may request public records through an attorney in a representative capacity.  See Va. Code Ann. § 2.2-3713.A.

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B. Whose records are and are not subject to the Act

The Act applies to “public records . . . prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.” Va. Code Ann. § 2.2-3701. “Public bodies”  are broadly defined to mean “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; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.”  It further includes “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.”  It does not “exclude any such committee, subcommittee or entity because it has private sector or citizen members.” Notably, the function of the entity and not its membership is the critical criterion. Constitutional officers and private police departments as defined in Virginia Code § 9.1-101 are within the definition of “public body” for purposes of access to public records and have the same obligations to disclose public records as other custodians of public records.  Corporations organized by the Virginia Retirement System are "public bodies" for the purposes of the Act, as is the Virginia Birth-Related Neurological Injury Compensation Program and its board of directors. Va. Code Ann. § 2.2-3701.

A list of public bodies categorically excluded from the operation of the Act is set forth in Va. Code Ann. § 2.2-3703.  The discussion in this Part I.B. does not identify excluded records, only entities to which the Act does not apply.

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1. Executive branch

The executive branch agencies excluded from coverage by the Act are: (a) the Virginia Parole Board, which is nonetheless required to make public certain specified information (b) family assessment and planning teams established pursuant to § 2.2-5207, and (c) the Virginia State Crime Commission.  Va. Code Ann. § 2.2-3703.A.1, 3, and 4.

The Virginia Parole Board language is convoluted, as it purports to exclude the agency entirely, but then lists records of the agency that include statistical summaries and guidance documents that must be available to the public.

There is no rational basis for any of these agencies to be excluded categorically from operation of the Act, as the objectives of the statute could be accomplished by allowing them, like all agencies, to be subject to the Act and excluding particularized sensitive records.

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2. Legislative bodies

All legislative bodies qualify as a “public body” subject to the Act.  However, a specific statute, Va. Code Ann § 2.2-3707.01, governs meetings of the General Assembly.  Floor sessions and meetings of standing or interim study committee and subcommittee meetings are open to the public, as are joint or conference committees where a quorum is present.  Other requirements are established by the Joint Rules Committee of the General Assembly. A party caucus is not a meeting subject to the Act.

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3. Courts

Petit juries and grand juries are specifically excluded from coverage under the Act. Va. Code Ann. § 2.2-3703.A.2.

Statutory provisions governing public access to court records, both case-related judicial records and non-case-related administrative records, are complex and require reference to several sources. The Act sets out a residual rule providing access to records maintained by clerks of court that are not expressly accessed under the statutes governing court records. See Va. Code Ann. § 2.2-3703.A.7. Broadly speaking, those records involve the administration of the courts but do not include specific case files or statistical materials relating to cases.

The courts of record in Virginia are its circuit courts (trial courts of general jurisdiction) and its two appellate courts, the Court of Appeals and the Supreme Court of Virginia. Circuit court clerks are charged with the maintenance of court records, both paper and electronic, that are deposited in their offices. Va. Code Ann. § 17.1-242. Public access to these records is governed by Va. Code Ann. § 17.1-208. That section, in turn, incorporates definitions of “confidential court records,” “court records,” and “nonconfidential court records” that appear in Va. Code Ann. § 17.1-292. Copying fees charged by circuit court clerks are governed by Va. Code Ann. § 17.1-275. Section 17.1-208 also has provisions governing access to aggregated case data maintained by the circuit court clerks and the Office of the Executive Secretary of the Supreme Court of Virginia, authorizing the imposition of costs for production, and restricting use of information provided.

The courts not of record are the general district courts and the juvenile and domestic relations courts. General district court record requirements are found at Va. Code Ann. § 16.1-69.53 et seq.  The provision governing access to general district court records is found at Va. Code Ann. § 16.1-69.54:1, which incorporates the same “confidential court records,” “court records,” and “nonconfidential court records” definitions as the circuit court statute. Juvenile and domestic relations district court access is governed by Va. Code Ann. § 16.1-306.

The Executive Secretary of the Supreme Court of Virginia maintains a publicly viewable online database of criminal case information including most of the circuit and general district courts as provided in Va. Code Ann. § 17.1-293.1.

Effective June 17, 2019, the Supreme Court of Virginia promulgated a new Part Eleven of the Rules of the Supreme Court of Virginia entitled “Access to Judicial Records.” It purports to cover in part the same subject matter as Va. Code § 2.2-3703.A.7 by governing access to administrative records of the judicial branch that are not associated with a particular case.  There are significant separation of powers issues implicated by this judicial legislation, but no case to date has raised those issues.

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4. Nongovernmental bodies

The Act’s definition of “public body” includes “organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.” Va. Code Ann. § 2.2-3701.  Whether an entity is supported “principally” by public funds is a question of fact. Wigand v. Wilkes, 65 Va. Cir. 437, 438 (Norfolk Cir. Ct. 2004).  Non-governmental organizations, corporations and agencies that are not supported principally by public funds are not "public bodies" under the Act and are not subject to its disclosure requirements. 1995 Va. Op. Atty Gen. 4 (January 9, 1995) (The General Assembly did not intend for the Act to apply to a private corporation receiving public funds to pay for property, goods, or services it provides, when that corporation is not supported wholly or principally by public funds.). The presence of a government official on the governing body of an entity does not make the entity a public body. A non-governmental body may fall within the definition of “public body” if it is performing a delegated function of a public body. See Va. Code Ann. § 2.2-3701.

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5. Multi-state or regional bodies

Such bodies are not statutorily exempt from coverage under the Act and fall within the definition of “public body.”

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6. Advisory boards and commissions, quasi-governmental entities

The Act’s definition of “public body” applies to any committee or subcommittee, or any other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. The presence of private sector or citizen members on such a body does not excuse the body from application of the Act. Va. Code Ann. § 2.2-3701.

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7. Others

A quasi-private foundation established by statute to conduct fundraising activities ancillary to the operations of a public university did not qualify as a public body under the Act.  Transparent GMU v. George Mason University, 298 Va. 222, 835 S.E.2d 544 (2019).

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C. What records are and are not subject to the act?

Every record falling within the definition of “public record” is covered by the Act if it is used in the transaction of public business.  Va. Code Ann. § 2.2-3701.

Unless a record is in the custody of an entity that does not fall within the definition of “public body,” or is categorically excluded from the operation of the Act under Va. Code Ann. § 2.2-3703, the record is subject to the Act.  Application of the Act to records maintained by the clerks of the courts is discussed above.

Records of the State Corporation Commission, an administrative body that is the “fourth branch” of Virginia government, have been held by the Supreme Court of Virginia to be excluded from the Act. Christian v. State Corporation Commission, 282 Va. 392, 718 S.E.2d 767 (2011).

Neither the Act nor Virginia case law addresses the application of the Act to records maintained by the judiciary concerning purely adjudicative functions, judicial case deliberations, or management of the court system. In 2019, the Supreme Court of Virginia, by order, promulgated a new Part Eleven of the Rules of the Supreme Court of Virginia, which purports to distinguish essentially inaccessible records of judicial officers from publicly accessible records of the Office of the Executive Secretary.  However, the scope of access to the Executive Secretary’s records is so weighted with exclusions from disclosure that it substantially precludes meaningful access to information about court operations.

There is frequent analytical confusion, including confusion by the courts, about the distinctions among (a) a record being “subject to” the Act (almost always the case), (b) a record being “exempt” from disclosure under the Act because a statute (such as a tax law) makes it strictly confidential and trumps the Act, and (c) a record being subject to discretionary withholding by a public body under one of the many “exclusions” set forth in the Act.

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1. What kinds of records are covered?

a. General Definition of Records: "Public records" are defined as "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." Va. Code Ann. § 2.2-3701. This broad definition has two features. First, it is without limit as to the format in which a subject record is maintained. Second, its true boundary is based on subject matter – the “transaction of public business.”

b. Existing Records: The Act applies only to records in existence and in custody of the public body at the time the request for official records is received. 1991 Va. Op. Atty. Gen. 13 (June 21, 1991). The Act does not require that a public body create or prepare a particular record if it does not already exist. See Va. Code Ann. § 2.2-3704.D.; see also Hale v. Washington, 241 Va. 76, 81, 400 S.E.2d 175 (1991); National Rural Utilities Cooperative Finance Corporation v. Greenlief, 27 Va. Cir. 140 (Fairfax Cir. Ct. 1992). However, the public body may summarize or abstract the information under terms and conditions agreed upon by the requester and the public body. Va. Code Ann. § 2.2-3704.D.

c. Types of Records: All types of records are covered.

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2. What physical form of records are covered

All physical forms of records are covered.

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3. Are certain records available for inspection but not copying?

No, there is no distinction with respect to what may be copied and what may be inspected. The Act provides that access to public records shall be provided “by inspection or by providing copies . . . at the option of the requestor.” Va. Code Ann. § 2.2-3704.A.

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4. Telephone call logs

This is not directly addressed by statute, but call logs fall within the definition of “public record.”  In a decision that purported to address the Governor’s working papers provision of the Act, but was decided on separation of powers grounds, the Virginia Supreme Court held that an itemized list of long distance calls placed by the Governor’s office was not subject to public access under the Act.  Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991).

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5. Electronic records (e.g., databases, metadata)

Electronic records are covered by the Act.

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a. Can the requester choose a format for receiving records?

The Act provides generally that access shall be provided by inspection or copying, at the requestor’s option. Va. Code Ann. § 2.2-3704.A.  If nonexempt records are maintained in an electronic database, the public body shall produce them in any tangible medium identified by the requester if that medium is used by the public body in the regular course of business. Va. Code Ann. § 2.2-3704.G.

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Public bodies must produce nonexempt computer records but are not required to use a format not regularly utilized by the producing body. They must make reasonable efforts to produce information as agreed to with the requester at a reasonable cost. Excision of exempt data fields or conversion from one available format to another do not constitute the otherwise prohibited creation of a new record. Va. Code Ann. § 2.2-3704.G.  The statute implies that a requester may identify desired data fields.  Note that this Code section reflects the Act’s inconsistent use of the word “exempt” where it likely intends to refer to the discretionary “exclusion” of information.

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c. Does the existence of information in electronic format affect its openness?

No. Official records maintained by a public body on a computer or other electronic data processing system shall be made available to the public at reasonable costs, not to exceed the actual cost of providing the information. Va. Code Ann. § 2.2-3704.G.

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d. Online dissemination

If nonexempt records are maintained in an electronic database, the public body shall produce them in any tangible medium identified by the requester, including posting the records on a website or delivering them through email. Va. Code Ann. § 2.2-3704.G.

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6. Email

Electronic records are covered by the Act.

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7. Text messages and other electronic messages

Text messages are covered by the Act.

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8. Social media posts

Social media posts are covered by the Act.

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9. Computer software

Computer software falls within the definition of “public record.” Vendor proprietary information software acquired from a vendor for data processing use in the possession of a public body is subject to exclusion from disclosure. Va. Code Ann. § 2.2-3705.1.6. Computer software developed by or for a state agency, public institution of higher education or political subdivision is subject to exclusion. Va. Code Ann. § 2.2-3705.1.7.

Metadata has no special treatment by statute.

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10. Can a requester ask for the creation or compilation of a new record?

“[N]o public body shall be required to create a new record if the record does not already exist. However, a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body.” Va. Code Ann. § 2.2-3704.D. “The excision of exempt fields of information from a database or the conversion of data from one available format to another shall not be deemed the creation, preparation, or compilation of a new public record.” Va. Code Ann. § 2.2-3704.G.

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D. Fee provisions

Section 2.2-3704.F. provides: “A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. Any duplicating fee charged by a public body shall not exceed the actual cost of duplication. The public body may also make a reasonable charge for the cost incurred in supplying records produced from a geographic information system at the request of anyone other than the owner of the land that is the subject of the request. However, such charges shall not exceed the actual cost to the public body in supplying such records, except that the public body may charge, on a pro rata per acre basis, for the cost of creating topographical maps developed by the public body, for such maps or portions thereof, which encompass a contiguous area greater than 50 acres. All charges for the supplying of requested records shall be estimated in advance at the request of the citizen. The period within which the public body shall respond under this section shall be tolled for the amount of time that elapses between notice of the cost estimate and the response of the requester. If the public body receives no response from the requester within 30 days of sending the cost estimate, the request shall be deemed to be withdrawn.”

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

Fees Limited to Cost: A public body may impose a “reasonable charge not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records.” A public body may not “impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body.” Va. Code Ann. § 2.2-3704.F. These limits apply equally to records maintained on a computer or other data processing system. Va. Code Ann. § 2.2-3704(G); see generally 1989 Va. Op. Att’y. Gen. 12 (February 21, 1989) (Town may not charge newspaper reporter for the salary of town employee whose sole function for the time charged was to watch the reporter as he inspected the minutes of the town council). Note the special provision in the Act for the costs of creating topographical maps from geographical information systems, a process that has been largely replaced by the availability of electronic mapping. Va. Code Ann. § 2.2-3704.F.

Estimates: An advance cost estimate must be provided if requested by the citizen. Va. Code Ann. § 2.2-3704.F.

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2. Particular fee specifications or provisions

None.

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3. Provisions for fee waivers

There is no statutory provision addressing waiver of fees.  In practice fees frequently are not imposed for small requests.

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4. Requirements or prohibitions regarding advance payment

If the public body determines in advance that search and copying charges are likely to exceed $200.00, the public body may require the citizen to pay, before processing the request, a deposit not to exceed the amount of the advance determination. The deposit shall be credited toward the final cost of supplying the records.  The period for response to a request is tolled until the requester responds to the advance payment demand. Va. Code Ann.§ 2.2-3704.H. If the requester does not respond to an advance payment demand within thirty days, the request is deemed withdrawn. Before processing a request for records, a public body may require the requester to pay any amounts owed to the public body for previous requests for records that remain unpaid 30 days or more after billing. Va. Code Ann. § 2.2-3704.I.

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5. Have agencies imposed prohibitive fees to discourage requesters?

This behavior is encountered on occasion, often at the local government level and often aimed at requesters who lack the resources to challenge a prohibitive fee estimate.

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6. Fees for electronic records

Section 2.2-3704.G. of the Act provides in relevant part that “the public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs.”

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E. Who enforces the Act?

Any person, including the attorney for the Commonwealth (in Virginia this is the local prosecutor) acting in his official or individual capacity, denied the rights and privileges conferred by the Act may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction. Va. Code Ann. § 2.2-3713.A.

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1. Attorney General's role

The Attorney General has no role in enforcement of the Act.  The Office of the Attorney General appears in the defense of state public bodies charged with violations of the Act.

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2. Availability of an ombudsman

None.

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3. Commission or agency enforcement

None.

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F. Are there sanctions for noncompliance?

A requester may seek to enforce compliance with the Act by bringing a proceeding pursuant to § 2.2-3713 seeking mandamus or an injunction. In a proceeding commenced under § 2.2-3713 against members of a public body for a violation of § § 2.2-3704, 2.2-3705.1 through 2.2-3705.7, 2.2-3706, 2.2-3706.1, 2.2-3707, 2.2-3708.2, 2.2-3710, 2.2-3711 or § 2.2-3712.The court, if it finds that a violation was willfully and knowingly made, shall impose upon such officer, employee or member in his individual capacity, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $500 nor more than $2,000, which amount shall be paid into the State Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $2,000 nor more than $5,000. Va. Code Ann. § 2.2-3714. If the court finds that any officer, employee, or member of a public body altered or destroyed the requested public records with the intent to avoid the provisions of the Act prior to the expiration of the applicable record retention period set by the retention regulations promulgated pursuant to the Virginia Public Records Act (§ 42.1-76et seq.) by the State Library Board, the court may impose upon such officer, employee, or member in his individual capacity, whether or not a writ of mandamus or injunctive relief is awarded, a civil penalty of up to $100 per record altered or destroyed, which amount shall be paid into the State Literary Fund.

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G. Record-holder obligations

The Act imposes no special obligations on record holders other than to timely search for records and produce them or specify the reasons for non-production of responsive materials.

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1. Search obligations

The custodian of a requested record must promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester, or make one of four responses detailed in Va. Code Ann. § 2.203704.B.

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2. Proactive disclosure requirements

The organic laws of certain agencies require that they periodically disclose statistical, financial, or other information.  An exhaustive listing of these statutes is beyond the scope of this guide.  Generally, the laws establishing state agencies may be found in Title 2.2 of the Code of Virginia, and the governance and operation of each agency will be detailed in the Virginia Code title relevant to the agency’s subject matter. Title 15.2 of the Code of Virginia governs counties, cities and towns.  Some public bodies, depending on their budgets and sophistication, may publish information on a website, but the quality of public body websites in Virginia varies and the information may not be current.

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3. Records retention requirements

Record retention requirements are governed comprehensively by the Virginia Public Records Act, Va. Code Ann. § 42.1-76, et seq.  The Library of Virginia generally oversees the permanent archiving of public records. Va. Code Ann. § 42.1-79.

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4. Provisions for broad, vague, or burdensome requests

“A request for public records shall identify the requested records with reasonable specificity.” Va. Code Ann. § 2.2-3704.B. If a response cannot be made within the five-day period that is the default deadline under the Act, the public body may trigger an additional seven business-day period to respond by specifying in writing the conditions that make a timely response impossible. The exception is a records request under Va. Code Ann. §2.2-3706.1 for criminal investigative files, where the public body may trigger an additional 60-day period for making a response to a request. Va. Code Ann § 2.2-3704.B.4.

 

If the public body wants time beyond the statutory extension period, and after making reasonable efforts to reach an agreement with the requester concerning the production of records, the public body may petition the court for additional time “when the request is for an extraordinary volume of records or requires an extraordinarily lengthy search,” and a response within the indicated deadlines will prevent the public body from meeting its operational responsibilities. Va. Code Ann § 2.2-3704.C.

 

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A. Exemptions in the open records statute

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1. Character of exemptions

It is critically important to understand the structure of the Act, as there is frequent confusion about the basis for withholding public records.  The open records provisions of the Act are not based on “exemptions” in the common legal sense of the word.  An “exemption” typically would connote the categorical removal of a class of records from public disclosure based on its content or subject matter.  That is not the case in Virginia.

The Act, although its use of terminology is imprecise, is structured to provide “exclusions” rather than “exemptions.”  Thus, unless there is a federal or state statute or other source of law operating outside of the Act that flatly prohibits the disclosure of information, the Act is structured around discretionary release or withholding of records, in whole or in part. “Exclusion” is a term of art with a special meaning in the Act. It means that  a record may be withheld, in whole or in part, in the discretion of the public body, if the information embodied in the record falls within the subject matter identified in the exclusion. The Supreme Court of Virginia, however, did not interpret the General Assembly’s intention to use “exclusion” as a term of art to indicate discretionary rather than mandatory withholding, holding in 2014 that for purposes of the Act there is no practical distinction between the terms “exemption” and “exclusion.”  Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 334 n.1, 756 S.E.2d 435 (2014).

“Exclusions” from the Act, other than those relating to law enforcement, are found at Va. Code Ann. §§ 2.2-3705.1 through 3705.7, with each statute purporting to gather exclusions relating to a particular topic. Each of these Code sections is introduced by the same verbal formula: “The following information contained in a public record is excluded from the mandatory disclosure provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law. Redaction of information excluded under this section from a public record shall be conducted in accordance with § 2.2-3704.01.”

This structure has both positive and negative aspects.  In the absence of a strict prohibition on release of information,  these exclusions by their plain language permit the exercise of discretion to release information. This creates the opportunity to argue that a public body abused its discretion in failing to grant access to a requested record.  As a practical matter, public bodies in Virginia regularly treat these discretionary exclusions as rigid exemptions, and exercise their discretion to deny public access.

The original impulse behind requiring agency-specific and narrowly tailored exclusions was to avoid the vagueness and overbreadth of the exemptions in the federal Freedom of Information Act.  Over time, this well-intentioned approach has led to a proliferation of exclusions, many of which are both repetitive and opaque with inconsistent words and phrases being used to accomplish objectives that appear to be legally  indistinguishable.

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2. Discussion of each exemption

Effective July 1, 2021, (excluding provisions relating to criminal law enforcement found in Va. Code Ann. § 2.2-3706 and 3706.1) there are 136 exclusions for public records located in seven different statutes organized loosely by subject matter. Some exclusions straddle subject matter categories and their assignment to a particular Code section is arbitrary.
This subsection II.A.2 strictly follows the organization of the Act. Section 2.2-3705.1 addresses exclusions of general application (subparts a. through m. below); § 2.2-3705.2 addresses exclusions relating to public safety (subparts n. through bb. below); § 2.2-3705.3 addresses exclusions relating to administrative investigations (subparts cc. through oo. below);§ 2.2-3705.4 addresses exclusions relating to education and educational institutions (subparts pp. through xx. below);§ 2.2-3705.5 addresses exclusions relating to health and social services (subparts yy. through nnn. below); § 2.2-3705.6 addresses exclusions relating to proprietary records and trade secrets (subparts ooo. through wwww. below); and § 2.2-3705.7 addresses miscellaneous exclusions not otherwise categorized (subparts xxxx. through iiiiii. below).
The descriptions of each subsection below paraphrase and summarize statutory language; the reader must refer to the Code of Virginia for exact and unedited statutory language. This outline should not be relied on for accurate citation to statutory language.

a. Personnel information: Personnel information concerning identifiable individuals, except that access may not be denied to the person who is the subject of the information. Person above age 18 may waive this protection in writing. § 2.2-3705.1.1.

b. Advice of counsel: Written advice of legal counsel to state, regional or local public bodies or the officers or employees of those bodies and any other information protected by the attorney-client privilege. Va. Code Ann. § 2.2-3705.1.2.

c. Litigation work product: Legal memoranda and other work product compiled specifically for litigation or as a part of an active administrative investigation concerning a matter that is properly the subject of a closed meeting under § 2.2-3711. Va. Code Ann. § 2.2-3705.1.3. See Bergano v. City of Virginia Beach, 296 Va. 403, 821 S.E.2d 319 (2018) (requiring in camera review and redaction of City’s legal bills to exclude privileged or work product protected entries).

d. Employment and Student Examination Records: Any test or examination used, administered or prepared by any public body for purposes of evaluation of (i) any student or any student's performance (ii) any employee or employment seeker's qualifications or aptitude for employment, retention, or promotion, or (iii) qualifications for any license or certificate issued by any public body. The subject of such employment tests, however, shall be entitled to review and inspect all records relative to his performance on such employment tests. The test shall be made available when, in the reasonable opinion of such public body, it no longer has any potential for future use and will not jeopardize future tests or exams. Va. Code Ann. § 2.2-3705.1.4.

e. Records of Closed Meetings: Records recorded in or compiled exclusively for closed meetings lawfully held pursuant to§ 2.2-3711. Va. Code Ann.§ 2.2-3705.1.5.

f. Vendor Computer Programs: Vendor proprietary information software, acquired to process data for agencies or political subdivisions. Va. Code Ann. § 2.2-3705.1.6.

g. Computer Software Developed by Public Bodies: Computer software developed by or for a state agency, public institution of higher education or political subdivision of the Commonwealth. Va. Code Ann. § 2.2-3705.1.7.

h. Appraisals and Cost Estimates of Real Property: Appraisals and cost estimates of real property subject to a proposed purchase, sale, or lease, prior to the completion of such purchase, sale, or lease. Va. Code Ann. § 2.2-3705.1.8.

i. Claims and claim reserves: Records concerning reserves established in specific claims administered by the Department of the Treasury through its Division of Risk Management as provided in Article 5 (§ 2.2-1832 et seq.) of Chapter 18 of this title, or by any county, city, or town; and investigative notes, correspondence and information furnished in confidence with respect to an investigation of a claim or a potential claim against a public body's insurance policy or self-insurance plan. However, nothing in this subdivision prohibits the disclosure of information taken from inactive reports upon expiration of the period of limitations for the filing of a civil suit. Va. Code Ann. § 2.3705.1.9.

j. Personal contact information and email addresses: Personal contact information (address, email address, telephone number) furnished to a public body for the purpose of receiving electronic mail from the public body, unless the electronic mail recipient has indicated his approval for the public body to disclose such information. However, access shall not be denied to the subject of the record. Va. Code Ann. § 2.2-3705.1.10.

k. Virginia Administrative Dispute Resolution Act: Communications and materials required to be kept confidential pursuant to § 2.2-4119 of the Virginia Administrative Dispute Resolution Act (§ 2.2-4115 et seq.). Va. Code Ann. § 2.2-3705.1.11.

l. Negotiation and award of a specific contract: Information relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body. Such records shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act (§ 2.2-4300 et seq.), the provisions of this subdivision shall not apply, and any release of records relating to such transactions shall be governed by the Virginia Public Procurement Act. Va. Code Ann. § 2.2-3705.1.12.

m. Financial account information: Account numbers or routing information for any credit or debit card, or account with a financial institution, subject to access by the person who is the subject of the information. § 2.2-3705.1.13.

n. Rape or Battered Spouses Records: Confidential information, including victim identity, provided to or obtained by staff in a rape crisis center or a program for battered spouses. Va. Code Ann. § 2.2-3705.2.1.

o. Data Processing Security: Information that describes design, function, operation or access control features of any security system used to control access to or use of any automated data processing or telecommunications system. Va. Code Ann. § 2.2-3705.2.2.

p. Railway Safety: Information disclosing security aspects of plan adopted pursuant to federal regulation by the Commonwealth’s designated Rail Fixed Guideway Systems Safety Oversight Agency, the release of which would jeopardize an ongoing investigation of a rail accident or other incident threatening railway safety. Va. Code Ann. § 2.2-3705.2.3.

q. School safety audits: Information concerning security plans and specific assessment components of school safety audits, as provided in § 22.1-279.8. Disclosure of information may be made after (i) any school building or property has been subjected to fire, explosion, natural disaster, or other catastrophic event or (ii) any person on school property has suffered or been threatened with any personal injury. Va. Code Ann. §2.2-3705.2.4.

r. Sexual Predator Mental Assessments: Information concerning the mental health assessment of an individual subject to commitment as a sexually violent predator under Chapter 9 (§ 37.2-900 et seq.) of Title 37.2 held by the Commitment Review Committee. Information identifying the victims of a sexually violent predator may not be disclosed. Va. Code Ann. §2.2-3705.2.5.

s. E-911 Subscriber Data from Provider: Subscriber data provided directly or indirectly by a communications services provider to a public body that operates a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system if the data is in a form not made available by the communications services provider to the public generally. This does not bar the disclosure of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester seeks public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code Ann. §2.2-3705.2.6.

t. E-911 Subscriber Data Held by Public Body: Subscriber data collected by a local governing body in accordance with the Enhanced Public Safety Telephone Services Act (§ 56-484.12 et seq.) and other identifying information of a personal, medical, or financial nature provided to a local governing body in connection with a 911 or E-911 emergency dispatch system or an emergency notification or reverse 911 system if such records are not otherwise publicly available. This does not prevent the disclosure of subscriber data generated in connection with specific calls to a 911 emergency system, where the requester is seeking to obtain public records about the use of the system in response to a specific crime, emergency or other event as to which a citizen has initiated a 911 call. Va. Code Ann. §2.2-3705.2.7.

u. Military Base Closure Information: Information held by the Virginia Military Advisory Council or any commission created by executive order for the purpose of studying and making recommendations regarding preventing closure or realignment of federal military and national security installations and facilities located in Virginia and relocation of such facilities to Virginia, or a local or regional military affairs organization appointed by a local governing body, that would (i) reveal strategies under consideration or development by the Council or such commission or organizations to prevent the closure or realignment of federal military installations located in Virginia or the relocation of national security facilities located in Virginia, to limit the adverse economic effect of such realignment, closure, or relocation, or to seek additional tenant activity growth from the Department of Defense or federal government or (ii) disclose trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided to the Council or such commission or organizations in connection with their work. Submitting entity must follow procedure to invoke trade secret status at time of submission to public body. The subsection does not bar disclosure of all or part of any record, other than a trade secret that has been specifically identified, after the Department of Defense or federal agency has issued a final, unappealable decision, or a court of competent jurisdiction has entered a final, unappealable order concerning the closure, realignment, or expansion of the military installation or tenant activities, or the relocation of the national security facility, for which records are sought. Va. Code Ann. §2.2-3705.2.8.

v. Financial System Internal Controls: Information, as determined by the State Comptroller, that describes the design, function, operation, or implementation of internal controls over the Commonwealth's financial processes and systems, and the assessment of risks and vulnerabilities of those controls, including the annual assessment of internal controls mandated by the State Comptroller, if disclosure of such information would jeopardize the security of the Commonwealth's financial assets. Does not bar the release of records relating to the investigation of and findings concerning the soundness of any fiscal process, nor does it prohibit the Auditor of Public Accounts or the Joint Legislative Audit and Review Commission from reporting internal control deficiencies discovered during the course of an audit. Va. Code Ann. §2.2-3705.2.9.

w. Public Safety Communications System: Information relating to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system that (i) describes the design, function, programming, operation, or access control features of the overall system, components, structures, individual networks, and subsystems of the STARS or any other similar local or regional communications system or (ii) relates to radio frequencies assigned to or utilized by STARS or any other similar local or regional communications system, code plugs, circuit routing, addressing schemes, talk groups, fleet maps, encryption, or programming maintained by or utilized by STARS or any other similar local or regional public safety communications system. Va. Code Ann. §2.2-3705.2.10.

x. Fire/EMS Pager and Telephone Numbers: Information concerning a salaried or volunteer Fire/EMS company or Fire/EMS department if disclosure of such information would reveal the telephone numbers for cellular telephones, pagers, or comparable portable communication devices provided to its personnel for use in the performance of their official duties. Va. Code Ann. §2.2-3705.2.11.

y. Hospital and Nursing Home Disaster Plans: Information concerning the disaster recovery plans or the evacuation plans in the event of fire, explosion, natural disaster, or other catastrophic event for hospitals and nursing homes regulated by the Board of Health pursuant to Chapter 5 (§ 32.1-123 et seq.) of Title 32.1 provided to the Department of Health. This does not prevent the disclosure of information relating to the effectiveness of executed evacuation plans after the occurrence of fire, explosion, natural disaster, or other catastrophic event. Va. Code Ann. §2.2-3705.2.12.

z. Higher Education Security and Threat Assessment: Records received by the Department of Criminal Justice Services pursuant to §§ 9.1-184, 22.1-79.4, and 22.1-279.8 or for purposes of evaluating threat assessment teams established by a public institution of higher education pursuant to § 23.1-805 or by a private nonprofit institution of higher education, to the extent such records reveal security plans, walk-through checklists, or vulnerability and threat assessment components. Va. Code Ann. § 2.2-3705.2.13.
aa. Critical Infrastructure, Cybersecurity and Threat Assessment: Information contained in (i) engineering, architectural, or construction drawings; (ii) operational, procedural, tactical planning, or training manuals; (iii) staff meeting minutes; or (iv) other records that reveal any of the following, the disclosure of which would jeopardize the safety or security of any person; governmental facility, building, or structure or persons using such facility, building, or structure; or public or private commercial office, multifamily residential, or retail building or its occupants:

• Critical infrastructure information or the location or operation of security equipment and systems of any public building, structure, or information storage facility, including ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, or utility equipment and systems;
• Vulnerability assessments, information not lawfully available to the public regarding specific cybersecurity threats or vulnerabilities, or security plans and measures of an entity, facility, building structure, information technology system, or software program;
• Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or
• Interconnectivity, network monitoring, network operation centers, master sites, or systems related to the Statewide Agencies Radio System (STARS) or any other similar local or regional public safety communications system.
A private entity submitting this category of information to a public body may seek protection at the time of submission by following the protocol laid out in the statute. Its submission statement shall be a public record and shall be disclosed upon request.
Any public body receiving a request for records excluded under clauses (a) and (b) above must notify the Secretary of Public Safety and Homeland Security or his designee of such request and the response made by the public body in accordance with § 2.2-3704.
This subdivision does not prevent the disclosure of records relating to (1) the structural or environmental soundness of any such facility, building, or structure or (2) an inquiry into the performance of such facility, building, or structure after it has been subjected to fire, explosion, natural disaster, or other catastrophic event. Va. Code Ann. §2.2-3705.2.14.
bb. Commercial Space Flight Authority National Security: Information held by the Virginia Commercial Space Flight Authority that is categorized as classified or sensitive but unclassified, including national security, defense, and foreign policy information, provided that such information is exempt under the federal Freedom of Information Act, 5 U.S.C. § 552. Va. Code Ann. §2.2-3705.2.15.

cc. Certain Licensee and Permit Application Information: Information relating to investigations of applicants for licenses and permits, and of all licensees and permittees, made by or submitted to the Virginia Alcoholic Beverage Control Authority, the Virginia Lottery, the Virginia Racing Commission, the Department of Agriculture and Consumer Services relating to investigations and applications pursuant to Article 1.1:1 (§ 18.2-340.15 et seq.) of Chapter 8 of Title 18.2, or the Private Security Services Unit of the Department of Criminal Justice Services. Va. Code Ann. § 2.2-3705.3.1.

dd. Health Regulatory Investigations: Records of active investigations being conducted by the Department of Health Professions or by any health regulatory board in the Commonwealth pursuant to § 54.1-108. Va. Code Ann. § 2.2-3705.3.2.

ee. Employment Discrimination Complaints: Investigator notes, and other correspondence and information, furnished in confidence with respect to an active investigation of individual employment discrimination complaints made to the Department of Human Resource Management, to such personnel of any local public body, including local school boards, as are responsible for conducting such investigations in confidence, or to any public institution of higher education. This does not prevent the disclosure of information taken from inactive reports in a form that does not reveal the identity of charging parties, persons supplying the information, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.3.3.

ff. DMAS Medicaid Investigations: Records of active investigations being conducted by the Department of Medical Assistance Services pursuant to Chapter 10 (§ 32.1-323 et seq.) of Title 32.1. Va. Code Ann. § 2.2-3705.3.4.

gg. Human Rights Act Investigations: Investigative notes and other correspondence and information furnished in confidence with respect to an investigation or conciliation process involving an alleged unlawful discriminatory practice under the Virginia Human Rights Act (§ 2.2-3900 et seq.) or under any local ordinance adopted in accordance with the authority specified in § 2.2-524, or adopted pursuant to § 15.2-965, or adopted prior to July 1, 1987, in accordance with applicable law, relating to local human rights or human relations commissions. This does not prevent the distribution of information taken from inactive reports in a form that does not reveal the identity of the parties involved or other persons supplying information. Va. Code Ann. § 2.2-3705.3.5.

hh. Virginia Lottery Investigations: Information relating to studies and investigations by the Virginia Lottery of (i) lottery agents, (ii) lottery vendors, (iii) lottery crimes under §§ 58.1-4014 through 58.1-4018, (iv) defects in the law or regulations that cause abuses in the administration and operation of the lottery and any evasions of such provisions, or (v) the use of the lottery as a subterfuge for organized crime and illegal gambling where such information has not been publicly released, published or copyrighted. All studies and investigations referred to under clauses (iii), (iv), and (v) are open to inspection and copying upon completion of the study or investigation. Va. Code Ann. § 2.2-3705.3.6.

ii. Auditors and Whistle-blowers: Investigative notes, correspondence and information furnished in confidence, and records otherwise exempted by the Act or any Virginia statute, provided to or produced by or for (i) the Auditor of Public Accounts; (ii) the Joint Legislative Audit and Review Commission; (iii) an appropriate authority as defined in § 2.2-3010 with respect to an allegation of wrongdoing or abuse under the Fraud and Abuse Whistle Blower Protection Act (§ 2.2-3009 et seq.); (iv) the Office of the State Inspector General with respect to an investigation initiated through the Fraud, Waste and Abuse Hotline or an investigation initiated pursuant to Chapter 3.2 (§ 2.2-307 et seq.); (v) internal auditors appointed by the head of a state agency or by any public institution of higher education; (vi) the committee or the auditor with respect to an investigation or audit conducted pursuant to § 15.2-825; or (vii) the auditors, appointed by the local governing body of any county, city, or town or a school board, who by charter, ordinance, or statute have responsibility for conducting an investigation of any officer, department, or program of such body. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of the complainants or persons supplying information to investigators. Unless disclosure is excluded by this subdivision, the information disclosed shall include the agency involved, the identity of the person who is the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation does not lead to corrective action, the identity of the person who is the subject of the complaint may be released only with the consent of the subject person. Local governing bodies shall adopt guidelines to govern the disclosure required by this subdivision. Va. Code Ann. § 2.2-3705.3.7.

jj. Zoning and Code Violation Complainants: The names, addresses, and telephone numbers of complainants furnished in confidence with respect to an investigation of individual zoning enforcement complaints or complaints relating to the Uniform Statewide Building Code (§ 36-97 et seq.) or the Statewide Fire Prevention Code (§ 27-94 et seq.) made to a local governing body. Code Ann. § 2.2-3705.3.8.

kk. DCJS Investigations of Security Services and Bail Bondsmen: Records of active investigations being conducted by the Department of Criminal Justice Services pursuant to Article 4 (§ 9.1-138 et seq.), Article 4.1 (§ 9.1-150.1 et seq.), Article 11 (§ 9.1-185 et seq.), and Article 12 (§ 9.1-186 et seq.) of Chapter 1 of Title 9.1. Va. Code Ann. § 2.2-3705.3.9.

ll. School Board Security Investigations: Information furnished to or prepared by the Board of Education pursuant to subsection D of § 22.1-253.13:3 in connection with the review or investigation of any alleged breach in security, unauthorized alteration, or improper administration of tests by local school board employees responsible for the distribution or administration of the tests. However, this section shall not prohibit the disclosure of such information to (i) a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee or (ii) any requester, after the conclusion of a review or investigation, in a form that (a) does not reveal the identity of any person making a complaint or supplying information to the Board on a confidential basis and (b) does not compromise the security of any test mandated by the Board. Va. Code Ann. § 2.2-3705.3.10.

mm. School Personnel Applications and Investigations: Information contained in (i) an application for licensure or renewal of a license for teachers and other school personnel, including transcripts or other documents submitted in support of an application, and (ii) an active investigation conducted by or for the Board of Education related to the denial, suspension, cancellation, revocation, or reinstatement of teacher and other school personnel licenses including investigator notes and other correspondence and information, furnished in confidence with respect to such investigation. This does not prohibit the disclosure of such (a) application information to the applicant at his own expense or (b) investigation information to a local school board or division superintendent for the purpose of permitting such board or superintendent to consider or to take personnel action with regard to an employee. Information contained in completed investigations shall be disclosed in a form that does not reveal the identity of any complainant or person supplying information to investigators. The completed investigation information disclosed shall include information regarding the school or facility involved, the identity of the person who was the subject of the complaint, the nature of the complaint, and the actions taken to resolve the complaint. If an investigation fails to support a complaint or does not lead to corrective action, the identity of the person who was the subject of the complaint may be released only with the consent of the subject person. No personally identifiable information regarding a current or former student shall be released except as permitted by state or federal law. Va. Code Ann. § 2.2-3705.3.11.

nn. Attorney General Investigations of Tobacco Marketing and RICO: Information provided in confidence and related to an investigation by the Attorney General under Article 1 (§ 3.2-4200 et seq.) or Article 3 (§ 3.2-4204 et seq.) of Chapter 42 of Title 3.2, Article 10 (§ 18.2-246.6 et seq.) of Chapter 6 or Chapter 13 (§ 18.2-512 et seq.) of Title 18.2, or Article 1 (§ 58.1-1000) of Chapter 10 of Title 58.1. Information related to an investigation that has been inactive for more than six months shall, upon request, be disclosed provided such disclosure is not otherwise prohibited by law and does not reveal the identity of charging parties, complainants, persons supplying information, witnesses, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.3.12.

oo. Investigations Concerning Person Receiving Behavioral Health Services: Records of active investigations conducted by the Department of Behavioral Health and Developmental Services concerning patient rights. Va. Code Ann. § 2.2-3705.3.13.

pp. Scholastic records: Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute. The custodian of a scholastic record shall not release the address, phone number, or email address of a student in response to a request made under the Act without written consent. For any student who is (i) 18 years of age or older, (ii) under the age of 18 and emancipated, or (iii) attending an institution of higher education, written consent of the student shall be required. For any other student, written consent of the parent or legal guardian of the student shall be required.
The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by his legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.
Any person who is the subject of any scholastic record and who is 18 years of age or older may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, such records shall be disclosed. Va. Code Ann. § 2.2-3705.4.A.1.
qq. Recommendation Letters: Confidential letters and statements of recommendation placed in the records of educational agencies or institutions respecting (i) admission to any educational agency or institution, (ii) an application for employment or promotion, or (iii) receipt of an honor or honorary recognition. Va. Code Ann. § 2.2-3705.4.A.2.

rr. Brown v. Board Scholarship Committee: Information held by the Brown v. Board of Education Scholarship Committee that would reveal personally identifiable information, including scholarship applications, personal financial information, and confidential correspondence and letters of recommendation. Va. Code Ann. § 2.2-3705.4.A.3.

ss. Higher Education Research: Information of a proprietary nature produced or collected by or for faculty or staff of public institutions of higher education, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such information has not been publicly released, published, copyrighted or patented. Applied in Am. Tradition Inst. v. Rector & Visitors of the Univ. of Va., 287 Va. 330, 756 S.E.2d 435 (2014) (construing the word “proprietary”). Va. Code Ann. § 2.2-3705.4.A.4.

tt. Competitively Sensitive Health Care Delivery Information: Information held by the University of Virginia or the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, that contain proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, including business development or marketing strategies and activities with existing or future joint venturers, partners, or other parties with whom the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, has formed, or forms, any arrangement for the delivery of health care, if disclosure of such information would be harmful to the competitive position of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be. Va. Code Ann. § 2.2-3705.4.A.5.

uu. Personal Information in College Savings Plan or Trust Account: Personal information, as defined in § 2.2-3801, provided to the Board of the Virginia College Savings Plan or its employees by or on behalf of individuals who have requested information about, applied for, or entered into prepaid tuition contracts or savings trust account agreements pursuant to Chapter 7 (§ 23.1-700 et seq.) of Title 23.1, including personal information related to (i) qualified beneficiaries as that term is defined in § 23.1-700, (ii) designated survivors, or (iii) authorized individuals. This does not prevent disclosure or publication of information in a statistical or other form that does not identify individuals or provide personal information. Individuals have access to their own personal information. Va. Code Ann. § 2.2-3705.4.A.6.

vv. Higher Education Fundraising: Information maintained in connection with fundraising activities by or for a public institution of higher education that would reveal (i) personal fundraising strategies relating to identifiable donors or prospective donors or (ii) wealth assessments; estate, financial, or tax planning information; health-related information; employment, familial, or marital status information; electronic mail addresses, facsimile or telephone numbers; birth dates or social security numbers of identifiable donors or prospective donors. This does not prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation, or the identity of the donor unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. It does not prevent from disclosure (i) the identities of sponsors providing grants to or contracting with the institution for the performance of research services or other work or (ii) the terms and conditions of such grants or contracts. Va. Code Ann. § 2.2-3705.4.A.7.

ww. Assessment of Individual Threats: Information held by a threat assessment team established by a local school board pursuant to § 22.1-79.4 or by a public institution of higher education pursuant to § 23.1-805 relating to the assessment or intervention with a specific individual. In the event an individual who has been under assessment commits an act, or is prosecuted for the commission of an act that has caused the death of, or caused serious bodily injury, including any felony sexual assault, to another person, such information of the threat assessment team concerning the individual under assessment shall be made available as provided in the Act, with the exception of any criminal history records obtained pursuant to § 19.2-389 or 19.2-389.1, health records obtained pursuant to § 32.1-127.1:03, or scholastic records as defined in § 22.1-289. The public body providing such information shall remove personally identifying information of any person who provided information to the threat assessment team under a promise of confidentiality. Va. Code Ann. § 2.2-3705.4.A.8.
xx. Tech Talent Investment Program: Records submitted to the Governor by a qualified institution seeking a grant under the Tech Talent Investment Program established in Va. Code Ann. § 23.1-1239 et seq., prior to completion of a memorandum of understanding. Va. Code Ann. § 2.2-3705.4.A.9.

yy. Health records: Health records, except that such records may be personally reviewed by the individual who is the subject of such records, as provided in subsection F of § 32.1-127.1:03. Where the person who is the subject of health records is confined in a state or local correctional facility, the administrator or chief medical officer of such facility may assert such confined person's right of access to the health records, and may review but not copy such records, if the administrator or chief medical officer has reasonable cause to believe that such confined person has an infectious disease or other medical condition from which other persons so confined need to be protected. Where the person who is the subject of health records is under the age of 18, his right of access may be asserted only by his guardian or his parent, including a noncustodial parent, unless such parent's parental rights have been terminated, a court of competent jurisdiction has restricted or denied such access, or a parent has been denied access to the health record in accordance with § 20-124.6. In instances where the person who is the subject thereof is an emancipated minor, a student in a public institution of higher education, or is a minor who has consented to his own treatment as authorized by § 16.1-338 or 54.1-2969, the right of access may be asserted by the subject person. Statistical summaries of incidents and statistical data, without disclosing information about specific individuals, concerning abuse of individuals receiving services compiled by the Commissioner of Behavioral Health and Developmental Services shall be disclosed. Va. Code Ann. § 2.2-3705.5.1.

zz. Licensure and scoring information: Applications for admission to examinations or for licensure and scoring records maintained by the Department of Health Professions or any board in that department on individual licensees or applicants; information required to be provided to the Department of Health Professions by certain licensees pursuant to § 54.1-2506.1; information held by the Health Practitioners' Monitoring Program Committee within the Department of Health Professions that identifies any practitioner who may be, or who is actually, impaired to the extent that disclosure is prohibited by § 54.1-2517; and information relating to the prescribing and dispensing of covered substances to recipients and any abstracts from such information that are in the possession of the Prescription Monitoring Program (Program) pursuant to Chapter 25.2 (§ 54.1-2519 et seq.) of Title 54.1 and any material relating to the operation or security of the Program. Va. Code Ann. § 2.2-3705.5.2.

aaa. Department for Aging and Rehabilitative Services; Department of Social Services: Reports, documentary evidence, and other information as specified in §§ 51.5-122 and 51.5-141 and Chapter 1 (§ 63.2-100 et seq.) of Title 63.2 and information and statistical registries required to be kept confidential pursuant to Chapter 1 (§ 63.2-100 et seq.) of Title 63.2. Va. Code Ann. § 2.2-3705.5.3.

bbb. Social Services and Medicaid Licensure, Inspection, Investigations: Investigative notes; proprietary information not published, copyrighted or patented; information obtained from employee personnel records; personally identifiable information regarding residents, clients or other recipients of services; other correspondence and information furnished in confidence to the Department of Social Services in connection with an active investigation of an applicant or licensee pursuant to Chapter 14.1 (§ 22.1-289.02 et seq.) of Title 22.1; other correspondence and information furnished in confidence to the Department of Social Services in connection with an active investigation of an applicant or licensee pursuant to Chapters 17 (§ 63.2-1700 et seq.) and 18 (§ 63.2-1800 et seq.) of Title 63.2; and information furnished to the Office of the Attorney General in connection with an investigation or litigation pursuant to Article 19.1 (§ 8.01-216.1 et seq.) of Chapter 3 of Title 8.01 and Chapter 9 (§ 32.1-310 et seq.) of Title 32.1. This does not prevent the disclosure of information from the records of completed investigations in a form that does not reveal the identity of complainants, persons supplying information, or other individuals involved in the investigation. Va. Code Ann. § 2.2-3705.5.4.

ccc. Emergency Medical Services: Information collected for the designation and verification of trauma centers and other specialty care centers within the Statewide Emergency Medical Services System and Services pursuant to Article 2.1 (§ 32.1-111.1 et seq.) of Chapter 4 of Title 32.1. Va. Code Ann. § 2.2-3705.5.5.

ddd. Mental health Commitment Hearings: Reports and court documents relating to involuntary admission required to be kept confidential pursuant to § 37.2-818. Va. Code Ann. § 2.2-3705.5.6.

eee. Family Fatality Review: Information acquired (i) during a review of any child death conducted by the State Child Fatality Review team established pursuant to § 32.1-283.1 or by a local or regional child fatality review team to the extent that such information is made confidential by § 32.1-283.2; (ii) during a review of any death conducted by a family violence fatality review team to the extent that such information is made confidential by § 32.1-283.3; (iii) during a review of any adult death conducted by the Adult Fatality Review Team to the extent made confidential by § 32.1-283.5 or by a local or regional adult fatality review team to the extent that such information is made confidential by § 32.1-283.6., (iv) by regional or local drug overdose fatality review teams; (v) during a review of any death conducted by the Maternal Mortality Review Team to the extent that such information is made confidential by 32.1-283.8; or (vi) during a review of any death conducted by the Developmental Disabilities Mortality Review Committee to the extent that such information is made confidential by § 37.2-314.1. Va. Code Ann. § 2.2-3705.5.7.

fff. Health Care Data: Patient level data collected by the Board of Health and not yet processed, verified, and released, pursuant to § 32.1-276.9, to the Board by the nonprofit organization with which the Commissioner of Health has contracted pursuant to § 32.1-276.4. Va. Code Ann. § 2.2-3705.5.8.

ggg. Neurotrauma Advisory Board Grant Applications: Information relating to a grant application, or accompanying a grant application, submitted to the Commonwealth Neurotrauma Initiative Advisory Board pursuant to Article 12 (§ 51.5-178 et seq.) of Chapter 14 of Title 51.5 that would (i) reveal (a) medical or mental health records or other data identifying individual patients or (b) proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant. Va. Code Ann. § 2.2-3705.5.9.

hhh. Managed Care Plan Review and Investigation: Any information copied, recorded, or received by the Commissioner of Health in the course of an examination, investigation, or review of a managed care health insurance plan licensee pursuant to §§ 32.1-137.4 and 32.1-137.5, including books, records, files, accounts, papers, documents, and any or all computer or other recordings. Va. Code Ann. § 2.2-3705.5.10.

iii. Birth-Related Neurological Injuries; Claim and Claimant Information: Records of the Virginia Birth-Related Neurological Injury Compensation Program required to be kept confidential pursuant to § 38.2-5002.2. Va. Code Ann. § 2.2-3705.5.11.

jjj. Communicable disease; Quarantined or Isolated Persons: Information held by the State Health Commissioner relating to the health of any person subject to an order of quarantine or an order of isolation pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1. This does not prevent the disclosure of statistical summaries, abstracts, or other information in aggregate form. Va. Code Ann. § 2.2-3705.5.12.

kkk. Individuals Receiving Transport Services Under ADA or TANF: The names and addresses or other contact information of persons receiving transportation services from a state or local public body or its designee under Title II of the Americans with Disabilities Act, (42 U.S.C. § 12131 et seq.) or funded by Temporary Assistance for Needy Families (TANF) created under § 63.2-600. Va. Code Ann. § 2.2-3705.5.13.

lll. Medical Peer and Utilization Review Committees: Information held by certain health care committees and entities that may be withheld from discovery as privileged communications pursuant to § 8.01-581.17. Va. Code Ann. § 2.2-3705.5.14.

mmm. Emergency Psychiatric Admission Proceedings: Data and information specified in § 37.2-308.01 relating to proceedings provided for in Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1 and Chapter 8 (§ 37.2-800 et seq.) of Title 37.2. Va. Code Ann. § 2.2-3705.5.15.

nnn. Hospital Emergency Department Coordination: Records of and information held by the Emergency Department Care Coordination Program required to be kept confidential pursuant to § 32.1-372. Va. Code Ann. § 2.2-3705.5.16.

ooo. Virginia Port Authority: Proprietary information gathered by or for the Virginia Port Authority as provided in § 62.1-132.4 or 62.1-134.1. Va. Code Ann. § 2.2-3705.6.1.

ppp. Industrial Development Financing: Financial statements not publicly available filed with applications for industrial development financings in accordance with Chapter 49 (§ 15.2-4900 et seq.) of Title 15.2. Va. Code Ann. § 2.2-3705.6.2.

qqq. Business Recruitment and Expansion: Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body, used by the public body for business, trade, and tourism development or retention; and memoranda, working papers, or other information related to businesses that are considering locating or expanding in Virginia, prepared by a public body, where competition or bargaining is involved and where disclosure of such information would adversely affect the financial interest of the public body. Va. Code Ann. § 2.2-3705.6.3.

rrr. Toxic substance Information: Information that was filed as confidential under the Toxic Substances Information Act (§ 32.1-239 et seq.), as such Act existed prior to July 1, 1992. Va. Code Ann. § 2.2-3705.6.4.

sss. Fishing Vessel Identification: Fisheries data that would permit identification of any person or vessel, except when required by court order as specified in § 28.2-204. Va. Code Ann. § 2.2-3705.6.5.

ttt. Railroad Information Protected by Federal Law: Confidential financial statements, balance sheets, trade secrets, and revenue and cost projections provided to the Department of Rail and Public Transportation, provided such information is exempt under the federal Freedom of Information Act or the federal Interstate Commerce Act or other laws administered by the Surface Transportation Board or the Federal Railroad Administration with respect to data provided in confidence to the Surface Transportation Board and the Federal Railroad Administration. Va. Code Ann. § 2.2-3705.6.6.

uuu. Information Provided to Department of Mines, Minerals and Energy: Proprietary information related to inventory and sales, voluntarily provided by private energy suppliers to the Department of Mines, Minerals and Energy, used by that Department for energy contingency planning purposes or for developing consolidated statistical information on energy supplies. Va. Code Ann. § 2.2-3705.6.7.

vvv. Medicaid Prescription Drug Prior Authorization: Confidential proprietary information furnished to the Board of Medical Assistance Services or the Medicaid Prior Authorization Advisory Committee pursuant to Article 4 (§ 32.1-331.12 et seq.) of Chapter 10 of Title 32.1. Va. Code Ann. § 2.2-3705.6.8.

www. Confidential Information of Private Transportation Business Protected by Federal Law: Proprietary, commercial or financial information, balance sheets, trade secrets, and revenue and cost projections provided by a private transportation business to the Virginia Department of Transportation and the Department of Rail and Public Transportation for the purpose of conducting transportation studies needed to obtain grants or other financial assistance under the Transportation Equity Act for the 21st Century (P.L. 105-178) for transportation projects if disclosure of such information is exempt under the federal Freedom of Information Act or the federal Interstate Commerce Act or other laws administered by the Surface Transportation Board or the Federal Railroad Administration with respect to data provided in confidence to the Surface Transportation Board and the Federal Railroad Administration. This exclusion does not apply to any wholly owned subsidiary of a public body. Va. Code Ann. § 2.2-3705.6.9.

xxx. Confidential Business Information Protected by Procurement Act: Confidential information designated as provided in subsection F of § 2.2-4342 as trade secrets or proprietary information by any person in connection with a procurement transaction or by any person who has submitted to a public body an application for prequalification to bid on public construction projects in accordance with subsection B of § 2.2-4317. Va. Code Ann. § 2.2-3705.6.10.

yyy. Government Evaluation of PPEA and PPTA Proposals: Memoranda, staff evaluations, or other information prepared by the responsible public entity, its staff, outside advisors, or consultants exclusively for the evaluation and negotiation of proposals filed under the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) where (i) if such information was made public prior to or after the execution of an interim or a comprehensive agreement, § 33.2-1820 or 56-575.17 notwithstanding, the financial interest or bargaining position of the public entity would be adversely affected and (ii) the basis for the determination required in clause (i) is documented in writing by the responsible public entity. Va. Code Ann. § 2.2-3705.6.11.a. This subdivision may not be construed to withhold information concerning (a) procurement records as required by § 33.2-1820 or 56-575.17; (b) information concerning the terms and conditions of any interim or comprehensive agreement, service contract, lease, partnership, or any agreement of any kind entered into by the responsible public entity and the private entity; (c) information concerning the terms and conditions of any financing arrangement that involves the use of any public funds; or (d) information concerning the performance of any private entity developing or operating a qualifying transportation facility or a qualifying project. Va. Code Ann. § 2.2-3705.6.11.b.

zzz. Confidential Business Information in PPEA and PPTA Proposals: Information provided by a private entity to a responsible public entity, affected jurisdiction, or affected local jurisdiction pursuant to the provisions of the Public-Private Transportation Act of 1995 (§ 33.2-1800 et seq.) or the Public-Private Education Facilities and Infrastructure Act of 2002 (§ 56-575.1 et seq.) if disclosure of such information would reveal (i) trade secrets of the private entity as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (ii) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (iii) other information submitted by the private entity where if such information was made public prior to the execution of an interim agreement or a comprehensive agreement, the financial interest or bargaining position of the public or private entity would be adversely affected. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.11.b.

aaaa. Confidential Business Information Submitted to Virginia Resources Authority: Confidential proprietary information or trade secrets, not publicly available, provided by a private person or entity pursuant to a promise of confidentiality to the Virginia Resources Authority or to a fund administered in connection with financial assistance rendered or to be rendered by the Virginia Resources Authority where, if such information were made public, the financial interest of the private person or entity would be adversely affected. Va. Code Ann. § 2.2-3705.6.12.

bbbb. Confidential Business Information of Prospective Municipal Franchisees: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), or confidential proprietary information that is not generally available to the public through regulatory disclosure or otherwise, provided by a (i) bidder or applicant for a franchise or (ii) franchisee under Chapter 21 (§ 15.2-2100 et seq.) of Title 15.2 to the applicable franchising authority pursuant to a promise of confidentiality from the franchising authority, to the extent the information relates to the bidder's, applicant's, or franchisee's financial capacity or provision of new services, adoption of new technologies or implementation of improvements, where such new services, technologies, or improvements have not been implemented by the franchisee on a nonexperimental scale in the franchise area, and where, if such information were made public, the competitive advantage or financial interests of the franchisee would be adversely affected. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.13.

cccc. Confidential Business Information Submitted by Charitable Gaming Operators: Information of a proprietary or confidential nature furnished by a supplier or manufacturer of charitable gaming supplies to the Department of Agriculture and Consumer Services (i) pursuant to subsection E of § 18.2-340.34 and (ii) pursuant to regulations promulgated by the Charitable Gaming Board related to approval of electronic and mechanical equipment. Va. Code Ann. § 2.2-3705.6.14.

dddd. Apple Producer Data Submitted to Tax Commissioner: Information related to Virginia apple producer sales provided to the Virginia State Apple Board pursuant to § 3.2-1215. Va. Code Ann. § 2.2-3705.6.15.

eeee. Carrier Trade Secrets Submitted in Connection with E-911 Cost Recovery: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) of Title 59.1, submitted by CMRS providers as defined in § 56-484.12 to the former Wireless Carrier E-911 Cost Recovery Subcommittee created pursuant to former § 56-484.15, relating to the provision of wireless E-911 service. Va. Code Ann. § 2.2-3705.6.16.

ffff. Confidential Business Information in Grant Applications on Health Research: Information relating to a grant or loan application, or accompanying a grant or loan application, to the Commonwealth Health Research Board pursuant to Chapter 5.3 (§ 32.1-162.23 et seq.) of Title 32.1 if disclosure of such information would (i) reveal proprietary business or research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant. Va. Code Ann. § 2.2-3705.6.17.

gggg. Local Public Body Telecommunications Trade Secrets: Confidential proprietary information and trade secrets developed and held by a local public body (i) providing telecommunication services pursuant to § 56-265.4:4 and (ii) providing cable television services pursuant to Article 1.1 (§ 15.2-2108.2 et seq.) of Chapter 21 of Title 15.2 if disclosure of such information would be harmful to the competitive position of the locality. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. This subdivision does not apply to any authority created pursuant to the BVU Authority Act (§ 15.2-7200 et seq.). Va. Code Ann. § 2.2-3705.6.18.

hhhh. Local Authority Telecommunications Trade Secrets: Confidential proprietary information and trade secrets developed by or for a local authority created in accordance with the Virginia Wireless Service Authorities Act (§ 15.2-5431.1 et seq.) to provide qualifying communications services as authorized by Article 5.1 (§ 56-484.7:1 et seq.) of Chapter 15 of Title 56, where disclosure of such information would be harmful to the competitive position of the authority, except that information required to be maintained in accordance with § 15.2-2160 shall be released. Va. Code Ann. § 2.2-3705.6.19.

iiii. Confidential Business Information Submitted to Department of Small Business and Supplier Diversity: Trade secrets or financial information of a business, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, provided to the Department of Small Business and Supplier Diversity as part of an application for certification as a small, women-owned, or minority-owned business in accordance with Title 2.2, Chapter 16.1 (§ 2.2-1603 et seq.). This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.20.

jjjj. Information Submitted to All-Payor Health Care Claims Database: Information of a proprietary or confidential nature disclosed by a carrier to the State Health Commissioner pursuant to §32.1-276.7:1. Va. Code Ann. § 2.2-3705.6.21.

kkkk. Confidential Business Information Provided to State Inspector General: Trade secrets, including, but not limited to, financial information, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections supplied by a private or nongovernmental entity to the State Inspector General for the purpose of an audit, special investigation, or any study requested by the Office of the State Inspector General in accordance with law. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.22.

llll. Confidential Business Information Submitted to Tobacco Region Revitalization Commission: Information relating to a grant application, or accompanying a grant application, submitted to the Tobacco Region Revitalization Commission that would (i) reveal (a) trade secrets, (b) financial information of a grant applicant that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (c) research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant; and memoranda, staff evaluations, or other information prepared by the Commission or its staff exclusively for the evaluation of grant applications. This exclusion applies to grants that are consistent with the powers of and in furtherance of the performance of the duties of the Commission pursuant to § 3.2-3103. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.23.

mmmm. Commercial Space Flight Authority Rate Information: Information held by the Commercial Space Flight Authority relating to rate structures or charges for the use of projects of, the sale of products of, or services rendered by the Authority if disclosure of such information would adversely affect the financial interest or bargaining position of the Authority or a private entity providing the information to the Authority. Va. Code Ann. § 2.2-3705.6.24.a.

nnnn. Confidential Business Information Submitted to Commercial Space Flight Authority: Information provided by a private entity to the Commercial Space Flight Authority if disclosure of such information would (i) reveal (a) trade secrets of the private entity; (b) financial information of the private entity, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) other information submitted by the private entity and (ii) adversely affect the financial interest or bargaining position of the Authority or private entity. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.24.b.

oooo. Business Information of Agricultural Landowners: Information of a proprietary nature furnished by an agricultural landowner or operator to the Department of Conservation and Recreation, the Department of Environmental Quality, the Department of Agriculture and Consumer Services, or any political subdivision, agency, or board of the Commonwealth pursuant to §§ 10.1-104.7, 10.1-104.8, and 10.1-104.9, other than when required as part of a state or federal regulatory enforcement action. Va. Code Ann. § 2.2-3705.6.25.

pppp. Trade Secrets in Information Submitted to DEQ Under Waste Management Act: Trade secrets provided to the Department of Environmental Quality pursuant to the provisions of § 10.1-1458. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.26.

qqqq. Public-use Airport Information: Information of a proprietary nature furnished by a licensed public-use airport to the Department of Aviation for funding from programs administered by the Department of Aviation or the Virginia Aviation Board, where if such information was made public, the financial interest of the public-use airport would be adversely affected. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.27.

rrrr. Confidential Business Information Submitted to Virginia Innovation Partnership Authority: Information relating to a grant, loan, or investment application, or accompanying a grant, loan, or investment application, submitted to the Commonwealth of Virginia Research Innovation Partnership Authority established pursuant to Article 11 (§ 2.2-2351 et seq.) of Chapter 22, an advisory committee of the Authority, or any other entity designated by the Authority to review such applications, to the extent that such records would (i) reveal (a) trade secrets; (b) financial information of a party to a grant or loan application that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) research-related information produced or collected by a party to the application in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of a party to a grant, loan, or investment application; and memoranda, staff evaluations, or other information prepared by the Authority or its staff, or a reviewing entity designated by the Authority, exclusively for the evaluation of grant, loan, or investment applications, including any scoring or prioritization documents prepared for and forwarded to the Authority. Va. Code Ann. § 2.2-3705.6.28.

ssss. Confidential Business Information Provided in Connection with Solar Services or Carbon Sequestration Agreement: Proprietary information, voluntarily provided by a private business pursuant to a promise of confidentiality from a public body, used by the public body for a solar services or carbon sequestration agreement, where disclosure of such information would (i) reveal (a) trade secrets of the private business; (b) financial information of the private business, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise; or (c) other information submitted by the private business and (ii) adversely affect the financial interest or bargaining position of the public body or private business. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.29.

tttt. Engineering and construction drawings: Information contained in engineering and construction drawings and plans submitted for the sole purpose of complying with the Building Code in obtaining a building permit if disclosure of such information would identify specific trade secrets or other information that would be harmful to the competitive position of the owner or lessee. However, such information shall be exempt only until the building is completed. Information relating to the safety or environmental soundness of any building shall not be exempt from disclosure. Va. Code Ann. § 2.2-3705.6.30.

uuuu. Trade Secrets Submitted to Department of Transportation: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), including, but not limited to, financial information, including balance sheets and financial statements that are not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections supplied by a private or nongovernmental entity to the Virginia Department of Transportation for the purpose of an audit, special investigation, or any study requested by the Virginia Department of Transportation in accordance with law. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.31.

vvvv. Grant Application Information Submitted to Department of Housing and Community Development. Information related to a grant application, or accompanying a grant application, submitted to the Department of Housing and Community Development that would (i) reveal (a) trade secrets, (b) financial information of a grant applicant that is not a public body, including balance sheets and financial statements, that are not generally available to the public through regulatory disclosure or otherwise, or (c) research-related information produced or collected by the applicant in the conduct of or as a result of study or research on medical, rehabilitative, scientific, technical, technological, or scholarly issues, when such information has not been publicly released, published, copyrighted, or patented, and (ii) be harmful to the competitive position of the applicant. This exclusion only applies to grants administered by the Department, the Director of the Department, or pursuant to § 36-139, Article 26 (§ 2.2-2484 et seq.) of Chapter 24, or the Virginia Telecommunication Initiative as authorized by the appropriations act. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. Va. Code Ann. § 2.2-3705.6.32.

wwww. Loan Application Information Submitted to HUD or Virginia Housing and Development Authority. Financial and proprietary records submitted with a loan application to a locality for the preservation or construction of affordable housing that is related to a competitive application to be submitted to either the U.S. Department of Housing and Urban Development (HUD) or the Virginia Housing Development Authority (VHDA), when the release of such records would adversely affect the bargaining or competitive position of the applicant. Such records shall not be withheld after they have been made public by HUD or VHDA. Va. Code Ann. § 2.2-3705.6.33.

xxxx. Records Exempt from Disclosure Under Tax Statute: State income, business, and estate tax returns, personal property tax returns, and confidential records held pursuant to § 58.1-3. Va. Code Ann. § 2.2-3705.7.1

yyyy. Public Official Working Papers and Correspondence: Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth. No record otherwise open to inspection under the Act is excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under this chapter or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. This subdivision does not authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107. Va. Code Ann. § 2.2-3705.7.2. This subdivision has definitions that should be consulted, including that of “working papers.” "Working papers" means records prepared by or for a public official identified in this subdivision for his personal or deliberative use.
See Richmond Newspapers Inc. v. Casteen, 42 Va. Cir. 505 (Richmond Cir. Ct. 1997) (determining correspondence between the president of a university and an independent auditing entity is exempt from disclosure under the Act). This executive privilege does not extend to state government officials. Griffin v. Virginia Department of Transportation, 46 Va. Cir. 399 (Richmond Cir. Ct. 1998).
zzzz. Library Patron Identifiers: Information contained in library records that can be used to identify (i) both (a) any library patron who has borrowed or accessed material or resources from a library and (b) the material or resources such patron borrowed or accessed or (ii) any library patron under 18 years of age. For the purposes of clause (ii), access shall not be denied to the parent, including a noncustodial parent, or guardian of such library patron. Va. Code Ann. § 2.2-3705.7.3.

aaaaa. DOT Contract Award and Bid Monitoring Information: Contract cost estimates prepared for the confidential use of the Department of Transportation in awarding contracts for construction or the purchase of goods or services, and records and automated systems prepared for the Department's Bid Analysis and Monitoring Program. Va. Code Ann. § 2.2-3705.7.4.

bbbbb. Political Subdivision Bondholder Lists: Lists of registered owners of bonds issued by a political subdivision of the Commonwealth, whether the lists are maintained by the political subdivision itself or by a single fiduciary designated by the political subdivision. Va. Code Ann. § 2.2-3705.7.5.

ccccc. Legislator Disclosure Statements and Conduct: Information furnished by a member of the General Assembly to a meeting of a standing committee, special committee, or subcommittee of his house established solely for the purpose of reviewing members' annual disclosure statements and supporting materials filed under § 30-110 or of formulating advisory opinions to members on standards of conduct, or both. Va. Code Ann. § 2.2-3705.7.6.

ddddd. Public Utility Customer Identifiers: Customer account information of a public utility affiliated with a political subdivision of the Commonwealth, including the customer's name and service address, but excluding the amount of utility service provided and the amount of money charged or paid for such utility service. Va. Code Ann. § 2.2-3705.7.7.

eeeee. Housing Assistance Recipient Personal Information: Personal information, as defined in § 2.2-3801, (i) filed with the Virginia Housing Development Authority concerning individuals who have applied for or received loans or other housing assistance or who have applied for occupancy of or have occupied housing financed, owned or otherwise assisted by the Virginia Housing Development Authority; (ii) concerning persons participating in or persons on the waiting list for federally funded rent-assistance programs; (iii) filed with any local redevelopment and housing authority created pursuant to § 36-4 concerning persons participating in or persons on the waiting list for housing assistance programs funded by local governments or by any such authority; or (iv) filed with any local redevelopment and housing authority created pursuant to § 36-4 or any other local government agency concerning persons who have applied for occupancy or who have occupied affordable dwelling units established pursuant to § 15.2-2304 or 15.2-2305. Access to one's own information is mandated. Va. Code Ann. § 2.2-3705.7.8.

fffff. Hazardous Waste Facility Siting: Information regarding the siting of hazardous waste facilities, except as provided in § 10.1-1441, if disclosure of such information would have a detrimental effect upon the negotiating position of a governing body or on the establishment of the terms, conditions, and provisions of the siting agreement. Va. Code Ann. § 2.2-3705.7.9.

ggggg. Protected Lands and Endangered Species: Information on the site-specific location of rare, threatened, endangered, or otherwise imperiled plant and animal species, natural communities, caves, and significant historic and archaeological sites if, in the opinion of the public body that has the responsibility for such information, disclosure of the information would jeopardize the continued existence or the integrity of the resource. This subdivision does not apply to requests from the owner of the land upon which the resource is located. Va. Code Ann. § 2.2-3705.7.10.

hhhhh. Lottery Game Information: Memoranda, graphics, video or audio tapes, production models, data, and information of a proprietary nature produced by or for or collected by or for the Virginia Lottery relating to matters of a specific lottery game design, development, production, operation, ticket price, prize structure, manner of selecting the winning ticket, manner of payment of prizes to holders of winning tickets, frequency of drawings or selections of winning tickets, odds of winning, advertising, or marketing, where such information not been publicly released, published, copyrighted, or patented. Whether released, published, or copyrighted, all game-related information shall be subject to public disclosure under the Act upon the first day of sales for the specific lottery game to which it pertains. Va. Code Ann. § 2.2-3705.7.11.

iiiii. Government-Held Investment Information: Information held by the Virginia Retirement System, acting pursuant to § 51.1-124.30, or a local retirement system, acting pursuant to § 51.1-803, or by a local finance board or board of trustees of a trust established by one or more local public bodies to invest funds for post-retirement benefits other than pensions, acting pursuant to Article 8 (§ 15.2-1544 et seq.) of Chapter 15 of Title 15.2, or by the board of visitors of the University of Virginia, acting pursuant to § 23.1-2210, or by the board of visitors of the College of William and Mary, acting pursuant to § 23.1-2803 or by the Virginia College Savings Plan, acting pursuant to § 23.1-704, relating to the acquisition, holding, or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, if disclosure of such information would (i) reveal confidential analyses prepared for the board of visitors of the University of Virginia, the board of visitors of the College of William and Mary prepared by the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan, or provided to the retirement system, a local finance board or board of trustees, or the Virginia College Savings Plan under a promise of confidentiality of the future value of such ownership interest or the future financial performance of the entity and (ii) have an adverse effect on the value of the investment to be acquired, held, or disposed of by the retirement system, a local finance board or board of trustees, the board of visitors of the University of Virginia, the board of visitors of the College of William and Mary, or the Virginia College Savings Plan. This subdivision does not prevent the disclosure of information relating to the identity of any investment held, the amount invested, or the present value of such investment. Va. Code Ann. § 2.2-3705.7.12.

jjjjj. Assistive Technology Loan Fund Applicant and Recipient Information: Financial, medical, rehabilitative, and other personal information concerning applicants for or recipients of loan funds submitted to or maintained by the Assistive Technology Loan Fund Authority under Chapter 11 (§ 51.5-53 et seq.) of Title 51.5. Va. Code Ann. § 2.2-3705.7.13.

kkkkk. VCU Health System Authority Omnibus Exclusion: Information held by the Virginia Commonwealth University Health System Authority pertaining to any of the following: an individual's qualifications for or continued membership on its medical or teaching staffs; proprietary information gathered by or in the possession of the Authority from third parties pursuant to a promise of confidentiality; contract cost estimates prepared for confidential use in awarding contracts for construction or the purchase of goods or services; information of a proprietary nature produced or collected by or for the Authority or members of its medical or teaching staffs; financial statements not publicly available that may be filed with the Authority from third parties; the identity, accounts, or account status of any customer of the Authority; consulting or other reports paid for by the Authority to assist the Authority in connection with its strategic planning and goals; the determination of marketing and operational strategies where disclosure of such strategies would be harmful to the competitive position of the Authority; and information of a proprietary nature produced or collected by or for employees of the Authority, other than the Authority's financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical, or scholarly issues, whether sponsored by the Authority alone or in conjunction with a governmental body or a private concern, when such information has not been publicly released, published, copyrighted, or patented. This exclusion shall also apply when such information is in the possession of Virginia Commonwealth University. Va. Code Ann. § 2.2-3705.7.14.

lllll. Environmental Enforcement Information: Information held by the Department of Environmental Quality, the State Water Control Board, the State Air Pollution Control Board, or the Virginia Waste Management Board relating to (i) active federal environmental enforcement actions that are considered confidential under federal law and (ii) enforcement strategies, including proposed sanctions for enforcement actions. Upon request, such information shall be disclosed after a proposed sanction resulting from the investigation has been proposed to the director of the agency. This subdivision does not prevent the disclosure of information related to inspection reports, notices of violation, and documents detailing the nature of any environmental contamination that may have occurred or similar documents. Va. Code Ann. § 2.2-3705.7.15.

mmmmm. Data Collected by Toll Road Operators: Information related to the operation of toll facilities that identifies an individual, vehicle, or travel itinerary, including vehicle identification data or vehicle enforcement system information; video or photographic images; Social Security or other identification numbers appearing on driver's licenses; credit card or bank account data; home addresses; phone numbers; or records of the date or time of toll facility use. Va. Code Ann. § 2.2-3705.7.16.

nnnnn. Personal Information Held by Virginia Lottery: Information held by the Virginia Lottery pertaining to (i) the social security number, tax identification number, state sales tax number, home address and telephone number, personal and lottery banking account and transit numbers of a retailer, and financial information regarding the nonlottery operations of specific retail locations and (ii) individual lottery winners, except that a winner's name, hometown, and amount won shall be disclosed. Disclosure of this information requires the consent of the winner if the value of the prize exceeds $10 million. Va. Code Ann. § 2.2-3705.7.17.

ooooo. Drug Test Information of Branch Pilots: Information held by the Board for Branch Pilots relating to the chemical or drug testing of a person regulated by the Board, where such person has tested negative or has not been the subject of a disciplinary action by the Board for a positive test result. Va. Code Ann. § 2.2-3705.7.18.

ppppp. Unclaimed Property Holder Audit Information: Information pertaining to the planning, scheduling, and performance of examinations of holder records pursuant to the Virginia Disposition of Unclaimed Property Act (§ 55-2500 et seq.) prepared by or for the State Treasurer or his agents or employees or persons employed to perform an audit or examination of holder records. Va. Code Ann. § 2.2-3705.7.19.

qqqqq. Personal Information of Citizen Emergency Response Teams: Information held by the Virginia Department of Emergency Management or a local governing body relating to citizen emergency response teams established pursuant to an ordinance of a local governing body that reveal the name, address, including e-mail address, telephone or pager numbers, or operating schedule of an individual participant in the program. Va. Code Ann. § 2.2-3705.7.20.

rrrrr. Personal Information of Juveniles Held by Park and Recreation Entities: Information held by state or local park and recreation departments and local and regional park authorities concerning identifiable individuals under the age of 18 years. However, nothing in this subdivision shall operate to prevent the disclosure of information defined as directory information under regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, unless the public body has undertaken the parental notification and opt-out requirements provided by such regulations. Access shall not be denied to the parent, including a noncustodial parent, or guardian of such person, unless the parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For such information of persons who are emancipated, the right of access may be asserted by the subject thereof. Any parent or emancipated person who is the subject of the information may waive, in writing, the protections afforded by this subdivision. If the protections are so waived, the public body shall open such information for inspection and copying. Va. Code Ann. § 2.2-3705.7.21.

sssss. Statewide Alert Network Participant Information: Information submitted for inclusion in the Statewide Alert Network administered by the Department of Emergency Management that reveal names, physical addresses, email addresses, computer or internet protocol information, telephone numbers, pager numbers, other wireless or portable communications device information, or operating schedules of individuals or agencies, where the release of such information would compromise the security of the Statewide Alert Network or individuals participating in the Statewide Alert Network. Va. Code Ann. § 2.2-3705.7.22.

ttttt. Judicial Discipline Information: Information held by the Judicial Inquiry and Review Commission made confidential by § 17.1-913. Va. Code Ann. § 2.2-3705.7.23.

uuuuu. Virginia and Local Retirement Systems and Virginia College Savings Plan Investments: Information held by the Virginia Retirement System acting pursuant to § 51.1-124.30, a local retirement system acting pursuant to § 51.1-803 (hereinafter collectively referred to as the retirement system), or the Virginia College Savings Plan, acting pursuant to § 23.1-704 relating to internal deliberations of or decisions by the retirement system or the Virginia College Savings Plan on the pursuit of particular investment strategies, or the selection or termination of investment managers, prior to the execution of such investment strategies or the selection or termination of such managers, if disclosure of such information would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan. Va. Code Ann. § 2.2-3705.7.24.a.

vvvvv. Trade Secrets Submitted to Virginia or Local Retirement System or Virginia College Savings Plan: Trade secrets provided by a private entity to the Virginia Retirement system, a local retirement system, or the Virginia College Savings Plan if disclosure of such records would have an adverse impact on the financial interest of the retirement system or the Virginia College Savings Plan. Va. Code Ann. § 2.2-3705.7.24.b. This subdivision contains a protocol by which the submitting entity must identify protected information and give grounds for its protection at the time of submission. This subdivision does not prevent the disclosure of the identity or amount of any investment held or the present value and performance of all asset classes and subclasses.

wwwww. Identification of Department of Corrections Executioners: Information held by the Department of Corrections made confidential by former § 53.1-233, specifically the identities of persons designated by the Director to conduct an execution, and any information reasonably calculated to lead to the identities of such persons, including, but not limited to, their names, residential or office addresses, residential or office telephone numbers, and social security numbers. Va. Code Ann. § 2.2-3705.7.25.

xxxxx. Local Government Investment Pool: Information maintained by the Department of the Treasury or participants in the Local Government Investment Pool (§ 2.2-4600 et seq.) and required to be provided by such participants to the Department to establish accounts in accordance with § 2.2-4602. Va. Code Ann. § 2.2-3705.7.26.

yyyyy. Veteran Trust Fund Personal Information: Personal information, as defined in § 2.2-3801, contained in the Veterans Care Center Resident Trust Funds concerning residents or patients of the Department of Veterans Services Care Centers, except that access shall not be denied to the person who is the subject of the information. Va. Code Ann. § 2.2-3705.7.27.

zzzzz. Veterans Services Foundation Donor Information: Information maintained in connection with fundraising activities by the Veterans Services Foundation pursuant to § 2.2-2716 that reveal the address, electronic mail address, facsimile or telephone number, social security number or other identification number appearing on a driver's license or other document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2 or the comparable law of another jurisdiction, or credit card or bank account data of identifiable donors, except that access shall not be denied to the person who is the subject of the information. This subdivision does prevent the disclosure of information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor, unless the donor has requested anonymity in connection with or as a condition of making a pledge or donation. This subdivision does not apply to protect from disclosure (i) the identities of sponsors providing grants to or contracting with the foundation for the performance of services or other work or (ii) the terms and conditions of such grants or contracts. Va. Code Ann. § 2.2-3705.7.28.

aaaaaa. Prosecutor Training Materials: Information prepared for and utilized by the Commonwealth's Attorneys' Services Council in the training of state prosecutors or law-enforcement personnel, where such information is not otherwise available to the public and the disclosure of such information would reveal confidential strategies, methods, or procedures to be employed in law-enforcement activities or materials created for the investigation and prosecution of a criminal case. Va. Code Ann. § 2.2-3705.7.29.

bbbbbb. Excludable Information Provided to Department of Aviation by Public Bodies: Information provided to the Department of Aviation by other entities of the Commonwealth in connection with the operation of aircraft where the information would not be subject to disclosure by the entity providing the information. The entity providing the information to the Department of Aviation shall identify the specific information to be protected and the applicable provision of this chapter that excludes the information from mandatory disclosure. Va. Code Ann. § 2.2-3705.7.30.

cccccc. Judicial Performance Evaluation Program Information on Individual Judges: Information created or maintained by or on the behalf of the judicial performance evaluation program related to an evaluation of any individual justice or judge made confidential by § 17.1-100. Va. Code Ann. § 2.2-3705.7.31.

dddddd. Sexual Assault Team Individual Case Information: Information reflecting the substance of meetings in which (i) individual sexual assault cases are discussed by any sexual assault team established pursuant to § 15.2-1627.4 or (ii) individual child abuse or neglect cases or sex offenses involving a child are discussed by multidisciplinary child abuse teams established pursuant to § 15.2-1627.5, or (iii) individual cases of abuse, neglect, or exploitation of adults as defined in § 63.2-1603 are discussed by multidisciplinary teams established pursuant to §§ 15.2-1627.5 and 63.2-1605. The findings of any such team may be disclosed or published in statistical or other aggregated form that does not disclose the identity of specific individuals. Va. Code Ann. § 2.2-3705.7.32.

eeeeee. Economic Development Planning and Strategy: Information contained in the strategic plan, marketing plan, or operational plan prepared by the Virginia Economic Development Partnership Authority pursuant to § 2.2-2237.1 regarding target companies, specific allocation of resources and staff for marketing activities, and specific marketing activities that would reveal to the Commonwealth's competitors for economic development projects the strategies intended to be deployed by the Commonwealth, thereby adversely affecting the financial interest of the Commonwealth. The executive summaries of the strategic plan, marketing plan, and operational plan shall not be redacted or withheld pursuant to this subdivision. Va. Code Ann. § 2.2-3705.7.33.

ffffff. Physical Therapy Compact Commission. Information discussed in a closed session of the Physical Therapy Compact Commission or the Executive Board or other committees of the Commission for purposes set forth in subsection E of § 54.1-3491. Va. Code Ann. § 2.2-3705.7.34.

gggggg. Innovation Partnership Authority. Information held by the Commonwealth of Virginia Innovation Partnership Authority (the Authority), an advisory committee of the Authority, or any other entity designated by the Authority, relating to (i) internal deliberations of or decisions by the Authority on the pursuit of particular investment strategies prior to the execution of such investment strategies and (ii) trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), provided by a private entity to the Authority, if such disclosure of records pursuant to clause (i) or (ii) would have an adverse impact on the financial interest of the Authority or a private entity. Va. Code Ann. § 2.2-3705.7.35.

hhhhhh. Gambler Voluntary Exclusion Program. Personal information provided to or obtained by the Virginia Lottery in connection with the voluntary exclusion program administered pursuant to § 58.1-4015.1. Va. Code Ann. § 2.2-3705.7.36.

iiiiii. Sports Betting Confidential Reports of Misconduct. Personal information provided to or obtained by the Virginia Lottery concerning the identity of any person reporting prohibited conduct pursuant to § 58.1-4043. Va. Code Ann. § 2.2-3705.7.37.

jjjjjj. Criminal Records: Criminal records are addressed comprehensively in Va. Code Ann.§2.2-3706 and 3706.1. Generally, Virginia takes a broad view of what may be withheld and has no limits on when an investigation ends. It does provide for release of basic incident information, arrestee photographs and arrest information, discussed in Part III.P. of this outline.

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B. Other statutory exclusions

The Virginia Code contains dozens of specific statutory provisions operating outside of the Act that make information confidential.  This subsection identifies important or frequently used provisions that are not cross-referenced in the Act.  It is always wise to perform an electronic search of the entire Code to confirm that information is not subject to a statute that makes it non-public.

Attorney disciplinary matters, governed by Rules of the Supreme Court of Virginia Part 6 § IV, Par. 13-30.

Circuit Court Judge evaluation program, governed by Rules of the Supreme Court of Virginia, Rule 9:2.

Concealed firearms carry information, governed by Va. Code Ann. §§ 18.2-308.02.D, 18.2-308.07.C.

Department of Elections registered voter and voter lists, governed by Va. Code Ann. §§ 24.2-405, 406.

Department of Motor Vehicles records, governed by Va. Code Ann. § 46.2-208.

Fusion Intelligence Center Information, governed by Va. Code Ann. § 52-48.

Government Data Collection and Dissemination Practices Act, found at Va. Code Ann. § 2.2-3800 et seq.

Insurance code provisions governing confidential information are found throughout Title 38.2.

Personal Information Privacy Act, found at Va. Code Ann. § 59.1-442 et seq.

Tax information is protected by several provisions in Title 58.1; the general provision protecting such information is Va. Code Ann. § 58.1-3.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

In Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991) the Supreme Court of Virginia invoked a rule of executive privilege to protect the Governor from having to release records of his telephone calls.

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

The Virginia exclusion concerning health information makes no specific reference to HIPAA.  However, the general structure of the Act, which gives effect to disclosures “prohibited by law,” along with general principles of federal preemption, indicate that the Act is not a vehicle for circumventing the requirements of HIPAA or for expanding its rules of confidentiality by implication. State law has provisions concerning the exercise of access rights by incarcerated persons, minors, and students. Va. Code Ann. § 2.2-3705.5.1.

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2. DPPA

Virginia’s DMV laws pertaining to information electronically submitted by customers makes specific reference to the restrictions imposed by the federal Drivers Privacy Protection Act.  Va. Code Ann. § 46.2-216.1.

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3. FERPA

The Virginia exclusion relating to scholastic records makes no specific reference to FERPA.  However, the general structure of the Act, which gives effect to disclosures “prohibited by law,” along with general principles of federal preemption, indicate that the Act is not a vehicle for circumventing the requirements of FERPA or for expanding its rules of confidentiality by implication. Va. Code Ann. § 2.2-3705.4.A.1.

Virginia’s DMV laws pertaining to information electronically submitted by customers makes specific reference to the restrictions imposed by the federal Drivers Privacy Protection Act.  Va. Code Ann. § 46.2-216.1.

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4. Other

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F. Segregability requirements

Portions of records that are segregable from exempt material are available. The Act states that no record may be withheld in its entirety on the ground that some portion of the record is excluded from disclosure under the Act or exempted under any other provision of law. All portions of a record not subject to withholding under the law must be produced. Va. Code Ann. § 2.2-3704.01. This provision was enacted in 2016 to correct the Supreme Court of Virginia’s decision in Department of Corrections v. Surovell, 290 Va. 255, 776 S.E.2d 579 (2015), which, contrary to the Act’s plain language, indicated that certain records could be withheld entirely because redaction was not required.

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G. Agency obligation to identify basis of redaction or withholding

A public body is required whenever a record is withheld in whole or in part to state in writing and with reasonable particularity the volume and subject matter of withheld records, and to cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.  Va. Code Ann. § 2.2-3704.B.

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Va. Code Ann. § 32.1-285 requires filing of all autopsy reports with the Chief Medical Examiner, with copies to the judge or Commonwealth's Attorney requesting the report. The Chief Medical Examiner may release such reports to the appropriate Commonwealths' Attorney or law enforcement agency investigating the death. Confidential records and information obtained from private and public entities and provided to the Office of the Chief Medical Examiner during the course of a death investigation shall remain confidential and shall not be subject to the provisions of the Act. Va. Code Ann. § 32.1-283.4.A.  Separate provisions establish confidentiality rules for the work of the State Child Fatality Review Team.  Va. Code Ann. § 32.1-283.1.  The Act includes an exclusion specifically referencing these activities.  Va. Code Ann. § 2.2-3705.5.7.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Exclusions from disclosure for administrative investigations are collected in Va. Code Ann. § 2.2-3705.3. The exclusion subdivisions are agency-specific, but generally address the distinction between ongoing and concluded investigations, and the protection in some cases of persons providing information in confidence to investigators.

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C. Bank records

Examination reports and information furnished to the State Corporation Commission concerning any bank, savings institution or credit union, disclosure of which could endanger the safety or soundness of the entity -- other than those required by law to be made public -- are open only to specifically identified officials. Va. Code Ann. § 6.2-101. Banks, however, must report their financial condition periodically to the State Corporation Commission. Va. Code Ann. § 6.2-907.

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D. Budgets

Budgets fall within the definition of "public records" and are subject to disclosure. Va. Code Ann. § 2.2-3701. Individual persons who enjoy “working papers” protection might claim that personal, preliminary records relating to budget development may be withheld.  Va. Code Ann. § 2.2-3705.7.2.

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E. Business records, financial data, trade secrets

The Act gathers exclusions that relate to confidential business information in Va. Code Ann. § 2.2-3705.6.  The language in these exclusions is inconsistent and opaque, conflating concepts of confidentiality, proprietorship, trade secret status and economic value.  The concurring opinion in American Tradition Inst. v. Rector of the Univ. of Virginia, 287 Va. 330, 346, 756 S.E.2d 435, 444 (2014) pointed out the potential for interpretive problems caused by the inexact use of language.

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F. Contracts, proposals and bids

Records relating to procurement transactions are subject to the Act, as modified by the Virginia Public Procurement Act. Cost estimates prepared for a public body engaged in procurement may be withheld. See generally Va. Code Ann. § 2.2-4342; see also Va. Code Ann. § 2.2-3705.7.4. (cost estimates of Department of Transportation). Contracts are generally open for inspection after they are awarded. The Act has a broad exclusion for records relating to public-private partnerships under the Public-Private Transportation Act of 1995 and the Public-Private Education Facilities and Infrastructure Act of 2002. Va. Code Ann. 2.2-3705.6.11.

Contracts between public officers and a public body may not be withheld. However, contracts settling public employee employment disputes are held confidential as personnel records. Va. Code Ann. § 2.2-3705.1.1.  Financial records relating to settlement payments must be disclosed.  LeMond v. McElroy, 239 Va. 515, 521, 391 S.E.2d 309, 313 (1990).

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G. Collective bargaining records

This is not addressed in the Act.

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H. Economic development records

Records, voluntarily provided by a private business pursuant to a promise of confidentiality from a public body or prepared by the public body where competition or bargaining is involved, used for the purpose of business, trade and tourism development or retention are exempt. Va. Code. Ann. § 2.2-3705.6.3.

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I. Election Records

Registration records shall be opened to inspection by any registered voter. Va. Code Ann. § 24.2-444. However, no voter registration record containing an individual's Social Security number shall be made available for inspection or copying by anyone. Id. No voter registration record containing the residence address of an individual who has furnished a post office box address shall be made available for inspection or copying. Id. Registration records are open for inspection at the office of the general registrar, but the Code does not guarantee the right to copy those records.

Certified abstracts of votes are subject to the Act, but the provisions of the Act do not apply until the results have been finally determined. Va. Code Ann. § 24.2-677. High school election votes need not be disclosed, based on a very broad reading of the scholastic records exclusion. Wall v. Fairfax County Sch. Bd., 252 Va. 156, 475 S.E.2d 803 (1996).

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J. Emergency Medical Services records

Patient information submitted to the State Health Commissioner and other persons overseeing the Virginia  EMS Registry is confidential.  Va. Code Ann. § 32.1-116.1.  The Commissioner must keep patient information confidential.  Va. Code Ann. § 32.1-116.2.

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K. Gun permits

The Department of State Police receive all orders issuing concealed handgun permits and enter the information into the Virginia Criminal Information Network.  This information must be withheld from public disclosure.  The Department may release information relating to non-residents holding permits and may publish statistical abstracts or summaries.  Va. Code Ann. § 18.2-308.07.

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L. Homeland security and anti-terrorism measures

Virginia Code § 2.2-3705.2 generally addresses excluded records relating to public safety.  The key provision relating to vulnerability assessments, infrastructure protection and surveillance is Va. Code Ann. § 2.2-3705.2.14.

The Governor or agencies acting on his behalf may receive information, voluntarily submitted from both public and nonpublic entities, related to the protection of the nation's critical infrastructure sectors and components that are located in Virginia or affect the health, safety, and welfare of the citizens of Virginia. Information submitted by any public or nonpublic entity in accordance with the procedures set forth in § 2.2-3705.2.14 shall not be disclosed unless: (1) it is requested by law-enforcement authorities in furtherance of an official investigation or the prosecution of a criminal act; (2) the agency holding the record is served with a proper judicial order; or (3) the agency holding the record has obtained the written consent to release the information from the entity voluntarily submitting it. Va. Code Ann. § 44-146.22.B.

Virginia Code § 44-146.18.B.3 limits disclosure of assessments and preparedness plans to prevent, respond to, and recover from all disasters including acts of terrorism.

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M. Hospital reports

Hospitals have numerous data gathering and reporting obligations beyond the scope of this outline.  It is best to search the Code for these provisions.  Hospital authorities must report their activities annually to the mayor of the city they serve. These reports are not subject to any exclusion under the Act. Va. Code Ann. § 15.2-5318.

Patient records are excluded from required disclosure under Va. Code Ann. § 2.2-3705.5.1.

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N. Personnel records

Personnel records concerning identifiable individuals are generally excluded. Contracts between public officers and a public body may not be withheld. Va. Code Ann. § 2.2-3705.1.1. Personnel records of a terminated employee must be produced under the Act where that employee waives all claims of confidentiality. Concerned Citizens for Educational Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 210 (City of Richmond Cir. Ct. 1997).

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1. Salary

Official salary or rates of pay of all employees receiving in excess of $10,000 annually are open to the public.  Va. Code Ann. § 2.2-3705.1.1.

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2. Disciplinary records

Disciplinary records are generally excluded. Va. Code Ann. § 2.2-3705.1.1. In addition, contracts settling employment disputes are excluded from public access. Va. Code Ann. § 2.2-3705.1.1.

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3. Applications

Applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107 are subject to the Act. Va. Code Ann. § 2.2-3705.1.

Applications for admission to examinations or for licensure of professions regulated by the Department of Health Professions are excluded.  Va. Code Ann. § 2.2-3705.5.2.

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4. Personally identifying information

The collection, disclosure, or display of Social Security Numbers in government data systems is governed by Va. Code Ann. § 2.2-3808.

Social Security Numbers and driver’s license numbers are included in specific exclusions in the Act. See, e.g., Va. Code § 2.2-3705.7.16 (concerning data collected at toll facilities).

“Personal contact information” including home or business addresses, email addresses and telephone numbers, provided to a public body for purposes of receiving emails from the public body are excluded.  Va. Code Ann. § 2.2-3705.1.10.  The data subject may affirmatively opt out of this exclusion.

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5. Expense reports

Records of all allowances or reimbursements paid to any officer, official or employee of a public body are open. Va. Code Ann. § 2.2-3705.1.1.

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6. Evaluations/performance reviews

Performance and evaluation matters fall within the general personnel exclusion. See Va. Code Ann. § 2.2-3705.1.1.

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7. Complaints filed against employees

Complaints appear to fall within the language of the general personnel exclusion. See Va. Code Ann. § 2.2-3705.1.1.

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8. Other

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O. Police records

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1. Accident reports

No special rule for accident reports. General principles of access under Va. Code Ann. § 2.2-3706 apply.

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2. Police blotter

All public bodies engaged in criminal law-enforcement activities shall provide the following records and information when requested in accordance with the provisions of the Act: (1) criminal incident information relating to felony offenses contained in any report, notes, electronic communication, or other document, including filings through an incident-based reporting system, which shall include: (a) a general description of the criminal activity reported; (b) the date and time the alleged crime was committed; (c) the general location where the alleged crime was committed; (d) the identity of the investigating officer or other point of contact; (e) a description of any injuries suffered or property damaged or stolen; and (f) any diagrams related to the alleged crime or the location where the alleged crime was committed. However, diagrams described in the critical infrastructure and threat assessment provisions in § 2.2-3705.2.14 and information therein shall be excluded from mandatory disclosure but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law.

A verbal response as agreed to by the requester and the public body is sufficient to satisfy these disclosure requirements.  Va. Code ann. § 2.2-3706.1.B.1.

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3. 911 tapes

911 records are noncriminal records presumed open pursuant to Va. Code Ann. § 2.2-3706.E., but personal, medical or financial information from disclosure may be withheld if the safety or privacy of any person would be jeopardized by it release. Va. Code Ann. § 2.2-3706.D.

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4. Investigatory records

“Criminal investigative files,” including any documents and information including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution, other than criminal incident information subject to mandatory release under the Act, are subject to discretionary withholding or release. Va. Code. Ann. § 2.2-3706.B.1.  However, Va. Code Ann. § 2.2-3706.1.B.2 requires the release of those records if the investigation or proceeding is not “ongoing.”  “Ongoing” is defined as “a case in which the prosecution has not been finally adjudicated, the investigation continues to gather evidence for a possible future criminal case, and such case would be jeopardized by the premature release of evidence.” Va. Code Ann. § 2.2-3706.1.A.  The mandatory release provisions in subsection B are further modified by Va. Code Ann. § 2.2-3706.1.D., which states that the mandatory release of records shall not apply if the release of such information would result in a long list of consequences, including interference in an ongoing investigation, deprivation of fair trial rights, unwarranted invasion of personal privacy, disclosure of confidential sources or investigative techniques, or endangerment of life or physical safety of an individual.

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5. Arrest records

Adult arrest records are subject to disclosure.  Va. Code Ann. § 2.2-3706.A.3.

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6. Compilations of criminal histories

No special rule.

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7. Victims

The identity of any victim is subject to discretionary disclosure unless disclosure is prohibited under § 19.2-11.2, the victim-witness protection statute. Va. Code. Ann. §2.2-3706.B.10.

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8. Confessions

No special rule.

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9. Confidential informants

The identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed. Va. Code. Ann. § 2.2-3706.C.

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10. Police techniques

Specific tactical plans, if their release would jeopardize law enforcement personnel or public safety, and staffing, logistics, or tactical plans of undercover operations or protective details are subject to exclusion and to discretionary release.  This does not permit the withholding of information concerning the overall costs of operations. Va. Code. Ann. § 2.2-3706.B.5 and 8.

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11. Mugshots

Adult arrestee photographs taken during intake or booking must be released, except for any delay that is necessary to avoid jeopardizing an investigation of a felony crime. Once the necessary no longer exists, the exemption does not apply. Va. Code. Ann. § 2.2-3706.A.1.

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12. Sex offender records

Sex Offender and Crimes Against Minors registry records are excluded from the Act but subject to discretionary release, but the Code does require information to be posted to the Internet pursuant to Va. Code Ann. §9.1-913. Va. Code. Ann. § 2.2-3706.B.11.

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13. Emergency medical services records

Patient information submitted to the State Health Commissioner and other persons under the statewide EMS plan is confidential.  Va. Code Ann. § 32.1-116.2.

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14. Police video (e.g, body camera footage, dashcam videos)

See discussion of criminal investigative files.

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15. Biometric data (e.g., fingerprints)

See discussion of criminal investigative files.

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16. Arrest/search warrants and supporting affidavits

The Act does not address this.  Search warrant procedures are governed by the criminal procedure title of the Code of Virginia.  See Va. Code Ann. § 19.2-54, governing public access and temporary sealing of search warrant materials.

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17. Physical evidence

See discussion of criminal investigative files.

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P. Prison, parole and probation reports

All records of persons imprisoned in penal institutions in Virginia are excluded and subject to discretionary release, provided the records relate to imprisonment. Va. Code. Ann. §2.2-3706.B.4.  The same rule of exclusion and discretionary release applies to persons under investigation or supervision by a local pretrial services agency, supervision or monitoring by a local probation services agency, or investigation or supervision by state probation and parole services. Va. Code. Ann. §2.2-3706.B.6.; see also Va. Code Ann. § 2.2-3703.A.1 (excluding Parole Board from Act).

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Q. Professional licensing records

There is a general discretionary exclusion for tests or examinations relating to the evaluation of qualifications for any license issued by a public body. Va. Code Ann. § 2.2-3705.1.4.  Under the provision concerning records recorded in or compiled exclusively for closed meetings, Va. Code Ann. § 2.2-3705.1.5., qualifying records relating to discussions of professional disciplinary proceedings may be withheld.  See Va. Code Ann. § 2.2-3711.A.27 (professional disciplinary proceedings closed meeting exclusion).

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R. Public utility records

Customer account information is subject to an exclusion for name, service address, and account information, but not including amounts billed and paid for service. Va. Code Ann. § 2.2-3705.7.7.

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S. Real estate appraisals, negotiations

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1. Appraisals

Appraisals and cost estimates of real property subject to a proposed purchase, sale or lease, prior to the completion of such purchase, sale or lease. Va. Code Ann. § 2.2-3705.1.8.

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2. Negotiations

Records compiled exclusively for use in a closed meeting are excluded. Va. Code Ann. § 2.2-3705.1.5. Under Va. Code Ann. § 2.2-3711.A.3, a closed meeting may be held to discuss acquisition of real property for a public purpose, or disposition of publicly held property, where public disclosure adversely affects the bargaining position of the public body.

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3. Transactions

Records of completed transactions are presumed open.

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4. Deeds, liens, foreclosures, title history

Such records are presumed open when in the possession of a public body subject to the Act. Access to such records when located in the Office of a Clerk of a Virginia circuit court are open pursuant to Va. Code Ann. § 17.1-208.

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5. Zoning records

The Act provides no specific exclusion for zoning records, except that names and identifying information of complainants of zoning enforcement complaints are excluded. Va. Code Ann. § 2.2-3705.3.8.

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T. School and university records

"Scholastic records" means those records containing information directly related to a student or an applicant for admission and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution.  Scholastic records include directory information, which includes the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height as a member of athletic teams, dates of attendance, degrees and awards received, and most recent previous educational agency or institution attended Va. Code Ann. § 2.2-3705.4.A.1. Scholastic records containing identifiable information are excluded under the Act, but the subjects of the records or the subject’s guardian will have access to the records. Va. Code Ann. § 2.2-3705.4.

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1. Athletic records

No special rule.

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2. Trustee records

No special rule.

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3. Student records

Scholastic records containing information concerning identifiable individuals are subject to discretionary withholding, except that such access shall not be denied to the person who is the subject of the records, or the parent or legal guardian of the student. No student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.

The parent or legal guardian of a student may prohibit, by written request, the release of any individual information regarding that student until the student reaches the age of 18 years. For scholastic records of students under the age of 18 years, the right of access may be asserted only by the student’s legal guardian or parent, including a noncustodial parent, unless such parent's parental rights have been terminated or a court of competent jurisdiction has restricted or denied such access. For scholastic records of students who are emancipated or attending a public institution of higher education in the Commonwealth, the right of access may be asserted by the student.

Any person who is the subject of any scholastic record and who is 18 years of age or older may waive these protections in writing, in which case such records shall be disclosed.  Va. Code Ann. § 2.2-3705.4.A.1.

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4. School foundation/fundraising/donor records

There is a discretionary exclusion for information maintained in connection with fundraising activities by or for a public institution of higher education that would reveal (i) personal fundraising strategies relating to identifiable donors or prospective donors or (ii) wealth assessments; estate, financial, or tax planning information; health-related information; employment, familial, or marital status information; electronic mail addresses, facsimile or telephone numbers; birth dates or social security numbers of identifiable donors or prospective donors. The exclusion shall not apply to protect from disclosure (a) information relating to the amount, date, purpose, and terms of the pledge or donation or the identity of the donor or (b) the identities of sponsors providing grants to or contracting with the institution for the performance of research services or other work or the terms and conditions of such grants or contracts. For purposes of clause (a), the identity of the donor may be withheld if (1) the donor has requested anonymity in connection with or as a condition of making a pledge or donation and (2) the pledge or donation does not impose terms or conditions directing academic decision-making.  Va. Code Ann. § 2.2-3705.4.A.7.

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5. Research material or publications

The Supreme Court of Virginia analyzed the status of a professor’s research materials in American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 756 S.E.2d 435 (2014).

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6. Other

Certain public institutions have agency-specific exclusions.  These include the University of Virginia Medical Center and Eastern Virginia Medical School, Va. Code Ann. § 2.2-3705.4.A.5; the Virginia Commonwealth University Health System Authority, Va. Code Ann. § 2.2-3705.7.14; and the University of Virginia and William and Mary endowments, Va. Code Ann. § 2.2-3705.7.12.

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U. State guard records

The Adjutant General maintains the records of the state militia pursuant to Va. Code Ann. § 44-16.  Such records are public records, as they fall within the definition in the Act.

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V. Tax records

The general exclusion for tax information is found in the taxation title of the Code at Va. Code Ann. § 58.1-3. The governing provision also sets out grounds for permissible or legally mandated sharing of tax information.

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W. Vital Statistics

“Vital records” are defined as “certificates or reports of births, deaths, fetal deaths, adoptions, marriages, divorces or annulments and amendment data related thereto.”  Va. Code Ann. § 32.1-249.  This information is subject to disclosure in accordance with Va. Code Ann. § 32.1-271, which specifies permissible disclosure including those allowed after the passage of defined time periods (100 years from birth or 25 years after death, marriage, divorce or annulment), for valid and substantial research purposes and or when a grandparent has demonstrated a need to access a grandchild’s records. Certified copies of vital records are obtained pursuant to Va. Code Ann. § 32.1-272.

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1. Birth certificates

See above.

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2. Marriage and divorce

See above.

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3. Death certificates

See above.

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4. Infectious disease and health epidemics

Patient level information that is collected for health case data reporting purposes are exempt from the Act and publicly released data must be a format so to ensure patients cannot be identified. Va. Code Ann. § 32.1-276.9.  A person making a disclosure of information subject to this confidentiality provision is subject to a civil penalty of up to $5,000 per violation.

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IV. Procedure for obtaining records

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A. How to start

Do as much homework as possible before submitting a request.  Look at the public body’s website to identify what records it may have and who the FOIA officer is. An informal courtesy call before making a submission is sometimes helpful to confirm what your research has shown and that you are targeting the correct public body.  Requests should be clear and specific to avoid wrangling over ambiguous language.  The narrower the request, consistent with your needs, the less likely it is that you will encounter resistance or delay.

All state public bodies subject to the Act, any county or city, any town with a population greater than 250, and any school board are obligated to make certain specified information public and to link to such information on its website.  The information is: (1) a plain English explanation of the rights of a requester, the procedures to obtain public records from the public body, and the responsibilities of the public body in complying with the Act; (2) contact information for the person designated by the public body as its FOIA officer to assist a requester in making a request or to respond to requests; (3) a general description, summary or index of the types of records maintained by that public body; (4) a general description, summary or list of any exemptions in the law that permit or require public records to be withheld from release; (5) any policy the public body has concerning the type of public records it routinely withholds from release as permitted by the Act or other law, and (6) a statement quoting the reasonable cost provisions of the Act governing permissible charges for access to records. Va. Code Ann. § 2.2-3704.1.A.

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1. Who receives a request?

The request is directed to the agency that is the custodian of the records that are being sought. Although it is not required, best practice is to identify and submit a request to the person designated by the custodian as its FOIA officer pursuant to Va. Code Ann. § 2.2-3704.2.

The Governor is not the custodian of records for each and every public body in the Commonwealth. Davis v. Allen, 44 Va. Cir. 237 (Richmond Cir. Ct. 1997).

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2. Does the law cover oral requests?

Yes.  The Act does not mandate that a request be written. It is advisable, however, that the request be written if the requester anticipates a need to document the date of the request or otherwise enforce his or her rights under the Act.

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3. Required contents of a written request

A request must be made with reasonable specificity.  The public body may require the requester to provide his or her name and legal address.

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4. Can the requester choose a format for receiving records?

Public bodies must produce records maintained in an electronic database in any tangible medium identified by the requester, including, where the public body has the capability, the option of posting the records on a website or delivering the records through an electronic mail address provided by the requester, if that medium is used by the public body in the regular course of business. No public body is required to produce records from an electronic database in a format not regularly used by the public body. The public body must make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs. The excision of exempt fields of information from a database or the conversion of data from one available format to another is not deemed the creation, preparation, or compilation of a new public record. Va. Code Ann. § 2.2-3704.G.

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5. Availability of expedited processing

There is no provision for expedited processing, but the Act presumes that the requester and public body may reach agreement for production on a schedule shorter than the mandated deadlines.

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B. How long to wait

Five Day Initial Response: The custodian must provide an initial response promptly, but in all cases within five working days of receipt of the request, informing the requester of one of the following:

Permissible Responses: That the public body will provide the records or that:

  • All of the requested records are being withheld. A written explanation must be provided explaining why the records are unavailable, making specific reference to the relevant code provision, and identifying with reasonable specificity the volume and subject matter of the withheld records. Va. Code Ann. § 2.2-3704.B.1.
  • The requested records are being provided in part and withheld in part. A written explanation must be provided explaining why some records are being withheld and must identify with reasonable particularity the withheld portions, naming the code provision that authorized withholding. Va. Code Ann. § 2.2-3704.B.2.
  • The requested records could not be found or do not exist. If the recipient knows that another public body is the custodian of the requested record, it shall provide contact information for the public body holding the record. Code Ann. § 2.2-3704.B.3.
  • It is not practically possible to provide the requested records or to determine whether they are available within the five working days prescribed and, therefore, the custodian shall have an additional seven (7) work days to provide one of the three aforementioned responses. Va. Code Ann. § 2.2-3704.B.4.
  • The exception to this timeline is the response to a request for criminal investigative files, in which case the law enforcement agency has 60 work days to provide one of the responses listed above. Va. Code Ann. § 2.2-3704.B.4.

Responding with an answer not found in the Act does not constitute a response for the Act’s purposes. Fenter v. Norfolk Airport Authority, 274 Va. 524, 532, 649 S.E.2d 704 (2007) (informing the requester that the request has been send to a federal authority is insufficient).  Failure to respond is a denial of the request and constitutes a violation of the Act.  Va. Code Ann. § 2.2-3704.E.

Additional Time to Respond: In addition to the unilateral triggering of an additional seven work days to respond, the custodian also may petition the appropriate court for additional time if there is an extraordinary volume of records requested and a response within the time limit will prevent the public body from meeting its operational responsibilities. Va. Code Ann. § 2.2-3704.C. The custodian must make reasonable efforts to reach agreement with the requester before petitioning the court.

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1. Statutory, regulatory or court-set time limits for agency response

Statutory response times are discussed above and are the only mandatory time limits.

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2. Informal telephone inquiry as to status

Not addressed in the Act.  Good practice suggests that such inquiry can be useful.

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3. Is delay recognized as a denial for appeal purposes?

A failure to respond to a request is deemed a denial and constitute a violation of the Act. Va. Code Ann. § 2.2-3704.E.

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4. Any other recourse to encourage a response

Not addressed.

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C. Administrative appeal

The Act has no provision for an administrative appeal. Informal “appeals” to a public body's senior staff or chief executive officer, or its attorney, can be useful in obtaining informal reconsideration of decisions to deny access.

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

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3. Fee issues

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4. Contents of appeal

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5. Waiting for a response

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6. Subsequent remedies

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D. Additional dispute resolution procedures

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1. Attorney General

The Attorney General has no special role in enforcement of the Act.  The Office of the Attorney General typically appears in the defense of state public bodies charged with violations of the Act.

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2. Ombudsperson

None.

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3. Other

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E. Court action

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1. Who may sue?

Any person, including the attorney for the Commonwealth (in Virginia this is the local prosecutor) acting in his official or individual capacity, denied the rights and privileges conferred by the Act may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction. Va. Code Ann. § 2.2-3713.A.

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2. Priority

Suits to enforce the provisions of the Act must be heard within seven days of filing, if the party against whom the petition is brought has received a copy of the petition at least three working days prior to filing. The three-day notice requirement does not apply to petitions to enforce the open meeting provisions of the Act. However, if the court is not in its regular term, the hearing must be given precedence over all other cases which are not otherwise given precedence. Va. Code Ann. § 2.2-3713.C.

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3. Pro se

The Act does not require that a natural person requester be represented by an attorney. It has been held that a person who appears pro se cannot receive attorneys’ fees for a suit to enforce the Act; however, he may recover court costs. Fiscella v. ARHA, 50 Va. Cir. 102 (Alexandria Cir. Ct. 1999). The Act partially overrides Virginia's general ethical prohibition on the appearance of a corporate party without counsel, permitting a corporate petitioner to appear through its officer, director, or managing agent in a general district court only. Va. Code Ann. § 2.2-3713.B.

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4. Issues the court will address

In accordance with a greater weight of the evidence standard, the Court will generally determine whether the public body has violated the Act by either failing to timely respond to the request or improperly withholding records which are not exempted by the Act. See RF&P Corp. v. Little, 247 Va. 309, 440 S.E.2d 908 (1994) (standard of proof). The public body bears the burden to prove its entitlement to an exclusion by a preponderance of the evidence. Va. Code Ann. § 2.2-3713.E.

"A citizen alleging violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713.A is not required to prove a lack of an adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available." Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 613 S.E.2d 449 (2005).

Request for Injunctive Relief: The Court will determine whether the violation was willful, knowing, and substantial. Injunction will not be granted where the procedural violation of the Act is minor and unintended. Shenandoah Publishing House Inc. v. Winchester City Council, 37 Va. Cir. 149 (City of Winchester Cir. Ct. 1994).

Entitlement to Fees: Where the petitioner has substantially prevailed on the merits of the case, attorneys' fees and reasonable costs shall be awarded, unless special circumstances make such an award unjust. Va. Code Ann. § 2.2-3713(D). See Redinger v. Casteen, 36 Va. Cir. 479 (City of Richmond Cir. Ct. 1995).  An award of attorneys’ fees under the Act may only be imposed against the public body with custody over the public records. See Virginia Educ. Ass'n v. Davison, 294 Va. 109, 121–22, 803 S.E.2d 320, 326 (2017).

Imposition of Penalties: The Court will determine whether there has been a willful and knowing violation of the Act. If so, a civil penalty will be imposed, as well as possibly a writ of mandamus or injunctive relief. Va. Code Ann. § 2.2-3714. RF&P Corporation v. Little, 247 Va. 309, 440 S.E.2d 908 (1994). Penalties will not be assessed where there is a technical violation of the Act. Mannix v. Washington County Board of Supervisors, 27 Va. Cir. 397 (Washington County Cir. Ct. 1992).

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a. Denial

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b. Fees for records

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c. Delays

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d. Patterns for future access (declaratory judgment)

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5. Pleading format

No special pleading format is required that would not be used in a petition for mandamus or for injunctive relief. The petition must be supported by an affidavit showing good cause.  Va. Code Ann. § 2.2-3713.A. See Bragg v. Bd. of Supervisors of Rappahannock County, 295 Va. 416, 813 S.E.2d 331 (2018)(discussing adequacy of affidavit submitted in support of petition).

A fillable form petition for injunctive or mandamus relief under the Act in a General District Court [Form DC-495] is available on the Supreme Court of Virginia’s website. See http://www.courts.state.va.us/forms/district/dc495.pdf.

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6. Time limit for filing suit

A petition for mandamus or prohibition should be filed without unreasonable delay.

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7. What court?

Suits brought to enforce the provisions of this Act against a local public body shall be filed in the general district court or the circuit court of the county or city from which the public body has been elected or appointed and in which the denial of rights occurred. Va. Code Ann. § 2.2-3713.A.1. Suits brought to enforce the provisions of this Act against a regional public body shall be filed in the general district court or the circuit court of the county or city where the principal office of the body is located.  Va. Code Ann. § 2.2-3713.A.2.  Suits against state instrumentalities may be brought in the general district court or circuit court at the place of the aggrieved party's residence or in the City of Richmond. Va. Code Ann. § 2.2-3713.A.3.

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8. Burden of proof

The public body bears the burden of proof to establish an exclusion by a preponderance of the evidence. No court is required to accord any weight to the determination of a public body as to whether an exclusion applies.

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9. Judicial remedies available

The main remedies are mandamus, injunction, and the imposition of civil penalties.

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10. Litigation expenses

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a. Attorney fees

Attorneys’ fees can be awarded where the petitioner substantially prevails on the merits of the case, where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713.D.

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b. Court and litigation costs

Reasonable costs, including costs and reasonable fees for expert witnesses, can be awarded where the petitioner substantially prevails and where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713.D.

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11. Fines

No criminal fines are contemplated by the Act.

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12. Other penalties

Civil penalties may be imposed on an individual where the court finds a willful and knowing violation of the Act. For a first offense, the penalty range is $500 to $2000.  For a second offense, the penalty range is $2000 to $5000.  Where a record has been altered or destroyed to evade compliance with the Act, a penalty of $100 per document may be imposed.  Va. Code Ann § 2.2-3714.

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13. Settlement, pros and cons

Given litigation costs and the unpredictability of outcomes, it is always worthwhile to seek a practical resolution of disputes out of court.

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F. Appealing initial court decisions

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1. Appeal routes

A suit brought in general district court may be appealed as a matter of right to circuit court for a de novo hearing. Appeals from circuit court are to the Supreme Court of Virginia, which accepts appeals in its discretion.  This procedure changes effective January 1, 2022, when appeals as a matter of right from all final orders and judgments in circuit court civil cases may be taken to the Virginia Court of Appels, the intermediate appellate court.

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2. Time limits for filing appeals

Appeals from general district court to circuit court must be taken within ten days of a final order or judgment. Va. Code Ann. § 16.1-106. Notice of appeal to the Supreme Court of Virginia from circuit court must be filed within 30 days of final judgment. Va. Supreme Court Rule 5:17. As noted above, effective January 1, 2022, consult the Code of Virginia and the Rules of the Supreme Court of Virginia for changes to appellate procedure driven by the expansion of the jurisdiction of the Virginia Court of Appeals.

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3. Contact of interested amici

The Virginia Press Association, 4860 Cox Road, Suite 150, Glen Allen, Virginia 23060, telephone (804) 521-7570.

The Virginia Association of Broadcasters, 250 West Main Street, Suite 100, Charlottesville, Virginia 22902, telephone (434) 977-3716.

The Virginia Coalition for Open Government, P.O. Box 2576, Williamsburg, Virginia 23187, telephone (540) 353-8264.

The Reporters Committee for Freedom of the Press on occasion participates in briefs amicus curiae in cases involving significant media law issues before federal and state appellate courts in Virginia.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

All meetings shall be open to the public as provided in Va. Code Ann. § 2.2-3707.A., unless the topic of discussion at such meetings falls within one of the enumerated exemptions in Va. Code Ann.   § 2.2-3711.A. [listing grounds for closed meetings) or Va. Code Ann. § 2.2-3707.01 (concerning meetings of the General Assembly and its committees).  No closed meeting shall be held unless the public body proposing to convene such meeting has followed the procedures for closing a meeting. Va. Code Ann. § 2.2-3712.

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B. What governments are subject to the law?

The Act applies to all 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; governing boards of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds." Va. Code Ann. § 2.2-3701.

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1. State

State entities are subject to the Act.

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2. County

Cities, counties, towns and political subdivisions are subject to the Act.

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3. Local or municipal

Cities, counties, towns and political subdivisions are subject to the Act.

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C. What bodies are covered by the law?

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1. Executive branch agencies

Executive branch agencies are covered by the Act.

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a. What officials are covered?

All public officials are covered unless their agency is categorically excluded from the Act under Va. Code Ann. § 2.2-3703.

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b. Are certain executive functions covered?

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c. Are only certain agencies subject to the act?

Excluded agencies are listed in Va. Code Ann. § 2.2-3703.

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2. Legislative bodies

The Act includes "any legislative body" in its definition of public bodies. Va. Code Ann. § 2.2-3701. Specific procedures and limitations regarding the General Assembly are addressed in Va. Code Ann. § 2.2-3707.01.

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3. Courts

Access to court proceedings is governed by case law applying constitutional principles. Court proceedings are presumed open under federal and Virginia case law interpreting the Constitutions of the United States and Virginia. Rules of access concerning Juvenile and Domestic Relations Courts are set forth in Title 16.2 of the Code of Virginia.  Fundamentally, access to juvenile criminal proceedings is subject to the rules in the circuit courts for all other criminal proceedings where the accused is 14 years of age or older and charged with a crime that would be an adult felony.  See Va. Code Ann. §16.1-302.

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4. Nongovernmental bodies receiving public funds or benefits

Nongovernmental organizations, corporations, and agencies that are not supported wholly or principally by public funds are not subject to the requirements of the Act. Va. Code Ann. § 2.2-3701.

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5. Nongovernmental groups whose members include governmental officials

"Public body" includes "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. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.” Va. Code Ann. § 2.2-3701.

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6. Multi-state or regional bodies

Regional public bodies are subject to the Act.  The Act is silent with regard to multi-state bodies.

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7. Advisory boards and commissions, quasi-governmental entities

"Public body" includes any “organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds,” and “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. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.” Va. Code Ann. § 2.2-3701.  It has been opined that certain citizen advisory boards are exempt from the Act. To qualify for the exemption, the committee (1) must not have been created by a public body, rather than by a member of the body; (2) must not perform a function delegated to it by the public body; (3) does not advise a public body; and (4) must not receive any public funds, including reimbursement for expenses. 1979 Va. Op. Atty. Gen. 316 (April 3, 1979).

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8. Other bodies to which governmental or public functions are delegated

"Public body" includes "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. Va. Code Ann. § 2.2-3701 (definition of “public body”).

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9. Appointed as well as elected bodies

Elected and appointed bodies are subject to the Act. Va. Code Ann. § 2.2-3701 (definition of “public body”).

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D. What constitutes a meeting subject to the law

"Meetings" is defined as "the meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2,  as a body or entity, or as an informal assemblage of (i) as many as three members, or (ii) a quorum, if less than three, of the constituent membership . . . of any public body." Va. Code Ann. § 2.2-3701.

Members-elect do not count toward the number necessary to constitute a meeting under the VFOIA. See Beck v. Shelton, 267 Va. 482, 488, 593 S.E.2d 195, 198 (2004).

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1. Number that must be present

A meeting may include an informal assemblage of as many as three members, or a quorum if fewer than three of the constituent membership. Va. Code Ann. § 2.2-3701 (definition of “meeting”).

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a. Must a minimum number be present to constitute a "meeting"?

Three members, or a quorum if less than three. Va. Code Ann. § 2.2-3701 (definition of “meeting”).

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b. What effect does absence of a quorum have?

Unless a departure from the procedures in the Act is specifically authorized by law, no vote of any kind of the membership, or any part thereof, of a public body shall be taken to authorize the transaction of public business except in accordance with the Act.  This would necessarily include the quorum requirement.  Va. Code Ann. § 2.2-3710.A.

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2. Nature of business subject to the law

The Act applies if the public body's business will be discussed or transacted in any way. Va. Code Ann. § 2.2-3701.

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a. "Information gathering" and "fact-finding" sessions

Work sessions fall within the definition of “meetings.” Va. Code Ann. § 2.2-3701. However, one court opinion suggests that an interagency "information gathering" session was not a meeting within the scope of this section. Nageotte v. Board of Supervisors, 223 Va. 259, 269, 288 S.E.2d 423 (1982).

Public Gatherings: Where two city employees and three members of City Council were separately invited to a gathering at a street intersection to raise awareness over traffic concerns, no meeting within the meaning of the VFOIA took place. Beck v. Shelton, 267 Va. 482, 493-94, 593 S.E.2d 195, 200-01 (2004). Public gatherings of officials that do not involve the discussion or transaction of public business do not fall within the definition of “meetings.” Va. Code Ann. § 2.2-3701.

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b. Deliberation toward decisions

A meeting held to discuss or transact public business is still a meeting within the meaning of the Act even where no votes are taken or decisions made. Va. Code Ann. § 2.2-3701. One court has observed that officially transacting public business “contemplates a broad view extending not only to the taking of an official vote but also to the peripheral discussions surrounding the vote.” WDBJ Television Inc. v. Roanoke County Supervisors, 4 Va. Cir. 349 (City of Roanoke Cir. Ct. 1985).

Non-Public Business: A workshop meeting of a Board of Supervisors with an outside professional to discuss their communication and decision making skills is not a meeting subject to the provisions of this section. WDBJ Television Inc. v. Roanoke County Supervisors, 4 Va. Cir. 349 (City of Roanoke Cir. Ct. 1985).

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3. Electronic meetings

All public bodies may conduct any meeting wherein the public business is discussed or transacted through electronic communication means under certain circumstances and if certain procedures are followed. Va. Code Ann. § 2.2-3708.2.A.  See the Act for additional circumstances and procedures for meetings by electronic communication of regional public bodies and state public bodies. Va. Code Ann. § 2.2-3708.2.B. and D.  The circumstances and procedures for meetings by electronic communication shall not be construed to prohibit the use of interactive audio or video means to expand public participation. Va. Code Ann. § 2.2-3708.E.

No regular, special, or reconvened session of the General Assembly held pursuant to Article IV, Section 6 of the Constitution of Virginia shall be conducted using electronic communication means pursuant § 2.2-3708.2. Va. Code Ann. § 2.2-3707.01.D.

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a. Conference calls and video/Internet conferencing

All public bodies may conduct any meeting wherein the public business is discussed or transacted through electronic communication means under specified circumstances if certain procedures are followed. Va. Code Ann. § 2.2-3708.2.  “‘Electronic communication’ means the use of technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities to transmit or receive information.” Va. Code Ann. § 2.2-3701.

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b. E-mail

Physical presence is required for all non-electronic meetings. The statute governing electronic meetings provides that the voices of remote participants must be heard by the public, eliminating by implication the use of email for meetings. Email is a “record” under the Act.  See also Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 200 (2004) (determining that e-mail communications at issue did not constitute a "meeting" under FOIA).

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c. Text messages

Physical presence is required for all non-electronic meetings.  The statute governing electronic meetings provides that the voices of remote participants must be heard by the public, eliminating by implication the use of text messaging for meetings.

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d. Instant messaging

Physical presence is required for all non-electronic meetings.  The statute governing electronic meetings provides that the voices of remote participants must be heard by the public, eliminating by implication the use of instant messaging for meetings.

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e. Social media and online discussion boards

Physical presence is required for all non-electronic meetings.  The statute governing electronic meetings provides that the voices of remote participants must be heard by the public, eliminating by implication the use of any social media or online platforms for meetings.

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

"Regular meeting" is not a defined term. One may infer from Va. Code Ann. § 2.2-3707.D. that a “regular” meeting is any meeting not a special, emergency , or continued meeting.

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b. Notice

Notice of meetings is addressed comprehensively in Va. Code Ann. § 2.2-3707.C. through E.  Every public body shall give notice of the date, time, and location of its meetings by posting on its official website, placing notice in a prominent public location where its notices are regularly posted, and placing it in the offices of its clerk or chief administrator. The notice shall be posted at least three working days prior to the meeting. Va. Code Ann.  State public bodies must post notice of their meetings on the Commonwealth’s electronic calendar. § 2.2-3707.C.

The public body shall provide notice of all meetings directly to each person requesting notification.  A written request for notice may be filed annually and must include the name, address, zip code, daytime telephone number, electronic mail address, and organization of the requester.  Va. Code Ann. § 2.2-3707.E.

At least one copy of the proposed agenda and all agenda packets and materials provided to members of the public body, unless the materials are excluded under the Act, shall be made available for inspection by the public at the same time the documents are provided to the members of the public body. Va. Code Ann. § 2.2-3707.F.

Failure to comply with the requirements of the Act concerning meetings is subject to remedies as provided in the Act. See Va. Code Ann. § 2.2-3714.

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c. Minutes

Minutes shall be recorded at all open meetings except those of (i) the committees of the General Assembly; (ii) legislative interim study commissions and committees, including the Virginia Code commission; (iii) study committees or commissions appointed by the Governor; and (iv) study commissions or study committees or any other committees, or subcommittees appointed by the governing bodies or school boards of counties, cities and towns, except where the membership of any such bodies includes a majority of the governing body of a county, city or town or school board. Minutes, including draft minutes, and all other records of open meetings, including audio or audio-visual records are public records and subject to the provisions of the Act. Va. Code Ann. § 2.2-3707.H.

Minutes shall be in writing and shall include (a) the date, time, and location of the meeting; (b) the members of the public body recorded as present and absent; and (c) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. In addition, for electronic communication meetings conducted in accordance with § 2.2–3708.2, minutes of state public bodies shall include (1) the identity of the members of the public body at each remote location identified in the notice who participated in the meeting through electronic communication means, (2) the identity of the members of the public body who were physically assembled at the primary or central meeting location, and (3) the identity of the members of the public body who were not present at the locations identified in clauses (1) and (2) but who monitored such meeting through electronic communication means. Va. Code Ann. § 2.2-3707.H.

If the public body chooses to go into a closed meeting, the minutes of the open meeting shall include a statement which makes specific reference to the relevant exemption and identifies the matters to be discussed. Va. Code Ann. § 2.2-3712.A. The minutes must also include a certification that the closed potion of the meeting was limited to matters lawfully exempted from the open meeting requirement.  Va. Code Ann. § 2.2-3712.D.  If the public body meets through electronic communication means, minutes must be recorded and the reason for the meeting must be outlined in the minutes. Va. Code Ann. § 2.2-3708.2.

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2. Special or emergency meetings

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a. Definition

"Emergency" is defined in the Act as “an unforeseen circumstance rendering the notice requirements” of the Act “impossible or impracticable and which circumstance requires immediate action.” Va. Code Ann. § 2.2-3701. A public body may conduct an emergency meeting by electronic communication means with the quorum requirement suspended under circumstances stated, and employing the procedures specified, in Va. Code Ann. § 2.2-2708.2.A.3. (declared state of emergency).

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b. Notice requirements

Notice, reasonable under the circumstance, of special, emergency, or continued meetings must be given contemporaneously with the notice provided to members of the public body conducting the meeting. Va. Code Ann. § 2.2-3707.D.

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c. Minutes

For electronic meetings held in an emergency, the nature of the emergency must be stated in the minutes of the emergency meeting. Va. Code Ann. § 2.2-3708.2.A.3 and D.7.

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3. Closed meetings or executive sessions

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a. Definition

The Act defines “closed meeting” as a meeting from which the public may be excluded.  Va. Code Ann. § 2.2-3701.  During a properly convened open meeting, a public body may vote, pursuant to the procedures specified in Va. Code Ann. § 2.2-3712.A., to convene in a closed session for the purpose of discussing any one of the subject matters enumerated in Va. Code Ann. § 2.2-3711 or other law specifically authorizing closed meetings..

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b. Notice requirements

The notice requirements governing regular meetings are applicable given that the public body must be in a properly convened meeting before members may vote to go into closed session. Once the open meeting is convened, the public body must move and vote in accordance with the provisions of Va. Code Ann. § 2.2-3712. Prior notice of closed meetings is not mandated, but the intention to conduct a closed meeting is typically disclosed in meeting agendas distributed in advance of regular meetings. An exception exists to the notice requirement when the public body is holding a closed meeting solely for the purpose of interviewing candidates for the position of chief administrative officer. For such interview, the public body must announce it will be holding closed meetings for that purpose within the next fifteen days. Va. Code. Ann. § 2.2-3712.B.

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c. Minutes

Minutes of a closed meeting may be taken but are not required.  Such minutes are not subject to mandatory public disclosure.  Va. Code Ann. § 2.2-3712.I.

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d. Requirement to meet in public before closing meeting

The motion to go into closed or executive session must be made during a properly convened open meeting. Va. Code Ann. § 2.2-3712.A.

 

convened open meeting. Va. Code Ann. § 2.2-3712.A.

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e. Requirement to state statutory authority for closing meetings before closure

A statement shall be included in the minutes of the open meeting which shall (i) identify the subject matter of the closed meeting; (ii) state the purpose of the meeting as authorized by § 2.2-3711.A. or other provision of law, and (iii) cite specifically the provision of law authorizing the closed meeting. Va. Code Ann. § 2.2-3712.A. A general reference to the Act or its authorized closed meeting exclusions shall not be sufficient. See Cole v. Smyth County Board of Supervisors, 298 Va. 625, 639-40, 842 S.E.2d 389, 395-96 (2020).

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f. Tape recording requirements

Tape recordings of meetings is permitted.

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F. Recording/broadcast of meetings

Any person may photograph, film, record or otherwise reproduce any portion of a meeting required to be open. The public body may adopt rules with respect to the placement and use of recording and broadcasting equipment so as to minimize interference. Va. Code Ann. § 2.2-3707.G.

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1. Sound recordings allowed

Any person may record any portion of a meeting required to be open. Va. Code Ann. § 2.2-3707.G.

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2. Photographic recordings allowed

Any person may photograph or film any portion of a meeting required to be open. Va. Code Ann. § 2.2-3707.G.

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G. Access to meeting materials, reports and agendas

A copy of the proposed agenda, all agenda packets, and all non-exempt materials furnished to members of a public body for a meeting must be made available for public inspection at the same time the documents are furnished to members of the public body.  Va. Code Ann. § 2.2-3707.F.

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H. Are there sanctions for noncompliance?

Yes.  See Va. Code Ann. §§ 2.2-3713 and 3714 (addressing enforcement and penalties). See generally White Dog Publishing v. Culpeper Bd. of Sup., 272 Va. 377,  388, 634 S.E.2d 334, 340-41 (2006) (finding violation of closed meeting procedures and remanding for imposition of attorneys’ fees award).

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A. Exemptions in the open meetings statute

Note: the language below describing open meeting exclusions includes some close paraphrasing and some direct quotation from the statutes.  For precise, current statutory language see the Code of Virginia.

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1. Character of exemptions

The grounds on which a public body “may” hold a closed meeting are specified in Va. Code Ann. § 2.2-3711.A.  These exclusions are to be narrowly construed "in order that no thing which should be public may be hidden from any person." Hale v. Washington County Sch. Bd., 241 Va. 76, 79, 400 S.E.2d 175, 176 (1991) (quoting Va. Code Ann. § § 2.2-3700); Danville v. Laird, 223 Va. 271, 288 S.E.2d 429 (1982).

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2. Description of each exemption

a. Personnel Matters: Discussion of candidates for employment; assignment, performance, salaries, disciplining or resignation of specific public officers; and evaluation of performance of departments or schools of public institutions of higher education where the evaluation will necessarily involve discussion of the performance of specific individuals. Also provides that a teacher, on written request, may be present in a closed meeting where discussion involves the teacher's disciplining of a student and student is also present. This exclusion may not be used to discuss compensation matters that affect the membership of the public body collectively. Va. Code Ann. § 2.2-3711.A.1.

b. Admission and Discipline Matters: Discussion concerning admission or discipline, or that would require the disclosure of information in a scholastic record, of student(s), of any public institution of higher education or any state school system. Va. Code Ann. § 2.2-3711.A.2. The student, the parent or legal guardian of a minor student, and legal counsel for the student may attend a closed meeting where evidence is presented.

c. Real Property: Discussion of the acquisition of real property for public purpose, or of the disposition of publicly held real property, where public discussion would adversely affect the bargaining position of the public body. Va. Code Ann. § 2.2-3711.A.3.

d. Privacy of Individuals: Protection of the privacy of individuals in personal matters not related to public business. Va. Code Ann. § 2.2-3711.A.4.

e. Prospective Business or Industry Expansion: Discussions where no previous announcement has been made of the business' or industry's interest in locating or expanding in the community. Va. Code Ann. § 2.2-3711.A.5.

f. Investment of Public Funds: Where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected. Va. Code Ann. § 2.2-3711.A.6.

g. Litigation Advice: Discussion with legal counsel, staff members or consultants pertaining to actual or probable litigation. The mere presence of, or consultation with, an attorney at a meeting is not sufficient grounds for closure. Va. Code Ann. § 2.2-3711.A.7. See Marsh v. Richmond Newspapers, Inc., 223 Va. 245, 288 S.E.2d 415 (1982) (The governing body need not disclose in detail the legal matter or legal issues to be considered.). This provision is best interpreted as being aimed at litigation work product protection.

h. Legal Consultation and Advice: Discussion with legal counsel employed or retained by a public body regarding specific legal matters. The mere presence of, or consultation with, an attorney at a meeting is not sufficient grounds for closure. Va. Code Ann. §2.2-3711.A.8. This provision is best interpreted to protect the attorney-client privilege of the public body.

i. Discussion of Gifts, Fundraising, and Bequests to State Institutions of Higher Education: Discussion by governing boards of public institutions of higher education, of matters relating to gifts, bequests and fundraising activities, and grants or contracts for services or work to be performed by such institution. However, if the gifts, financial contributions, or bequests are made by a foreign government or foreign person, the terms and conditions shall be subject to disclosure upon written request. Va. Code Ann. § 2.2-3711.A.9.

j. Discussions of Gifts, Bequests, and Grants to Specified Entities: Discussion by boards of trustees relating to specific gifts, bequests, and grants from private sources to Virginia Museum of Fine Arts, the Virginia Museum of Natural History, the Jamestown-Yorktown Foundation, the Fort Monroe Authority, and the Science Museum of Virginia. Va. Code Ann. § 2.2-3711.A.10.

k. Discussions Regarding Honorary Degrees and Special Awards: May be exempt from the open meeting provisions. Va. Code Ann. § 2.2-3711.A.11.

l. Tests and Examinations: Discussion of tests, examinations or other records excluded pursuant to § 2.2-3705.1.4. (student, employee or licensee qualification and evaluation testing). Va. Code Ann. § 2.2-3711.A.12.

m. Disciplinary Action Against a General Assembly Member: Discussion by appropriate legislative committees of possible disciplinary action arising out of the possible inadequacy of the disclosure statement filed by the member. The member may request in writing that the meeting not be closed. Va. Code Ann. § 2.2-3711.A.13.

n. Negotiation of Hazardous Waste Siting Agreements: May be exempt from the open meeting requirement if the governing body finds that an open meeting will have an adverse effect upon the negotiating position of the government body or the establishment of terms and conditions of the agreement. Va. Code Ann. § 2.2-3711.A.14.

o. Forecasts or Estimates of General and Non-General Fund Revenues: Discussion by the governor and any economic advisory board reviewing economic forecasts and estimating revenues. Va. Code Ann. § 2.2-3711.A.15.

p. Medical and Mental Records: Discussion of medical and mental records excluded under § 2.2-3705.5.1. Va. Code Ann. § 2.2-3711.A.16.

q. State Lottery Information: Deliberations of Virginia Lottery Board concerning license denial or revocation; discussion or review of proprietary lottery game information excluded under Va. Code Ann.§§ 2.23705.3.6 and 3705.7.11. Va. Code Ann. § 2.2-3711.A.17.

r. Board of Corrections Anonymous Tips: Discussion by Board of prisoner tips concerning criminal activity, potential escapes or other extraordinary services provided anonymously and with risk to life or safety. Va. Code Ann. § 2.2-3711.A.18.

s. Public Safety Plans Related to Terrorism: Discussion of plans relating to terrorist activity or cybersecurity threats, and discussion of records excludable under Va. Code Ann. 2.2-3705.2.2 or 14. Va. Code Ann. § 2.2-3711.A.19.

t. Investment Information Concerning the Virginia Retirement System, any local retirement system, the Virginia College Savings Plan or the Board of Visitors of the University of Virginia: Discussion regarding the acquisition, holding or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, to the extent that such discussion (i) concerns confidential analyses prepared for the covered public body and provided to the public body under a promise of confidentiality, of the future value of such ownership interest or the future financial performance of the entity, and (ii) would have an adverse effect on the value of the investment to be acquired, held or disposed of by the covered public body. Nothing in this subdivision may be construed to prevent the disclosure of information relating to the identity of any investment held, the amount invested or the present value of such investment. Va. Code Ann. § 2.2-3711.A.20.

u. Discussions of Deaths by Child and Adult Fatality Review Teams and similar entities: Discussion of individual death cases by enumerated public bodies. Va. Code Ann. § 2.2-3711.A.21.

v. Proprietary and Business-Related Information Related to University of Virginia Medical Center or Eastern Virginia Medical School: Discussions by University of Virginia Board of Visitors, Eastern Virginia Medical School Board of Visitors, or the management of University of Virginia Medical Center or Eastern Virginia Medical School of business or proprietary information and business development or marketing strategies, which, if disclosed, would be harmful to the competitive position of the medical center. Va. Code Ann. § 2.2-3711.A.22.

w. Proprietary and Business-Related Information Related to the Virginia Commonwealth University Health System Authority: Discussion by the Authority or the board of visitors of Virginia Commonwealth University of marketing or operational strategies which, if disclosed, would be harmful to the competitive position of the Authority; members of its medical and teaching staffs and qualifications for appointments thereto; and qualifications or evaluations of other employees. Va. Code Ann. § 2.2-3711.A.23. This subdivision also contains language that is redundant of other exclusions that relate to procurement activities and gifts or bequests.

x. Health Practitioners’ Monitoring Program Committee meetings within the Department of Health Professions: To the extent such discussions identify any practitioner who may be, or is, impaired pursuant to Va Code Ann. § 54.1-2515 et seq. Va. Code Ann. § 2.2-3711.A.24.

y. Meetings of the Board of the Virginia College Savings Plan: Where personal information about individuals requesting information about, or applying for, prepaid tuition contracts or savings trust account agreements is discussed. Va. Code Ann. § 2.2-3711.A.25.

z. Discussions of Trade Secrets by the Wireless Carrier E-911 Cost Recovery Subcommittee: Discussion of trade secrets related to the provision of wireless E-911 service. Va. Code Ann. § 2.2-3711.A.26.

aa. Portions of Disciplinary Proceedings: Any regulatory board within the Department of Professional and Occupational Regulation, Department of Health Professions, or the Board of Accountancy conducting disciplinary proceedings pursuant to § 2.2-4019 or § 2.2-4020 during which the board deliberates to reach a decision or meetings of health regulatory boards or conference committees of such boards to consider settlement proposals in pending disciplinary actions or modifications to previously issued board orders as requested by either of the parties. Va. Code Ann. § 2.2-3711.A.27.

bb. Information Excluded Under PPEA-PPTA Records Exclusion: Discussion or consideration by a responsible public entity or an affected locality or public entity, as those terms are defined in § 33.2-1800, of confidential proprietary records excluded from this chapter pursuant to § 2.2-3705.6.11. Va. Code Ann. § 2.2-3711.A.28.

cc. Bargaining Position or Negotiating Strategy: Discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body. Va. Code Ann. § 2.2-3711.A.29.

dd. Grant Application Records: Discussion or consideration by the Commonwealth Health Research Board of grant or loan application records excluded from the Act pursuant to § 2.2-3705.6.17. Va. Code Ann. § 2.2-3711.A.30.

ee. Sexually Violent Predators: Discussion or consideration by the Commitment Review Committee of records excluded from the Act under § 2.2-3705.2.5 relating to individuals subject to commitment as sexually violent predators under Va. Code Ann. § 37.2-900 et seq. Va. Code Ann. § 2.2-3711.A.31.

ff. Local Telecommunications and Cable Services Proprietary Records and Trade Secrets : Discussion or consideration of confidential proprietary records and trade secrets developed and held by a local public body that are subject to the exclusion in § 2.2-3705.6.18. Va. Code Ann. § 2.2-3711.A.32. This subdivision does not apply to the BVU Authority.

gg. Virginia Wireless Service Authorities Act: Discussion or consideration by a local authority created in accordance with the VWSAA (§ 15.2-5431.1 et seq.) of confidential proprietary records and trade secrets excluded pursuant to § 2.2-3705.6.19. Va. Code Ann. § 2.2-3711.A.33.

hh. Voting Security Matters: Discussion or consideration by the State Board of Elections or local electoral boards of voting security matters made confidential pursuant to §§ 24.2-410.2 or 625.1. Va. Code Ann. § 2.2-3711.A.34.

ii. Forensic Science Board or Scientific Advisory Committee: Discussion or consideration by the Forensic Science Board or Scientific Advisory Committee of criminal investigative files. Va. Code Ann. § 2.2-3711.A.35.

jj. Brown v. Board of Education Scholarship Program Awards Committee: Discussion or consideration by the committee concerning the annual maximum scholarship award, review and consider applications and requests for scholarship award renewal, and to cancel, rescind, or recover scholarship awards. Va. Code Ann. §2.2-3711.A.36.

kk. Virginia Port Authority: Discussion or consideration of information in records excluded from the Act pursuant to Va. Code Ann. § 2.2-3705.6.1. Va. Code. Ann. § 2.2-3711.A.37.

ll. Investments of Virginia Retirement System Board of Trustees, Local Retirement Systems and Virginia college Savings Plan: Discussion or consideration by the Board of Trustees of VRS acting pursuant to § 51.1-124.30 by the Investment Advisory Committee appointed pursuant to § 51.1-124.26 by any local retirement system, acting pursuant to § 51.1-803, by the Board of the Virginia College Savings Plan acting pursuant to § 23.1-706, or by the Virginia College Savings Plan's Investment Advisory Committee appointed pursuant to § 23.1-702 of information subject to exclusion under the Act pursuant to Va. Code Ann. § 2.2-3705.7.24. Va. Code Ann. § 2.2-3711.A.38.

mm. Economic Development Trade Secret Information: Discussion or consideration of certain records regarding trade secrets excluded from the Act pursuant to Va. Code Ann. § 2.2-3705.6.3. Va. Code Ann. § 2.2-3711A.39.

nn. Board of Education Licensure Matters: Discussion or consideration by the Board of Education of records relating to the denial, suspension, or revocation of teacher licenses excluded from the Act pursuant to Va. Code Ann. § 2.2-3705.2.11. Va. Code Ann. § 2.2-3711.A.40.

oo. Military Base Closure and Realignment: Those portions of meetings of the Virginia Military Advisory Council, commission created by executive order, or a local or regional military affairs organization appointed by a local governing body, during which there is discussion of information concerning military base closure or realignment subject to the public records exclusion under Va. Code Ann. § 2.2-3705.2.8. Va. Code Ann. § 2.2-3711.A.41.

pp. Veterans Services Foundation: Discussion or consideration by the Board of Trustees of the Veterans Services Foundation of information subject to exclusion from the Act pursuant to Va. Code Ann. § 2.2-3705.7.28. Va. Code Ann. § 2.2-3711.A.42.

qq. Virginia Tobacco Region Revitalization Commission: Discussion or consideration by the Commission of information in grant applications subject to exclusion under Va. Code Ann. § 2.2-3705.6.23. Va. Code. Ann. § 2.2-3711.A.43.

rr. Commercial Space Flight Authority: Discussion or consideration by the Board of the CSFA of rates, services and proprietary information subject to exclusion under Va. Code Ann. § 2.2-3705.6.24. Va. Code Ann. § 2.2-3711.A.44.

ss. Agricultural Landowner Information Provided to Certain Public Bodies: Discussion or consideration of information provided to Department of Environmental Quality, Department of Agriculture or other public bodies subject to exclusion under Va. Code Ann. § 2.2-3705.6.25 or § 10.1-104.7.E. Va. Code Ann. § 2.2-3711.A.45.

tt. Alcoholic Beverage Licensee Information: Discussion or consideration by the Board of the ABC Authority of information relating to licensee or permittee investigations and subject to exclusion under Va. Code Ann. § 2.2-3705.3.1. Va. Code Ann. § 2.2-3711.A.46.

uu. Virginia Innovation Partnership Authority: Discussion or consideration of grant, loan, or investment application information subject to exclusion under Va. Code Ann. § 2.2-3705.6.28. Va. Code Ann. § 2.2.-3711.A.47.

vv. Virginia Growth and Opportunity Board Grant Proposals: Discussion or development of grant proposals by a regional council established pursuant to Va. Code Ann. § 2.2-2484 to be submitted for consideration to the Virginia Growth and Opportunity Board. Va. Code Ann. § 2.2-3711.A.48.

ww. Assault and Abuse Review Team Discussions: Discussion of individual cases by sexual assault response team, child abuse response team, or adult abuse and neglect team established by Va. Code Ann. §§ 15.2-1627.4 or 1627.5, or § 63.2-1605. Va. Code Ann. § 2.2-3711.A.49.

xx. Economic Development Entities: Discussion of consideration by Board of Virginia Economic Development Partnership Authority of strategic, marketing or operational plans subject to exclusion under Va. Code Ann. § 2.2-3705.7.33. Va. Code Ann. § 2.2-3711.A.50.

yy. Virginia Economic Development Authority Information Received from Virginia Employment Commission: Portions of meeting to review and discuss information received by VEDPA from VEC pursuant to Va. Code Ann. § 60.2-114. Va. Code Ann. § 2.2-3711.A.51.

zz. Virginia Innovation Partnership Authority: Discussion or consideration by the Commonwealth of Virginia Innovation Partnership Authority (the Authority), an advisory committee of the Authority, or any other entity designated by the Authority, of information subject to the exclusion in § 2.2-3705.7.35. Va. Code Ann. § 2.2-3711.A.52.

aaa. Virginia Lottery Board: Deliberations of the Virginia Lottery Board conducted pursuant to § 58.1-4105 regarding the denial or revocation of a license of a casino gaming operator, or the refusal to issue, suspension of, or revocation of any license or permit related to casino gaming, and discussion, consideration, or review of matters related to investigations excluded from mandatory disclosure under Va. Code Ann. § 2.2-3711.A.53.

bbb. Sports Betting Appeals: Deliberations of the Virginia Lottery Board in an appeal conducted pursuant to § 58.1-4007 regarding the denial of, revocation of, suspension of, or refusal to renew any license or permit related to sports betting and any discussion, consideration, or review of matters related to investigations excluded from mandatory disclosure under § 2.2-3705.3.1. Va. Code Ann. § 2.2-3711.A.54.

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B. Any other statutory requirements for closed or open meetings

1. Discussion Must be Limited: The discussion in a closed session shall be restricted to the matters identified in the motion to convene in closed session. Va. Code Ann. § 2.2-3712.C.

2. Voting in Closed Session: No action of a public body becomes official until it is acted on in an open meeting. Va. Code Ann. §§ 2.2-3710.A. and 2.2-3712.H. No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion that shall have its substance reasonably identified in the open meeting. Va. Code Ann. § 2.2-3711.B.

3. Duty to Reconvene After Closed Session: At the conclusion of a closed session, the public body must reconvene in open session and shall take a roll call or recorded vote certifying that to the best of each member's knowledge the matters discussed were those exempted from the Act's requirements and were identified previously in the motion to convene in closed session. Va. Code Ann. § 2.2-3712.D.

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C. Court mandated opening, closing

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

Administrative adjudications are not governed by direct reference in the Act; rather, administrative case decisions are governed by Article 3 of the Administrative Process Act, Va. Code Ann. § 2.2-4018 et seq.   These statutes do not reference public access to hearings. However, the Virginia Court of Appeals has held that administrative disciplinary hearing held pursuant to the APA are “meetings” as defined in the Act and presumed open to the public.  Garada v. Va. Board of Medicine., 2018 WL 5259245 (2018) (unpublished opinion).

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1. Deliberations closed, but not fact-finding

See the Administrative Process Act, Va. Code Ann. § 2.2-4000, et seq.

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2. Only certain adjudications closed, i.e. under certain statutes

See the Administrative Process Act, Va. Code Ann. § 2.2-4000, et seq.

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B. Budget sessions

Budget sessions are subject to the Act and may not be considered as a whole in executive session. 1973-1974 Va. Op. Atty. Gen. 450 (April 10, 1974).   Discussion by the Governor and any economic advisory board reviewing forecasts of economic activity and estimating general and non-general fund revenues may be closed.  Va. Code Ann. § 2.2-3711.A.15.

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C. Business and industry relations

Discussion of prospective business or industry or expansion of existing business or industry may be closed.  Va. Code Ann. § 2.2-3711.A.5.

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D. Federal programs

No provision relates generally to federal programs.  Specific exclusions, noted elsewhere in this outline, reference relevant federal programs.

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E. Financial data of public bodies

Discussion of investment of public funds involving competition or bargaining is addressed in Va. Code Ann. § 2.2-3711.A.6.   Discussion of investment funds managed by or on behalf of identified agencies is addressed in Va. Code Ann. § 2.2-3711.A.20.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Numerous closed meeting exclusions address this topic.  Closed meeting rules address discussions of private business information by certain universities, Va. Code Ann. §§ 2.2-3711.A.22 and 23; the Wireless Carrier E-911 Cost Recovery Subcommittee, Va. Code Ann.§ 2.2-3711.A.26; local bodies providing telecommunications or cable television services, Va. Code Ann. § 2.2-3711.A.32; local authorities acting under the Virginia Wireless Service Authorities Act, Va. Code Ann. § 2.2-3711.A.33; the Virginia Port Authority, Va. Code Ann. § 2.2-3711.A.37; the Virginia Tobacco Region Revitalization Commission, Va. Code Ann. § 2.2-3711.A.43;  the Commercial Space Flight Authority, Va. Code Ann. § 2.2-3711.A.44; bodies governing resource management, Va. Code Ann. § 2.2-3711.A.45; the Virginia Innovation Partnership Authority, Va. Code Ann. § 2.2-3711.A.47 and 52.

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G. Gifts, trusts and honorary degrees

Discussion by boards of visitors of state institutions of higher education, of matters relating to gifts, bequests and fundraising activities, and grants or contracts for services or work to be performed by such institution may be closed. Va. Code Ann. § 2.2-3711.A.9.

Discussion by boards of trustees of the Virginia Museum of Fine Arts, the Virginia Museum of Natural History, the Jamestown-Yorktown Foundation and the Science Museum of Virginia may be closed when considering matters relating to specific private gifts, bequests, and grants. Va. Code Ann. § 2.2-3711.A.10.

Discussion of honorary degrees or special awards may be closed. Va. Code Ann. § 2.2-3711.A.11.

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H. Grand jury testimony by public employees

Grand juries are not subject to the Act. Va. Code Ann. § 2.2-3703.A.2.  Grand jury procedures are found at Va. Code Ann. § 19.2-191 et seq.

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I. Licensing examinations

Discussion or consideration of tests, examinations or information administered by or prepared for a public body for the purpose of evaluating the qualifications of a person for any license or certificate issued by a pubic body may be closed.  Va. Code § 2.2-3711.A.12 (referencing record exclusion in Va. Code § 2.2-3705.1.4.)

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J. Litigation, pending litigation or other attorney-client privileges

Discussions with legal counsel, staff or consultants pertaining to actual or probable litigation may be closed. Va. Code Ann. § 2.2-3711.A.7.

Discussions with legal counsel employed or retained by a public body requiring legal advice of counsel may be closed.  Va. Code Ann. § 2.2-3711.A.8.

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K. Negotiations and collective bargaining of public employees

A board of supervisors may authorize its employees to meet and bargain with employee groups. Such negotiations are not required to be public. However, those between public employees and the public body are required to be open. 1974-1975 Va. Op. Atty. Gen. 22 (November 19, 1974).  See also Va. Code Ann. § 2.2-3701 (The gathering of employees of a public body shall not be deemed a "meeting" subject to provisions of this chapter.)

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1. Any sessions regarding collective bargaining

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2. Only those between the public employees and the public body

A board of supervisors may authorize its employees to meet and bargain with employee groups. Such negotiations are not required to be public. However, those between public employees and the public body are required to be open. 1974-1975 Va. Op. Atty. Gen. 22 (November 19, 1974).  See also Va. Code Ann. § 2.2-3701 (The gathering of employees of a public body shall not be deemed a "meeting" subject to the Act.)

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L. Parole board meetings, or meetings involving parole board decisions

The Parole Board is not subject to the Act. Va. Code Ann. § 2.2-3703.A.1. Although meetings are not addressed by the statute, it mandates disclosure of certain aggregated statistical information and guidance documents.

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M. Patients, discussions on individual patients

Discussions and consideration of medical and mental health records containing information concerning identifiable individuals may be closed. Va. Code Ann. § 2.2-3711.A.16.

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N. Personnel matters

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1. Interviews for public employment

Interviews of prospective candidates for employment may be closed.  Va. Code Ann. § 2.2-3711.A.1.  However, special 15-day notice provisions are imposed for a closed meeting to interview candidates for the position of chief administrative officer.  Va. Code Ann. § 2.2-3712.B.

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2. Disciplinary matters, performance or ethics of public employees

Discussions concerning performance and discipline of specific individuals may be closed. Va. Code Ann. § 2.2-3711.A.1.

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3. Dismissal, considering dismissal of public employees

Discussions concerning demotion, discipline, or resignation of specific individuals may be closed. Va. Code Ann. § 2.2-3711.A.1.

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O. Real estate negotiations

Discussions concerning the acquisition of real property for a public purpose, or the disposition of publicly held real property may be closed, where open discussion would adversely affect the bargaining position on negotiating strategy of public body. Va. Code Ann. § 2.2-3711.A.3.

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P. Security, national and/or state, of buildings, personnel or other

Discussions concerning public safety relating to terrorist activity or cybersecurity threats is a permissible ground for a closed meeting. Va. Code Ann. § 2.2-3711.A.19.

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Q. Students, discussions on individual students

Discussions concerning admission or discipline of student(s) of any public institution of higher education or any state school system may be closed. Va. Code Ann. § 2.2-3711.A.2.

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IV. Procedure for asserting right of access

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A. When to challenge

Promptly challenging the closure of a meeting is recommended. Generally, an effort should be made to address the presiding officer or the clerk of the body, explain that the body is not complying with the requirements of the Act, and request reconsideration of the motion to close.

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

No.

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2. When barred from attending

The individual may petition the court for a writ of mandamus pursuant to the Act's enforcement provisions. Va. Code Ann. § 2.2-3713.

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3. To set aside decision

The Virginia Supreme Court has stated "[u]nless there is a specific statutory provision for invalidation, courts are generally wary of imposing such a penalty for violation of 'open meeting' or 'right to know' statutes." Nageotte v. Bd. of Supervisors of King George County, 223 Va. 259, 267 n.2, 288 S.E.2d 423, 427 n.2 (1982).

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4. For ruling on future meetings

The individual may petition the court for injunctive relief in accordance with the Act's enforcement provisions. Va. Code Ann. § 2.2-3713.A. Note that the court will not award injunctive relief where the violations are not willful and substantial. Nageotte v. Bd. of Supervisors of King George County, 223 Va. 259, 269-70, 288 S.E.2d 423 (1982).

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5. Other

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B. How to start

In accordance with the provisions of Va. Code Ann. § 2.2-3713, an aggrieved individual may petition the court for a writ of mandamus or an injunction for alleged violations of the Act. The petition must be accompanied by an affidavit showing good cause.

A form petition for injunctive or mandamus relief under the Act in a general district court [Form DC-495] is available on the Supreme Court of Virginia’s website. See http://www.courts.state.va.us/forms/district/dc495.pdf.

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1. Where to ask for ruling

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a. Administrative forum

There is no administrative forum in Virginia that reviews compliance with the Act. Recourse from a denial by a public body is directly to the general district or circuit courts.

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b. State attorney general

There is no remedy in Virginia involving petition or appeal to the Attorney General.

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c. Court

Suits brought to enforce the provisions of this Act shall be filed in the general district court or the circuit court of the county or city from which a local public body has been elected or appointed and in which the denial of rights occurred. Va. Code Ann. § 2.2-3713.A.1.  Suits against regional public bodies are brought in the general district court or circuit court in which the body’s principal place of business is located. Va. Code Ann. § 2.2-3713.A.2.  Suits against state instrumentalities may be brought in the general district court or circuit court at the place of the aggrieved party's residence or in the City of Richmond.  Va. Code Ann. § 2.2-3713.A.3.

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2. Applicable time limits

A petition for mandamus or prohibition should be filed without unreasonable delay.

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3. Contents of request for ruling

No special pleading form is required other than the form of a petition for mandamus or prohibition, but the pleading must be accompanied by an affidavit.

A form petition for injunctive or mandamus relief under the Act in a General District Court [Form DC-495] is available on the Supreme Court of Virginia’s website. See http://www.courts.state.va.us/forms/district/dc495.pdf.

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4. How long should you wait for a response

No governing rule.  However, the petition has priority on the docket as set forth in Va. Code Ann. § 2.2-3713.C.

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5. Are subsequent or concurrent measures (formal or informal) available?

No.

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C. Court review of administrative decision

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1. Who may sue?

Any citizen of the Commonwealth, including the Commonwealth's Attorney in their official or personal capacity, who has been denied rights and privileges under the Act may sue. Va. Code Ann. § 2.2-3713.A.

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2. Will the court give priority to the pleading?

Suits to enforce the provisions of the Act must be heard within seven (7) days of filing. However, if the court is not in its regular term, the hearing must be given precedence over all other cases which are not otherwise given precedence. Va. Code Ann. § 2.2-3713.C.

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3. Pro se possibility, advisability

The Act does not require that a natural person be represented by an attorney. In general district court, Va. Code Ann. § 2.2-3713.B. relaxes the general rule of Virginia law that a corporate entity must be represented by an attorney. Generally, assistance of counsel is advisable.

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4. What issues will the court address?

Burden of Proof: In accordance with a greater weight of the evidence standard, the Court will generally determine whether the public body has violated the Act. See RF&P Corp. v. Little, 247 Va. 309, 440 S.E.2d 908(1994) (standard of proof). The public body bears the burden to prove its entitlement to an exclusion by a preponderance of the evidence. Va. Code Ann. § 2.2-3713.E.

Mandamus: "A citizen alleging violation of the rights and privileges afforded by the FOIA and seeking relief by mandamus pursuant to Code § 2.2-3713.A is not required to prove a lack of an adequate remedy at law, nor can the mandamus proceeding be barred on the ground that there may be some other remedy at law available." Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 613 S.E.2d 449 (2005).

Request for Injunctive Relief: The Court will determine whether the violation was willful, knowing, and substantial. Injunction will not be granted where the procedural violation of the Act is minor and unintended. Shenandoah Publishing House Inc. v. Winchester City Council, 37 Va. Cir. 149 (Winchester Cir. Ct. 1994).

Imposition of Penalties: The Court will determine whether there has been a willful and knowing violation of the Act. If so, a civil penalty will be imposed, as well as possibly a writ of mandamus or injunctive relief. Va. Code Ann. § 2.2-3714. RF&P Corporation v. Little, 247 Va. 309, 440 S.E.2d 908 (1994). Penalties will not be assessed where there is a technical violation of the Act. Mannix v. Washington County Board of Supervisors, 27 Va. Cir. 397 (Washington Cir. Ct. 1992).

Entitlement to Fees: Where it has been proven that the petitioner substantially has prevailed in showing that there has been a violation of the Act, the Court then must determine whether there are special circumstances making an award of attorneys' fees unjust. Hale v. Washington County Sch. Bd., 241 Va. 76, 82, 400 S.E.2d 175, 178 (1991). See also Redinger v. Casteen, 36 Va. Cir. 479 (1995) (awarding fees); White Dog Publishing v. Culpeper Bd. of Sup., 272 Va. 377, 634 S.E.2d 334 (2006).

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a. Open the meeting

Although mandamus and injunctive relief are available, this remedy often is not available given that closure of a meeting has already taken place.

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b. Invalidate the decision

This remedy is often impractical and not likely to be awarded.  See Nageotte v. King George County, 223 Va. 259, 267 n. 2, 288 S.E.2d 423, 427 n.2 (1982). However, actions undertaken using procedures not authorized by the Act may be of questionable validity.  See Va. Code Ann. § 2.2-3710 (prohibiting votes not in compliance with the Act), 2.2-3712.H (prohibiting taking action on matters in closed meeting).

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c. Order future meetings open

The Court only will restrain a governing body from closing future meetings where there is evidence that there was a willful and substantial violation, and that the violation will likely occur again. Nageotte v. King George County, 223 Va. 259, 269-70, 288 S.E.2d 423, 428 (1982).

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5. Pleading format

Suits for injunctive relief or for a writ of mandamus are equitable remedies, and thus, a petition in the form of a complaint seeking equitable remedies is appropriate. It must be accompanied by a sworn affidavit.

A form petition for injunctive or mandamus relief under the Act in a General District Court [Form DC-95] is available on the Supreme Court of Virginia’s website. See http://www.courts.state.va.us/forms/district/dc495.pdf.

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6. Time limit for filing suit

Suit should be filed without unreasonable delay.

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7. What court?

Suits brought to enforce the provisions of this Act shall be filed in the general district court or the circuit court of the county or city from which the public body has been elected or appointed and in which the denial of rights occurred. Va. Code Ann. § 2.2-3713.A. Suits against state agencies or standing committees of the General Assembly shall be filed in the general district or circuit court of the residence of the aggrieved party or of the City of Richmond. Va. Code Ann. § 2.2-3713(A).

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8. Judicial remedies available

The primary remedies are a writ of mandamus or an injunction. The former compels compliance with the Act and the latter prohibits noncompliance.

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9. Availability of court costs and attorney's fees

Costs and fees will be awarded where the petitioner has substantially prevailed on the merits of the case and where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713.D. See Cole v. Smyth County Board of Supervisors, 298 Va. 625, 842 S.E.2d 389, 398 (2020).

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10. Fines

The Act does not provide for criminal fines.

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11. Other penalties

If the Court finds that the violation was willfully and knowingly made, it will impose upon the member of the public body, in his individual capacity, a civil penalty not less than $500.00 and not more than $2,000.00. The penalty for the second violation shall not be less than $2,000.00 nor more than $5,000.00. Va. Code Ann. § 2.2-3714.

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D. Appealing initial court decisions

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1. Appeal routes

A suit brought in General District Court may be appealed as a matter of right to Circuit Court for a de novo hearing. Appeals from Circuit Court are by petition to the Supreme Court of Virginia, which accepts appeals in its discretion.  This procedure changes effective January 1, 2022, when appeals as a matter of right from all final orders and judgments in Circuit Court civil cases may be taken to the Virginia Court of Appeals, the intermediate appellate court.

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2. Time limits for filing appeals

Appeals from general district court to circuit court must be taken within ten days of a final order or judgment. Va. Code Ann. § 16.1-106. Notice of appeal to the Supreme Court of Virginia from circuit court must be filed within 30 days of final judgment. Va. Supreme Court Rule 5:17. As noted above, effective January 1, 2022, consult the Code of Virginia and the Rules of the Supreme Court of Virginia for changes to appellate procedure driven by the expansion of the jurisdiction of the Virginia Court of Appeals.

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3. Contact of interested amici

The Virginia Press Association, 4860 Cox Road, Suite 150,  Glen Allen, Virginia 23060, telephone (804) 521-7570.

The Virginia Association of Broadcasters, 250 West Main Street, Suite 100, Charlottesville, Virginia 22902, telephone (434) 977-3716.

The Virginia Coalition for Open Government, P.O. Box 2576, Williamsburg, Virginia 23187-2576, telephone (540) 353-8264.

The Reporters Committee for Freedom of the Press on occasion participates in briefs amicus curiae in cases involving significant media law issues before Virginia’s state and federal appellate courts.

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V. Asserting a right to comment

Not addressed.

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A. Is there a right to participate in public meetings?

The Act does not address this issue.  Generally, public comment opportunities appear on meeting agendas.  The proposed agendas for meetings of state public bodies where at least one member has been appointed by the Governor shall state 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 Ann. § 2.2-3707.F. Local public body rules or procedures may require advance sign in to participate in public comment periods.

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B. Must a commenter give notice of intentions to comment?

Some public bodies impose advance sign-up periods.

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C. Can a public body limit comment?

Generally public bodies, as a matter of practice, enforce time limits and insist that tone and content be within bounds of civil discourse.

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D. How can a participant assert rights to comment?

One may appear at a meeting to comment during a designated segment of the meeting, subject to any applicable advance sign-up procedures.

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E. Are there sanctions for unapproved comment?

None are provided by statute, and inappropriate content or tone are monitored by the presiding officer.

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Appendix

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