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Virginia

Open Government Guide

Author

Craig T. Merritt, Esquire
David B. Lacy, Esquire
Christian & Barton, L.L.P.
909 East Main Street
Suite 1200
Richmond, Virginia 23219-3095

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Foreword

The Virginia General Assembly enacted the Virginia Freedom of Information Act ("the Act") in 1968. Through this Act, the legislature sought 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 has undergone continuous, annual revisions. Some amendments have strengthened the Act by authorizing the award of civil penalties and attorneys' fees for non-compliance, or by shifting the burden to prove the applicability of exclusions onto the public body. Other amendments, particularly the Act's steadily growing list of discretionary exclusions, have reduced its scope, clarity and effectiveness as a tool for public access to government. Finally, some amendments, particularly those relating to electronic meetings and records, have responded to technological changes in the way that information is recorded, processed and delivered.

The General Assembly has mandated that the Act 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.

These rules of construction are typically acknowledged by the courts, but not applied in practice. Virginia courts are often reluctant to provide a remedy under the Act unless there is a substantial and willful violation of its provisions. However, where such evidence is clear and beyond dispute, the courts have occasionally shown their willingness to penalize those who attempt to deny to the public that which they have a right to know.

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; its searchability is not good.  In addition, a substantial body of opinions has now 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.  For free access to the Code of Virginia in a well-organized format, use the Virginia Legislative Information System, http://leg1.state.va.us.

This outline addresses amendments to the Act passed during the 2018 session of the Virginia General Assembly that have not yet been incorporated into the Virginia Code and which do not become effective until July 1, 2018.  For a comprehensive review of the Act following the 2018 legislative sessions, see the Virginia Code.

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Open Records

I. Statute

A. Who can request records?

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. 809 (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 television and radio stations broadcasting in or into the Commonwealth. Va. Code Ann. § 2.2-3704.A.  Online-only media are not addressed.

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2. Purpose of request

  1. 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).

b. Reasonable Specificity Required: The Act provides that the request shall designate the requested documents with reasonable specificity. Va. Code Ann. § 2.2-3704.B.

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

The Act applies to “public records” in the custody of “public bodies,” which 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.”  Notably, the function of the entity and not its membership is the critical criterion, and a committee, subcommittee or entity is not excluded from coverage because it has private sector or citizen members. 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 this chapter, as is the Virginia Birth-Related Neurological Injury Compensation Program. 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 the coverage of the Act are: (a) the Virginia Parole Board, (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 lists records of the agency that include statistical summaries and guidance documents that must be available to the public.

There is no basis for these agencies to be excluded wholesale, as the apparent objectives of the statute could be accomplished by making them generally subject to the Act and excluding particularized records that may be sensitive.

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2. Legislative bodies

All legislative bodies qualify as a “public body” subject to the Act.  However, a party caucus is not a public body subject to the Act. See Op. Atty. Gen., Opinion No. 03-063 (January 6, 2004), 2004 WL 256973. See also Va. Code Ann. § 2.2-3707.01.C. (party caucus meetings not subject to open meeting rules under 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.

Access to judicial records both for courts of record and courts not of record is governed by other Virginia statutes and by case law. See Va. Code Ann. § 2.2-3705.5.  General district court record requirements are found at Va. Code Ann. § 16.1-69.53 et seq.  A new provision governing general district court access procedures, effective July 1, 2018, is found at Va. Code Ann. § 16.1-69.54:1.  Juvenile and domestic relations district court access is governed by Va. Code Ann. § 16.1-306.  Access to circuit court records is governed by  Va. Code Ann. § 17.1-208, which will also be subject to procedural amendments effective July 1, 2018.  Effective July 1, 2018, new definitions of “confidential” and “nonconfidential” court records will be found in Va. Code Ann. § 17.1-292.

The Executive Secretary of the Supreme Court of Virginia maintains a publicly viewable database of criminal case information as provided in Va. Code Ann. § 17.1-293.1.

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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, thus 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 can 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

None.

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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 is categorically excluded from the operation of the Act, it is subject to the Act.  The operative question is whether the public body with custody of the record may deny access in response to a request.  This may occur if (a) the record is made strictly confidential by law, often by a statute not embodied in the Act itself, or (b) the record may be withheld under a discretionary exclusion embodied in the Act.

There can be considerable 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 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 covers records in a fixed, tangible medium or stored in electronic form.

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 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 access under the Act.  Taylor v. Worrell Enterprises, 242 Va. 219, 409 S.E.2d 136 (1991).

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5. Electronic records

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. How is email treated?

Electronic mail falls within the definition of "public records" and is subject to disclosure. Va. Code Ann. § 2.2-3701. The subject matter determines whether the email qualifies as a public record, regardless of whether it is on public or private hardware. Burton v. Mann, 74 Va. Cir. 471, 474 (Loudoun Cir. Ct. 2008).

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7. How are text messages and instant messages treated?

Text messages and instant messages fall within the definition of “public record” and are subject to disclosure. Va. Code Ann. § 2.2-3701.  The analysis is analogous to email messages.

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8. How are social media postings treated?

Electronic messages fall within the definition of "public record" and are subject to disclosure. Va. Code Ann. § 2.2-3701. The analysis is analogous to email messages.

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9. Computer software

Public bodies generally do not give access to computer software purchased or licensed by, or developed by, a public body. Vendor proprietary information software acquired from a vendor for data processing use and in the official records 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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D. Fee provisions or practices

1. 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 certain topographical maps, harkening back to processes that have 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. 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. How are fees for electronic records determined?

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. Va. Code Ann. § 2.2-3704.G (incorporating general fee rules in subdivision 3704.F).

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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?

In a proceeding commenced pursuant to § 2.2-3713 against members of public bodies for a violation of § § 2.2-3704, 2.2-3705.1 through 2.2-3705.7, 2.2-3706, 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.

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G. Record-holder obligations

1. Processing records requests

The Act requires that a public record identified with reasonable particularity must be located and either produced or withheld in strict accordance with Va. Code Ann. § 2.2-3704.B.  There is no limitation on the thoroughness of the search obligation based on the difficulty of the search and retrieval.  The Act accommodates this by permitting the public body, by automatic extension of time, agreement with the requester, and if necessary application to court, to extend the time in which the response is to be made.  To the extent a deep search causes the public body to incur substantial actual search costs, the ability to charge the requester an amount not to exceed actual costs builds in a cost-benefit mechanism. See Va. Code Ann. § 2.2-3704.B., C. and F.

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2. Proactive disclosure requirements

Various agencies have requirements that they disclose statistical or other information.  Such requirements are located in the organic laws of each agency, and an exhaustive listing is beyond the scope of this guide.  Generally, the laws governing state agencies may be found in Title 2.2 of the Code of Virginia, or the statutes specific to the governance of each agency; 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 is variable 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.

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A. Exemptions in the open records statute

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 Act is 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 is structured to provide “exclusions” rather than “exemptions.”  Thus, absent a specific exemption unconditionally prohibiting its release (often located in a statute outside the Act), 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 listed in the Act. The sections of the Act establishing exclusions all begin with 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.”  See Va. Code Ann. §§ 2.2-3705.1 through 3705.7 (emphasis added).  Despite the clear language of the statutes, the Supreme Court of Virginia attempted to resolve the tension between “exemption” and “exclusion” by holding 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).

This structure has both positive and negative aspects.  Because the exclusions by their plain language permit the exercise of discretion, there is room for argument that a pubic body may exercise its discretion in favor of granting access to a requested record.  As a practical matter, public bodies treat the exclusions not as opportunities to exercise discretion and release information, but as rigid exemptions that bar public access, a safer way in some cases for a public employee to avoid controversy.

The Act is not patterned after the federal Freedom of Information Act.  Instead, it has evolved based on the premise that exclusions should be individually justified and narrowly drawn.  Over time, this approach has led to a proliferation of exclusions, some of which are conceptually repetitive and some of which create interpretive difficulty as a result of the inconsistent use of language.

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2. Discussion of each exemption

Exclusions from the Act are collected and organized loosely by subject matter.  Some exclusions might fairly fall into more than one category and their assignment to a particular Code section is somewhat arbitrary.  This subsection follows the organization of the Act.  Sections 3705.1 through 3705.7 address exclusions of general application (subparts a. through m., found in § 3705.1), exclusions relating to public safety (subparts n. through aa., found in § 3705.2), exclusions relating to administrative investigations (subparts bb. through mm., found in § 3705.3); exclusions relating to education and educational institutions (subparts nn. through uu., found in § 3705.4); exclusions relating to health and social services (subparts vv. through kkk., found in § 3705.5); exclusions relating to proprietary records and trade secrets (subparts lll. through rrrr., found in § 3705.6); and miscellaneous exclusions unique to certain public bodies (subparts ssss. through zzzzz., found in § 3705.7).

Note: the language below includes some close paraphrasing and some direct quotation.  For precise, current statutory language see the Code of Virginia.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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
  6. Vendor Computer Programs: Vendor proprietary information software which may be in the public records of a public body. Va. Code Ann. § 2.2-3705.1.6.
  7. 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.
  8. 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.
  9. 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.
  10. Personal information and email addresses: Personal information as defined in § 2.2-3801, including electronic mail addresses, furnished to a public body for the purpose of receiving electronic mail from the public body, provided that the electronic mail recipient has requested that the public body not disclose such information. However, access shall not be denied to the subject of the record. Va. Code Ann. § 2.2-3705.1.10.
  11. 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.
  12. Negotiation and award of a specific contract: Records 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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.
  27. 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:
  28. 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;
  29. 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;
  30. Surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational or transportation plans or protocols; or
  31. 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.

  1. 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. §2.2-3705.2.14.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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 such student shall be required.  Va. Code Ann. § 2.2-3705.4.A.1. and B.

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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 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.

aaa. 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.

bbb. 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.

ccc. 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., or (iv) by regional or local drug overdose fatality review teams.  Va. Code Ann. § 2.2-3705.5.7.

ddd. 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.

eee. 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.

fff. 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.

ggg. 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.

hhh. 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.

iii. 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.

jjj. 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.

kkk. 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.

lll. 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. [The effective date of this provision is contingent upon the receipt of federal funding for the related program.]

mmm. 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.

nnn. 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.

ooo. 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.

ppp. 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.

qqq. 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.

rrr. 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.

sss. 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.

ttt. 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.

uuu. 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.

vvv. 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.

www. 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.

xxx. 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.

yyy. 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.

zzz. 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.

aaaa. 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.

bbbb. 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.

cccc. 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.

dddd. Confidential Business Information in Grant Applications on Innovation and Health Research: Information relating to a grant or loan application, or accompanying a grant or loan application, to the Innovation and Entrepreneurship Investment Authority pursuant to Article 3 (§ 2.2-2233.1 et seq.) of Chapter 22 of Title 2.2 or 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.

eeee. 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.

ffff. 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.

gggg. Confidential Business Information Submitted to Department of Small Business and Supplier Diversity: Trade secrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.) 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.

hhhh. 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.

iiii. Confidential Business Information Provided to State Inspector General: 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 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.

jjjj. 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 as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), (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.

kkkk. 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.

llll. 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 as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (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.

mmmm. Confidential 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.

nnnn. Trade Secrets in Information Submitted to DEQ Under Waste Management Act: Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), 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.

oooo.  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.

pppp. Confidential Business Information Submitted to Virginia Research Investment Committee:  Information relating to a grant or loan application, or accompanying a grant or loan application, submitted to the Virginia Research Investment Committee established pursuant to Article 8 (§ 23.1-3130 et seq.) of Chapter 31 of Title 23.1, to the extent that such records would (i) reveal (a) trade secrets as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (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 or loan application; and memoranda, staff evaluations, or other information prepared by the Committee or its staff, or a reviewing entity pursuant to subsection D of § 23.1-3133, exclusively for the evaluation of grant or loan applications, including any scoring or prioritization documents prepared for and forwarded to the Committee pursuant to subsection D of § 23.1-3133.  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. § 2.2-3705.6.28.

qqqq. Confidential Business Information Provided in Connection with Solar Services 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 agreement, where disclosure of such information would (i) reveal (a) trade secrets of the private business as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.); (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.

rrrr. 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.

ssss. 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.

tttt. 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

uuuu. 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.”

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).

vvvv. Library Patron Identifiers: Information contained in library records that can be used to identify (i) both (a) any library patron who has borrowed material from a library and (b) the material such patron borrowed 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.

wwww. 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.

xxxx. 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.

yyyy. 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.

zzzz. 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.

aaaaa. 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.

bbbbb. 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.

ccccc. 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.

ddddd. 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.

eeeee. 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.

fffff. 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.

ggggg. 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.

hhhhh. 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.

iiiii. 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.

jjjjj. 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.  Va. Code Ann. § 2.2-3705.7.17.

kkkkk. 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.

lllll. Unclaimed Property Holder Audit Information:  Information pertaining to the planning, scheduling, and performance of examinations of holder records pursuant to the Uniform Disposition of Unclaimed Property Act (§ 55-210.1 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.

mmmmm. 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.

nnnnn.  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.

ooooo.  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.

ppppp. 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.

qqqqq. 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.

rrrrr. Trade Secrets Submitted to Virginia or Local Retirement System or Virginia College Savings Plan:  Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), 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.

sssss. Identification of Department of Corrections Executioners:  Information held by the Department of Corrections made confidential by § 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.

ttttt. 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.

uuuuu. 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.

vvvvv. 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 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.

wwwww. 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.

xxxxx. 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.

yyyyy. 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.

zzzzz. 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. 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.

aaaaaa. 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.

bbbbbb. Criminal Records: Criminal records are addressed comprehensively in Va. Code Ann.§2.2-3706.  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. Are segregable portions of records containing exempt material available?

Yes, 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 redaction of certain records was not required.

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III. Record categories - open or closed

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).

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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.

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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, 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. During the 2018 legislative session, the General Assembly added a generic trade secrets provision that to some degree addresses the problem, but made no comprehensive effort amend or delete existing provisions to eliminate redundancy and imprecision. See Va. Code Ann. § 2.2-3705.6.31.

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F. Contracts, proposals and bids

Disclosure of records relating to procurement transactions by state agencies is comprehensively addressed in 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, 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 under the statewide EMS plan is 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

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.

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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 (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 personnel 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 first five digits of a Social Security Number contained in a public record are excluded from the Act. Va. Code Ann. § 2.2-3815.A.

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.

“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.

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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. Other

O. Police records

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

“Criminal incident information” for felony offenses, including a description of the criminal activity reported, the date and general location of the alleged crime, the identity of the investigating officer, and general description of the injuries, must be released upon request unless the release is likely to jeopardize an ongoing investigation or prosecution, or the safety of an individual, or result in the destruction of evidence, or could cause a suspect to flee. Va. Code. Ann. § 2.2-3706.A.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 excluded and subject to discretionary release under the Act. Va. Code. Ann. § 2.2-3706.B.1.  The Act makes no distinction between active and closed investigations. See Fitzgerald v. Loudoun Cty. Sheriff's Office, 289 Va. 499, 506–07, 771 S.E.2d 858, 861 (2015).

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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.2.

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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 (i.e., “body camera footage”)

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 not available. Va. Code Ann. § 2.2-3705.7.7.

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S. Real estate appraisals, negotiations

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 affect 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 exempt. 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

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3. Student records

See Va. Code Ann. § 2.2-3705.4 for definition of “scholastic records” and more generally for student records excluded under the Act.

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4. Other

See Va. Code Ann. § 2.2-3705.4. generally for several exclusions relating to fundraising, letters of recommendation and certain rules specific to named universities, state medical schools and the Virginia College Savings Plan.

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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.

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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. § 32.1-249.10.  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

2. Marriage and divorce

3. Death certificates

4. Infectious disease and health epidemics

Patient level data that is collected for health 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

A. How to start

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 enforce his or her rights under the Act.

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3. Contents of a written request

The Act requires that the requester identify the requested records with reasonable specificity. Va. Code Ann. § 2.2-3704.B.  The Act does not require that fees be mentioned in the request. However, if requesting an estimate for search and copying charges, it is best to put it in writing. If the requester asks for an estimate, one must be provided. Va. Code Ann. § 2.2-3704.F.

If a public body determines in advance that charges for producing the requested records are likely to exceed $200, the public body may, before continuing to process the request, require the requester to agree to payment of a deposit not to exceed the amount of the advance determination. Va. Code Ann. § 2.2-3704.H.

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B. How long to wait

Five Day Initial Response: The custodian must provide an initial response 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. 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.

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: The custodian may obtain an additional seven (7) working days to respond pursuant to § 2.2-3704.B.4 as long as  the custodian provides an initial response within five working days. 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.

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

Not addressed.

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2. Informal telephone inquiry as to status

Not addressed.  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 shall be 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

2. To whom is an appeal directed?

3. Fee issues

4. Contents of appeal letter

5. Waiting for a response

6. Subsequent remedies

D. Court action

1. Who may sue?

Any person, including the Commonwealth's Attorney, who has been denied the rights and privileges conferred by the Act. 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. 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 to 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 without counsel 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 (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 (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 Cir. Ct. 1992).

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a. Denial

b. Fees for records

c. Delays

d. Patterns for future access (declaratory judgment)

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.

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

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 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 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. Id.

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8. Judicial remedies available

The statutory remedies are a writ of mandamus or an injunction. The former compels compliance with the Act and the latter prohibits noncompliance. Va. Code Ann. § 2.2-3713.A.  If the court finds that the violations were willfully and knowingly made the court shall assess a civil penalty. Va. Code Ann. § 2.2-3714.

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9. Litigation expenses

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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10. Fines

No criminal fines are authorized by the Act.  If the Court finds that a violation was willfully and knowingly made, it shall 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 a 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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11. Other penalties

Pleadings in cases to enforce the Act are subject to the same good faith requirements as all pleadings.  Thus, in light of a requester's repeated filings in the courts over the same matters that repeatedly had been rejected (over five times), the court granted sanctions in the amount of $1500, and costs and fees, but refused to prohibit future filings because the next petition might not be frivolous. Davis v. Allen, 44 Va. Cir. 237, 242-43 (Richmond Cir. Ct. 1997).

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12. Settlement, pros and cons

Settlement of disputes under the Act, like settlement of other disputes, is encouraged. Settlement should be without prejudice to future assertions of rights under the Act.

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E. Appealing initial court decisions

1. Appeal routes

A suit brought in General District Court may be appealed to Circuit Court for a de novo hearing. Appeals from Circuit Court are to the Virginia Supreme 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 judgment. Va. Code Ann. § 16.1-106. Notice of appeal to the Supreme Court from Circuit Court must be filed within 30 days of final judgment. Va. Supreme Court Rule 5:17.

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3. Contact of interested amici

The Virginia Press Association, 11529 Nuckols Road, Glen Allen, Virginia 23059, 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 Virginia’s highest court.

Virginia First Amendment Hotline, operated by Christian & Barton, L.L.P., 909 East Main Street, Suite 1200, Richmond, Virginia 23219-3095. Attn: Craig T. Merritt. (804) 697-4128, David B. Lacy, (804) 697-4121.

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F. Addressing government suits against disclosure

This issue has not arisen in Virginia. The organizations above are contact points should such a situation arise.

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Open Meetings

I. Statute - basic application

A. Who may attend?

All meetings shall be open to the public unless the topic of discussion at such meetings falls within one of the enumerated exemptions in § 2.2-3707.01 or § 2.2-3711.A. Va. Code Ann. § 2.2-3707.A.  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; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds." Va. Code 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?

1. Executive branch agencies

The Act applies to all public bodies,  which is defined broadly to include constitutional officers and any authority, board, bureau, commission, district or agency of the Commonwealth. Va. Code Ann. § 3701 (definition of “public body”).

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a. What officials are covered?

b. Are certain executive functions covered?

c. Are only certain agencies subject to the act?

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 courts is governed by other Virginia statutes and case law. Court proceedings are presumed open under 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.  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.

Access to records maintained by clerks of courts of record and clerks of courts not of record are governed by Va. Code Ann. §§ 17.1-208 and 16.1-69.54:1, respectively. See Va. Code Ann. § 2.2-3703.A.5.

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4. Nongovernmental bodies receiving public funds or benefits

Organizations, corporations and agencies that are not supported wholly or principally by public funds are exempted from 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

These bodies are not statutorily exempt from the Act.

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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 telephonic or video equipment pursuant to § 2.2-3708 or 2.2-3708.1, 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

As many as three members or a quorum, if less 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); but see Little v. Virginia Retirement Sys., 28 Va. Cir. 411, 433 (Va. Cir. Ct. 1992) ("Unlike a meeting between two separate and distinct entities, with separate and distinct areas of responsibility, a meeting involving two inextricably linked entities cannot be said to involve the business of only one of those entities.").

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 are carved out of 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 (Roanoke Cir. Ct. 1985).

Non-Public Business: A meeting of Board of Supervisors to discuss 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 (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

“No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2–3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.” Va. Code Ann. § 2.2-3707.B.  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.  “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.  Except in emergencies, a quorum of the public body’s members must be physically assembled at a single location.  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.

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b. E-mail

“No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2–3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.” Va. Code Ann. § 2.2-3707.B.  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.  “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.  Except in emergencies, a quorum of the public body’s members must be physically assembled at a single location.  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.   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

“No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2–3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.” Va. Code Ann. § 2.2-3707.B.  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.  “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.  Except in emergencies, a quorum of the public body’s members must be physically assembled at a single location.  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.

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d. Instant messaging

“No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2–3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.” Va. Code Ann. § 2.2-3707.B.  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.  “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.  Except in emergencies, a quorum of the public body’s members must be physically assembled at a single location.  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.

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e. Social media and online discussion boards

“No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2–3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.” Va. Code Ann. § 2.2-3707.B.  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.  “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.  Except in emergencies, a quorum of the public body’s members must be physically assembled at a single location.  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.

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E. Categories of meetings subject to the law

1. Regular meetings

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 or emergency 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. § 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 (if available) 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, (iii) study committees or commissions appointed by the Governor, and (iv) study commissions, 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.

All boards, commissions, councils, and other public bodies created in the executive branch of state government and subject to the provisions of the Act shall post minutes of their meetings on such body’s official public website and on an electronic calendar maintained by the commonwealth. Draft minutes of meetings shall be posted as soon as possible but no later than ten working days after the conclusion of the meeting. Final approved meeting minutes shall be posted within three working days of final approval of the minutes. Va. Code Ann. § 2.2-3707.1.

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 session, 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, 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

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 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 circumstances, of special or emergency meetings must be given contemporaneously with the notice provided to members of the public body. Va. Code Ann. § 2.2-3707.D.

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c. Minutes

The nature of the emergency must be stated in the minutes of the emergency meeting. Va. Code Ann. § 2.2-3708.2.  Minutes, including draft minutes and audio-visual records, are public records subject to disclosure under the Act. Va. Code Ann. § 2.2-3707.H.

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3. Closed meetings or executive sessions

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 proper procedures in Va. Code Ann. § 2.2-3712.A., to convene in a closed or executive session for the purpose of discussing any one of the subject matters enumerated in Va. Code Ann. § 2.2-3711.

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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.

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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 There are no tape recording requirements in the Act. purpose of the meeting as authorized by § 2.2-3711 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.

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f. Tape recording requirements

There are no tape recording requirements in the Act.

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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 such 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, 634 S.E.2d 334 (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 discussing the performance or specific individuals, discipline and job performance. Also provides that a teacher, on written request, may be present in closed session 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.

c. Real Property: Discussion of the acquisition of real property for public purpose, or of the disposition of publicly held property, where public disclosure 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. Consultation and Legal Advice: With legal counsel, staff members or consultants pertaining to actual or probable litigation or other specific legal matters requiring the provision of legal advice by counsel. 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. Consultation and Legal Advice: 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.

i. Discussion of Gifts, Fundraising, and Bequests to State Institutions of Higher Education: Discussion by boards of visitors 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, 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 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 a detrimental 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.   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: Discussion of individual dearth cases by covered 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 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 local jurisdiction, as those terms are defined in § 56-557, 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 or the Innovation and Entrepreneurship Investment Authority or a grant allocation committee of grant 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 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 excluded pursuant to § 2.2-3705.6. 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 § 24.2-625.1. 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 subject to exclusion under Va. Code Ann. § 2.2-3706.B.1.. Va. Code Ann. § 2.2-3711.A.35..

jj. Brown v. Board of Education Scholarship Program Awards Committee: Discussion or consideration by the committee to deliberate 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 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 Advisory Councils: 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 exclusion under the Act pursuant to 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 investigations and subject to exclusion under Va. Code Ann. § 2.2-3705.3.1.  Va. Code Ann. § 2.2-3711.A.46.

uu. Virginia Research Investment Fund Applications: Discussion or consideration of grant or loan 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. Sexual Assault Review Team Discussions:  Discussion of individual cases bisexual assault tem or child abuse and neglect team established by Va. Code Ann. §§ 15.2-1627.4 or 1627.5.  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.

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B. Any other statutory requirements for closed or open meetings

1. Discussion Must be Limited: The discussion in the 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

There are none.

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Administrative adjudications are not governed generally by the Act; rather, administrative case decisions are governed by the Administrative Process Act, Va. Code Ann. § 2.2-4000 et seq.  Case decision procedures are found at Va. Code Ann. § 2.2-4018 et seq.

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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

Prospective business or industry or expansion of existing business or industry is addressed in  Va. Code Ann. § 2.2-3711.A.5.

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D. Federal programs

No specific provision relates to federal programs.

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E. Financial data of public bodies

Investment of public funds involving competition is addressed in Va. Code Ann. § 2.2-3711.A.6.   Investment funds managed by or on behalf of specific agencies concerning retirement plans 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 records exclusions address this topic.  Closed meeting rules address discussions of private business information by 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 Research Investment Committee, Va. Code Ann. § 2.2-3711.A.47.

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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 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.

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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

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

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.

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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

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 specific individuals are exempt from required disclosure. Va. Code Ann. § 2.2-3711.A.1.

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3. Dismissal, considering dismissal of public employees

Discussions concerning specific individuals are exempt from required disclosure. Va. Code Ann. § 2.2-3711.A.1.

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O. Real estate negotiations

Discussion of the acquisition of real property for public purpose, or of the disposition of publicly held property may be closed, where open discussion would adversely affect 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

Discussion of 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

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

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IV. Procedure for asserting right of access

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. 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. Note that the court will not award injunctive relief where the violations are not willful and substantial. Nageotte v. King George County, 223 Va. 259, 269-70 (1982).

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5. Other

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-95] is available on the Supreme Court of Virginia’s website. See http://www.courts.state.va.us/forms/district/dc495.pdf.

There are no administrative appeals provided for under the Act.

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1. Where to ask for ruling

a. Administrative forum

There is no administrative forum in Virginia to seek a remedy for violation of the Act.

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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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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

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 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 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. Id.

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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-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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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

1. Who may sue?

Any citizen of the Commonwealth, including the Commonwealth's Attorney, who has been denied the rights and privileges under the Act. 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?

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).

Imposition of Penalties: The Court will determine whether there has been a willful violation of the Act. 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).

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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

Not likely.  See Nageotte v. King George County, 223 Va. 259, 267 n. 2, 288 S.E.2d 423, 427 n.2 (1982).

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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 and where there are no special circumstances making the award unjust. Va. Code Ann. § 2.2-3713.D.

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10. Fines

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 $250.00 and not more than $1,000.00. The penalty for the second violation shall not be less than $1,000.00 nor more than $2,500.00. Va. Code Ann. § 2.2-3714.

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11. Other penalties

None.

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D. Appealing initial court decisions

1. Appeal routes

If the suit was first brought in a general district court it may be appealed to a circuit court for a de novo hearing. Appeals from the circuit courts are to the Supreme Court of Virginia.

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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 judgment. Va. Code Ann. § 16.1-106. A notice of appeal to the Supreme Court from a circuit court must be filed within thirty days of final judgment. See Va. Supreme Court Rule 5:9.

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3. Contact of interested amici

The Virginia Press Association, 11529 Nuckols Road, Glen Allen, Virginia 23059, 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 Virginia’s highest court.

Virginia First Amendment Hotline, operated by Christian & Barton, L.L.P., 909 East Main Street, Suite 1200, Richmond, Virginia 23219-3095. Attn: Craig T. Merritt. (804) 697-4128, David B. Lacy, (804) 697-4121.

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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?

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

C. Can a public body limit comment?

D. How can a participant assert rights to comment?

E. Are there sanctions for unapproved comment?

Appendix