Meetings Under the Virginia Freedom of Information Act

The Virginia Freedom of Information Act (“VFOIA”)

If you work in local government within the Commonwealth, you are probably aware of VFOIA. If not, it is prudent that you familiarize yourself with this legislation, as it instructs how public bodies should operate in various respects. VFOIA, originally enacted in 1968, seeks to promote governmental transparency. The General Assembly clearly expressed this sentiment, stating that VFOIA “ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.”[1] Simply put, Virginia favors and desires open government. Although VFOIA sets forth various provisions to effectuate its purpose, the scope of this article is limited to what constitutes an open meeting under VFOIA.

Open Meetings Under Gloss v. Wheeler, 887 S.E.2d 11 (Va. 2023) 

One way that VFOIA instructs a public body’s operation is by mandating that “[a]ll meetings . . . shall be open[.]”[2] This seemingly simple pronouncement is quite crucial. Because, if a gathering is a “meeting” under VFOIA, then public bodies must abide by certain statutory obligations. For example, public meetings must be properly noticed, have an agenda, and have written minutes of the meeting taken. Thus, every public body subject to VFOIA should ask itself: what constitutes a meeting?

The statute sets a baseline definition. Currently, according to the statute, a meeting “means the meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2 or 2.2-3708.3, 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, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body.”[3]

This broad definition is then qualified by two exceptions: “Neither the gathering of employees of a public body nor the gathering or attendance of two or more members of a public body (a) at any place or function where no part of the purpose of such gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body, or (b) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting, shall be deemed a “meeting” subject to the provisions of this chapter.” Va. Code § 2.2-3701; See also VFOIA Council Advisory Op. AO-02-06 (March 15, 2006) (discussing that a meeting must meet two elements: “(1) the presence of three or more members, or a quorum, of a public body sitting as a body or assemblage, and (2) the purpose of discussing or transacting the public business of that public body by those members.”). The Supreme Court of Virginia, last May, further developed the definition of a “meeting” by fleshing out the contours of an exception.

Gloss’s Impact

The events in Gloss involved the protests and civil unrest that occurred one night in May 2020 in Prince William County, as a result of George Floyd’s death. The day following the protests and civil unrest within the county, the Police Chief and the Chair of the police department’s Citizens’ Advisory Board quickly orchestrated a gathering to discuss the previous night’s events. Invitations to the meeting were spread by word of mouth; Five members of the Prince William County Board of Supervisors (the “Board”) attended, and three members did not receive invitations. The meeting was conducted without complying with VFOIA’s open meeting requirements, such as making a formal notice. Because at least three members of the Board (a public body) attended the meeting, with some taking part in discussions, where part of its purpose was a discussion of the Board’s public business, the meeting was subject to VFOIA’s open meeting requirements.

Gloss, in defining “public business,” set forth important considerations.

1. A topic is the “business” of a public body if it relates to a subject falling within the public body’s purview.
2. A topic constituting “public business” under VFOIA “means business that is on a public body’s agenda or is likely to come before the public body in the foreseeable future.”[4]
3. It does not matter who raises the topic – it could be raised by a member of the public body, another government employee, or a community member.

Thus, depending on what is discussed, a gathering could transform into a meeting subject to VFOIA’s requirements. The dissent highlighted this fact, warning that the broadly defined “public business” would transform informational gatherings between citizens and government officials into VFOIA meetings. As a result of this decision, some public bodies altered their operations. For example, the Hampton City Council contemplated establishing a rotating calendar to ensure that no more than two members attend a local meeting.[5]

Legislative Update to VFOIA since Gloss

Notably, a VFOIA bill recently went through the General Assembly to further clarify the definition of “meeting” and “public business”.[6]  Seemingly addressing some concerns raised by the dissent, the bill adds language to the definition of “meeting” by providing certain exemptions. It also expressly defines “public business” and declares that the new provisions are declarative of existing law. The Governor signed the bill on April 8, 2024, with it becoming effective on July 1, 2024. Public bodies need to ensure they are aware of these legislative updates as they seek to remain in compliance with their various obligations.

Diamond Royster is a Pender & Coward attorney focusing her practice on civil litigation, local government, eminent domain/right of way and waterfront law matters.

[1] Va. Code § 2.2-3700.

[2] Va. Code § 2.2-3707(A)

[3] Va. Code § 2.2-3701

[4] Gloss, 887 S.E.2d at 28.

[5] Local governments grapple with public meetings law after Virginia Supreme Court ruling – The Virginian-Pilot (pilotonline.com)

[6] LIS > Bill Tracking > SB36 > 2024 session (virginia.gov)