FOIA council delays action on bill that would require agendas be posted and bar late final votes

The Freedom of Information Advisory Council on July 7 agreed to place a draft related to Senate Bill 876 on its agenda for final action at the council’s next meeting after extended discussion about whether the bill’s requirement that public bodies post proposed agendas and restrict final action on late-added items should apply to all public bodies.

The measure discussed would require public bodies to post any proposed agenda on an official government website, if any, prior to the meeting and would bar ‘‘final action’’ on items added after a meeting begins except when the item is time‑sensitive or the subject of a properly identified closed session. The draft defines ‘‘final action’’ to include a vote, adjudication or other formal action that completes consideration of an item, and to exclude referrals, directions to staff and ceremonial proclamations.

The full council heard a report from the meeting subcommittee, chaired by Maria Everett, that the subcommittee voted 4–1 to recommend the draft. Senator Evan explained the problem the draft aims to solve: occasions when public bodies take up and act on items not included on a posted agenda, leaving interested parties without prior notice. Subcommittee members said their intent was to preserve flexibility for public bodies to add time‑sensitive items while improving public notice.

Council members pressed staff and subcommittee members on the bill’s scope. Several members, including Ken Reed, raised concerns that applying the requirement to ‘‘all public bodies’’ could burden advisory committees and volunteer boards that lack websites or the staff capacity to post materials online. Lola Perkins and others said the subcommittee did not hear testimony calling for a strict timing deadline; the subcommittee endorsed a bright line that final action must not occur after the meeting begins but acknowledged that agendas sometimes change at the last minute.

Members also asked about timing: whether ‘‘prior to the meeting’’ meant minutes, hours or days. Staff explained existing law already requires that copies of proposed agendas be made available for public inspection at the same time members receive them; the draft would add a posting requirement on an official website, if one exists, but would not prescribe a precise number of hours before a meeting.

Public commenter Jason Morgan urged the council to consider enforcement language that would allow a public body that took an improper final action the opportunity to rescind it at its next regularly scheduled meeting or at a special meeting to consider rescission. Morgan offered to submit proposed statutory language for the council to consider.

After discussion the council voted to put the subcommittee’s recommended draft on the FOIA Council agenda for final action at the next meeting. The motion carried; Ken Reed registered the sole dissent. The council did not amend the draft at the July 7 meeting and deferred final action to allow additional review and for organizations such as the Virginia Municipal League and the Virginia Association of Counties to consider the language and provide feedback.

Next steps: the item will appear on the full council agenda at its next scheduled meeting after Labor Day for possible final action; staff said it will circulate the draft in editable form to council members before that meeting.