Can a Virginia school board adopt a policy that blocks board members from getting records the public could get under VFOIA?

Plain-English summary

Delegate Clinton Jenkins asked whether a Suffolk City School Board policy that required the full board to vote before staff could fulfill an "information request" from a single board member, if the work would take more than 60 minutes, ran afoul of the Virginia Freedom of Information Act (VFOIA). The AG said yes, at least in some circumstances.

The reasoning is straightforward. VFOIA establishes a strong presumption that public records are open and that public bodies must respond promptly. Section 22.1-78 lets school boards adopt bylaws for their own operations, but those bylaws cannot conflict with state statutes (the Virginia Supreme Court reaffirmed that limit in Sosebee v. Franklin County School Board, 843 S.E.2d 367 (2020)). A policy that delays or denies access to records that would otherwise be releasable under VFOIA is exactly that kind of conflict. The board cannot impose a procedural gate (full-board endorsement, time-based threshold) that VFOIA itself does not impose.

The opinion adds a careful qualifier: the school board policy applied to "information" requests, which is broader than "records" under VFOIA. VFOIA does not require a public body to create new records that do not already exist. So the policy can validly apply to requests that go beyond existing records, what it cannot do is reach VFOIA-covered records.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

VFOIA's foundational rule, in § 2.2-3700(B), is that the statute "shall be liberally construed" to promote awareness of government activities. Section 2.2-3704(A) then provides: "Except as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth." Section 2.2-3704(B) sets time limits: respond within five working days, with one of five specified responses.

A school board's bylaw authority comes from Va. Const. art. VIII, § 7 (giving school boards supervision of schools) and § 22.1-78 (allowing bylaws and regulations for board governance and school management). Section 22.1-78 expressly limits that authority: bylaws and regulations cannot be "inconsistent with state statutes." Sosebee, decided just a few months before this opinion, reaffirmed that constraint.

The Suffolk policy at issue read in relevant part: "If considerable work or time is required to generate information requested from the administration by a Board Member, then the full Board must endorse the request" (defined as research requiring more than 60 minutes). On its face the policy gated all such requests, including ones that would otherwise be releasable under VFOIA.

The AG noted that whether a particular request falls within VFOIA is fact-dependent. VFOIA covers existing public records, not information that would require creating new records (see § 2.2-3704(D)). Where a board member's request falls within VFOIA, the school's response must be governed by VFOIA, not the board's internal threshold.

The opinion does not invalidate the entire policy. It says the policy "cannot apply to delay or deny access to a school board member to records that may be obtained under VFOIA." For non-VFOIA requests (e.g., "give me a memo summarizing X" where no such memo exists), the board's internal-governance policy can still operate.

Common questions

Q: I'm a Virginia school board member, can I just file a VFOIA request like any citizen?
A: Per this 2020 opinion, yes. Where the request is for existing public records that are not exempt, VFOIA's time limits and access rules apply, and an internal board policy cannot block your request just because it might take staff more than an hour to assemble the records.

Q: My school board adopted a "full board approval" rule for big requests. Is that always invalid?
A: No, the opinion is narrower. Such a rule is unenforceable to the extent it would deny or delay VFOIA-covered requests for existing records. For broader "information" requests (e.g., asking staff to write a new analysis), the rule may operate, because VFOIA does not require creation of new records.

Q: What's the difference between "records" and "information"?
A: VFOIA covers "public records," which are existing documents and other tangible records. "Information" in the policy is broader, it can include new analyses, memos, summaries, or oral reports that the administration would have to create. VFOIA does not reach those under § 2.2-3704(D).

Q: My school district keeps stalling, telling me the full board has to vote first. What's my recourse?
A: Cite this opinion, § 2.2-3704, and § 22.1-78. If staff still refuses, you can file a VFOIA enforcement action under § 2.2-3713 in general district or circuit court, or seek guidance from the Virginia FOIA Advisory Council.

Q: Can the school board just amend the policy to require fewer hoops?
A: Yes, and it should. The cleanest fix is to amend the policy so it applies only to non-VFOIA "information" tasks that would require creation of new content, and clearly preserves a board member's (and the public's) VFOIA rights.

Q: Does this opinion apply to all school boards, or just Suffolk?
A: The analysis is general. Any Virginia school board (or other local public body) policy that gates VFOIA-covered records through internal voting or work-effort thresholds would face the same statutory conflict.

Citations and references

Statutes:
- Va. Code § 2.2-3700 (VFOIA policy)
- Va. Code § 2.2-3704 (Right to inspect records; time limits)
- Va. Code § 22.1-78 (School board bylaws)
- Va. Code § 22.1-79 (School board duties)

Cases:
- Sosebee v. Franklin County School Board, 843 S.E.2d 367 (Va. 2020) (Virginia Supreme Court; school board cannot adopt regulations inconsistent with statutes)

Constitutional provision:
- Va. Const. art. VIII, § 7 (School supervision)

Local policy referenced:
- Suffolk City School Board Policy Manual § 2-2.6:1(A)(6)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-036-Jenkins-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 18, 2020

The Honorable Clinton Jenkins
Member, Virginia House of Delegates
Post Office Box 4305
Suffolk, Virginia 23439

Dear Delegate Jenkins:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a policy adopted by the Suffolk City School Board conflicts with the Virginia Freedom of Information Act (VFOIA).

Background

You explain that the Suffolk City School Board has adopted a policy that applies when a school board member submits a request for information to the school administration. The policy provides, in part, that "[i]f considerable work or time is required to generate information requested from the administration by a Board Member, then the full Board must endorse the request."[1] You explain further that the policy states that "[c]onsiderable work or time means research that requires more than 60 minutes
to generate."[2]

You relate that the policy is understood to prohibit the school district from releasing any information to a school board member unless the full Board has voted on the request, even if the information would otherwise be releasable under VFOIA.

Applicable Law and Discussion

When considering citizen access to government records we must consider the level of openness that the General Assembly has established for Virginia's government operations. The tenets of open government and transparency are the core principles of VFOIA. The General Assembly has expressly stated that VFOIA "shall 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."[3] Section 2.2-3704(A) of VFOIA states that "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth."[4]

School boards in Virginia are vested with "[t]he supervision of schools in [each] school division."[5] Further, the General Assembly has provided that each school board may "adopt bylaws and regulations ... for its own government, for the management of its official business and for the
supervision of schools."[6] A school board may not, however, adopt regulations or policies that are
"inconsistent with state statutes."[7]

The school board policy in question may conflict with VFOIA if a school board member makes a valid request that is governed by VFOIA, because the school board policy prohibits the school division from providing a school board member with records unless the various conditions of the policy are satisfied.[8] Accordingly, in my opinion, the policy cannot apply to delay or deny access to a school board member to records that may be obtained under VFOIA.

I note, however, that whether any particular request falls within VFOIA is a fact dependent question, turning on the specific request. VFOIA governs citizens' access to information contained in existing public records, but it does not require a public body to create records that do not exist.[9] The school board policy applies to requests for "information," which is broader than "records."

Conclusion

It is my opinion that, in some instances, a local school board policy restricting the release of information may conflict with VFOIA. VFOIA requires public bodies to operate in an open and accessible manner. Policies adopted by a school board should not impede access to public records by citizens of the Commonwealth.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. See Suffolk City School Board Policy Manual § 2-2.6:1(A)(6), available at https://www.spsk12.net/our-division/policies_and_regulations.

2. Id.

3. Va. Code Ann. § 2.2-3700(B) (LexisNexis, current through the 2020 Regular Session, and 2020 Special Session I, c. 1 of the General Assembly).

4. Va. Code Ann. § 2.2-3704(A) (LexisNexis, current through the 2020 Regular Session, and 2020 Special Session I, c. 1 of the General Assembly).

5. Va. Const. art. VIII, § 7; see also generally Va. Code Ann. § 22.1-79 (LexisNexis, current through the 2020 Regular Session, and 2020 Special Session I, c. 1 of the General Assembly) (providing that "[a] school board shall ... [s]ecure, by visitation or otherwise, as full information as possible about the conduct of the public schools in the school division and take care that they are conducted according to law and with the utmost efficiency").

6. Va. Code Ann. § 22.1-78 (LexisNexis, current through the 2020 Regular Session, and 2020 Special Session I, c. 1 of the General Assembly).

7. Id.; see also Sosebee v. Franklin Cty. Sch. Bd., 843 S.E.2d 367, 370-71 (2020).

8. See, e.g., Va. Code Ann. § 2.2-3700(B) (providing that "[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked.").

9. Va. Code Ann. § 2.2-3704(D) (stating that "[s]ubject to the provisions of subsection G, no public body shall be required to create a new record if the record does not already exist").