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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-1-01
January
3, 2001
Ms. Bridgette Blair
The Winchester Star
Winchester, VA
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your telephone
conversation of December 4, 2000.
Dear Ms. Blair:
You have asked whether
the use of a proposed email network, consisting of the members
of city council, the city manager, and the city attorney,
among others, would constitute a meeting under the Virginia
Freedom of Information Act (FOIA) and should be prohibited
unless open to the public. The public body refused your request
to be included in the network, and told you that public access
was limited to requests for specific emails.
You indicate that
this network would be similar to a "mailing list server" or
"discussion group" ("server"). On such an electronic communications
system, each message posted on the server would be addressed
to a server address, instead of individual user's addresses.
The message is then automatically broadcast to everyone on
the server's list as an email message. In order to see any
of the messages posted, one must be on the server list.1
Responses to previously sent messages are sent out the same
way, so that all server participants automatically see them.
Thus, every participant would see and be able to participate
in electronic discussions taking place via email. This differs
from ordinary use of email, where the sender must decide
specifically to whom to send the message, and recipients decide
to whom to respond -- to the initiator of the message only,
or to all or some of the other recipients of the message.
FOIA defines a meeting
at § 2.1-341 of the Code of Virginia. It reads:
"Meeting"
or "meetings" means the meetings including work sessions,
when sitting physically, or through telephonic or video
equipment pursuant to § 2.1-343.1, 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, wherever held, with or without minutes being
taken, whether or not votes are cast, of any public body.
Section 2.1-343.1
sets forth procedural requirements that would allow a state
body to meet electronically, but the same section prohibits
local bodies, such as the city council, from meeting by electronic
means.
In light of today's
technological advances, the discrepancies between a face-to-face
simultaneous discussion and an electronic exchange are fast
diminishing, making it difficult to draw the line between
what type of electronic exchange constitutes correspondence,
and what constitutes an electronic discussion. A recent opinion
of the Attorney General found that transmissions through an
email system from one member of a public body to three or
more members of the same body was a form of written communication,
and thus did not constitute a meeting.2 This opinion
focused on the traditional use of email -- when a sender
chooses the particular recipients of a message. In such a
situation, email is equated with sending a paper memo or
letter to multiple recipients. The situation involving the
use of an email server presents additional issues and concerns,
and leads one to come to a different conclusion as to the
nature of the communication.
As noted above,
if a user chooses to send a message via the server, every
participant would automatically see the message. Likewise,
each participant would have the opportunity to respond and
would see all of the other responses to the original message.
Any participant could then respond to a response, and in essence,
a discussion results. In this light, this use of electronic
communications in a server environment appears to be more
akin to a meeting than to mere correspondence. The network
would allow an electronic conversation to ensue, in which
ideas concerning public business could readily be exchanged
among all members of a public body. Members would utilize
the system with the intent of broadcasting a message and receiving
all subsequent responses and discussion of the original message.
While this conversation might not ensue as instantaneously
as a face-to-face conversation, the end result would be the
same exchange and discussion of ideas outside of the public's
view.
FOIA dictates that
its provisions be construed liberally to promote an increased
awareness by all persons of governmental activities and afford
every opportunity to citizens to witness the operations of
government.3 Subsection B of § 2.1-343 prohibits
any meetings through telephonic, video or electronic means
where the members are not physically assembled. In light of
FOIA's policy of openness, the server seems more like an electronic
meeting prohibited by § 2.1-343 than traditional correspondence.
A message broadcast on the server could easily spark a discussion
among the members of the public body, via email, concerning
a matter of public business. Conducting business on the server
would not give citizens the opportunity to witness the operation
of government. Furthermore, only allowing citizens to request
copies of particular emails from the server after the fact
removes the citizen from witnessing first-hand the conduct
of government as would take place at a physically-assembled
meeting. As such, FOIA prohibits public bodies from utilizing
such electronic means of communication among the various members
of the body. Allowing citizens to join the server list so
that they might also receive all posted emails would not
remedy the situation, since FOIA prohibits any electronic
meeting of a local public body, regardless of whether the
public is allowed to participate.
Individual members
of a public body could still utilize traditional email to
send correspondence to one or several members of a public
body. When such email and all subsequent responses are automatically
viewed by all members of the public body, however, the nature
of the electronic transmissions crosses the line between correspondence
and discussion. Once a discussion ensues, it is governed by
the meeting provisions of FOIA, which plainly prohibit any
meetings where the members of a local public body are not
physically assembled.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 PC
Webopedia Definition and Links (last modified March 6, 1997)
(http://www.webopedia.internet.com/TERM/L/Listserv.html).
2 1999
Op. Atty. Gen. Va. 12.
3 Va.
Code Ann. § 2.1-340.1 (Michie 2000).
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