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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA


AO-3-01

January 16, 2001

Ms. Sandy Hart-Davenport
Damascus, 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 letter of December 11, 2000.

Dear Ms. Hart-Davenport:

You have asked a series of questions concerning meetings of the Damascus Planning Commission ("the Commission") and the application of the Virginia Freedom of Information Act (FOIA). You indicate that you requested, in writing, to be notified of all meetings of the Commission. On Friday, December 8, the chairman of the Commission called you at 7:00 p.m. to notify you of a meeting scheduled for Monday, December 11 at 7:00 p.m. Notice for this same meeting had also been published in the paper and posted on the front door of the town hall. The chairman told you that he received an agenda for the meeting late in the day on December 7, and that a copy had been delivered to each Commission member during the day on December 8. Furthermore, he informed you that an agenda packet for the meeting was available to view at the Town Hall, but you note that as of 5:00 p.m. Friday, the packet was not there.

1. Your first question is whether the notice given for the meeting was reasonable under the circumstances. To determine whether notice was appropriate, one must first determine if the meeting was a regular, special, or emergency meeting. For regular meetings, subsection C of 2.1-343 of the Code of Virginia requires that notice be posted at least three working days in advance of the meeting. For special or emergency meetings, subsection D of 2.1-343 only requires that notice be reasonable under the circumstances. Your written request for notice of all Commission meetings, which you forwarded with your questions to this office, indicates that the regular meetings of the Commission are held on the fourth Monday of the month. Based on this information alone, it appears that the meeting scheduled for December 11 was not a regular meeting. Therefore, the meeting would be a special or emergency meeting, requiring notice to be reasonable under the circumstances. Whether notice was reasonable in this instance is a question for the court, and not for this office.

2. Your second question asks if notice was given to you contemporaneously with notice given to the members of the public body. You do not indicate specifically when the members were notified, other than to say that they received a copy of the agenda earlier during the day that you were notified, or when the meeting notice was posted at the town hall.

Subsection D of 2.1-343 requires that notice for special meetings be given to the public contemporaneously with the notice provided members of the public body. FOIA contemplates two different ways that notice may be given to the public. The general notice provisions at subsection C of 2.1-343 requires that notice be posted at the office of the clerk of the public body and at a location where notices are regularly posted. Additionally, subsection E of 2.1-343 allows any person to file a written request to be personally notified of all meetings of a public body. Section 2.1-340.1 dictates that the provisions of FOIA should 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. Reading the various notice provisions together, in light of this policy of openness, it would appear that when a public body calls a special or emergency meeting, it must not only post notice at the two designated locations when it notifies the members, but must also give notice to those that have requested it contemporaneously with the notice given to the members.

3. Your third question asks whether members of the Commission were properly notified of the meeting. You point out 15.2-2214, outside of the scope of FOIA and relating specifically to meetings of local planning commissions, which requires the secretary of a given commission to mail all members written notice of a special meeting at least five days in advance. This same section waives the five-day notice if the time and place of a special meeting were fixed at a regular meeting or if the members file a written waiver of notice.

Based on the facts you have presented, I am unable to determine if notice was properly given to the members of the Commission. You indicate only that the members received a copy of the agenda on December 8, but not whether this also served as their notice for the special meeting. Furthermore, I do not know whether the time and place for the special meeting were set at a previous regular meeting, or if the members had waived the notice requirement of 15.2-2214.

4. Your fourth question asks if the Commission violated your written request to be notified of all its meetings. Subsection E of 2.1-343 allows a person to annually file a written request for notification. Upon receipt of such request, a public body must give notice of all meetings directly to the requestor and may do so electronically, so long as the requestor does not object. The provision does not expressly require that individual notice be in writing or be given via the same means as is given to the members of the body. However, it could be inferred that notice of regular meetings should be given to requesting individuals in writing, following the spirit of subsection C of 2.1-343, which requires written notice to be posted. When time constraints make written notice impossible or impractical for special or emergency meetings, it can be inferred that the requestor should be notified via the same means as members of the public body.

Whether the Commission properly honored your request to be notified hinges on whether you were given notice contemporaneously with the members of the public body. As stated in the response to question two, the facts you present indicate neither when notice was given to the members nor when posted at the designated location. Therefore, I cannot make a judgement as to whether your request to be notified was honored.

5. Your fifth question asks whether there was a violation concerning access to the agenda packets. Subsection F of 2.1-343 requires that [a]t least one copy of all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body. You indicate that the agenda was made available to the members of the public body on December 8. Therefore, a copy of the agenda should have also been available for public inspection that day. The copy of the agenda that your forwarded with your questions indicates that other items, such as applications and site plans to be considered at the meeting, would likely be available by 3:00 p.m. the day of the meeting. So long as the members did not have access to this information prior to 3:00 p.m., there is no requirement that materials be available for public inspection for a certain amount of time prior to a meeting.

6. Your sixth question asks who is responsible for providing the members of a public body with a copy of FOIA, and whether it is a violation to fail to provide it. You indicate that you know that at least one member of the Commission was not provided with a copy. Section 2.1-341.1 requires all members of a public body to be provided with a copy of FOIA within two weeks of election, reelection, appointment or reappointment. The provision places this responsibility on the public body's administrator or legal counsel. Technically, failing to provide a copy of FOIA to the members would be a violation, because subsection E of  2.1-346 states that failure to follow the procedures is a violation of FOIA.

7. Your seventh question asks if a violation has occurred, who is responsible -- the Commission as a group, the chairman or secretary of the Commission, or the town attorney or administrator. In enforcement proceedings, a petition for injunction or mandamus under 2.1-346 would be brought against the public body as a whole. However, if during the course of an enforcement action for injunction or mandamus the court finds that a particular member willfully and knowingly violated FOIA, the court may impose civil penalties against such member in his individual capacity pursuant to 2.1-346.1.

8. Your final question asks about how to proceed if a violation has occurred. FOIA provides enforcement mechanisms in 2.1-346, and allows any person denied a right or privilege granted under FOIA to file a petition for mandamus or injunction against a public body. A single denial of rights under FOIA is sufficient to invoke a cause of action.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

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