VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-01-06

February 23, 2006

Michael Covel
Vienna , Virginia

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 electronic mail of December 30, 2005, January 5, 2006, and January 11, 2006, and the attachments thereto.

Dear Mr. Covel:

You have asked whether a public body violated the Virginia Freedom of Information Act (FOIA) by failing to include in meeting minutes any mention of three topics that were later reported in a local newspaper as having been discussed and decided at the meeting. Specifically, you indicated that it was reported that the Vienna Town Council (the Council) held a work session on December 12, 2005, during which the Council considered (1) prohibiting the public from video taping Council meetings, (2) having a police presence at potentially contentious public meetings, and (3) taking action against the Chairman of the Windover Heights Board of Review.¹ You further indicate that according to the newspaper reports, upon the advice of the Town Attorney, the Council decided not to prohibit videotaping as such a prohibition would be in violation of FOIA; that the Council decided in favor of having a police presence at potentially contentious public meetings; and that the Council decided not to take any action against the Chairman. However, you stated that none of these topics is reflected in the minutes of the meeting in question. You stated that you believe the failure to include any mention of these decisions in the meeting minutes violates subdivision I (iii) of § 2.2-3707, which requires that meeting minutes include a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.

As previously opined by this office,² prior to July 1, 2004, FOIA contained no requirements as to the content of meeting minutes. As a result, a requester had to be content with minutes that may or may not adequately reflect the discussions and actions of a public body. Essentially, the adequacy of minutes was affected by the minute-taking standards adopted by various public bodies. Subsection I of § 2.2-3707, however, was amended by the 2004 Session of the General Assembly to require that [m]inutes shall include, but are not limited to, (i) the date, time and location of the meeting, (ii) the members of the public body recorded as present and absent, and (iii) a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.³ It appears that no opinions regarding this subsection have yet been issued by any Virginia court or by the Office of the Attorney General.

However, two prior opinions of the Attorney General have addressed the requirements for the content of meeting minutes in interpreting a different section of law.⁴ The Attorney General indicated in those opinions that minutes should contain all questions of a public nature which have been discussed and considered by the [public body], even though a determination of such questions may have been deferred instead of being voted upon. Recognizing that the public body has discretion as to what shall be included in its minutes, the Attorney General further opined that such discretion should not be exercised in such manner as to exclude therefrom any question of official nature that has been considered by the [public body].⁵ While these opinions concerned a different section of law, and therefore are not controlling, they coincide well with the intent of FOIA that the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.

As previously quoted, FOIA requires a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken. However, summary is not defined in FOIA. Turning to common usage in the absence of statutory definition, Merriam-Webster Online defines a summary as an abstract, abridgment, or compendium especially of a preceding discourse.⁶ The American Heritage Dictionary defines a summary as a condensation of the substance of a larger work; abstract; abridgment.⁷ Applying these definitions, it is clear that FOIA does not require a verbatim transcript of every word spoken at a meeting, nor that every detail of a discussion be mentioned in meeting minutes. However, any matter that was proposed, deliberated or decided should be addressed in the meeting minutes in summary form.

Thus we must determine what matters are proposed, deliberated or decided. Again, these terms are not separately defined within FOIA, and so we turn to their common usage. Propose is defined to mean to put forward for consideration, discussion, or adoption; suggest⁸ and to form or put forward a plan or intention.⁹ Among other definitions, deliberate means to consult with another or others as a process in reaching a decision¹⁰and to think about deliberately and often with formal discussion before reaching a decision.¹¹ Decide means to conclude or settle¹² and to arrive at a solution that ends uncertainty or dispute about. ¹³

Taking these terms into the context of the operation of a public body, it appears clear that any matter that is the subject of a motion or vote is a matter that is proposed, deliberated or decided by the public body (regardless of the outcome of the motion or vote) and therefore is required to be contained in the meeting minutes. Public bodies take action by motion and by vote; any matter moved before the public body is a matter that has been proposed before that body, even if the motion fails for lack of a second. FOIA explicitly requires that minutes must contain a record of any votes taken.¹⁴ Similarly, if there is an agenda for a meeting, any item on that agenda would be considered one that has been proposed, even if consideration of that item is deferred until a later date. Therefore public bodies should always include in meeting minutes a summary of any matter that appears on the agenda for that meeting, in addition to any matters that are the subject of a motion or vote.

Whether matters that are not agenda items and are not the subject of any motion or vote, should be included in the meeting minutes will depend upon the exact facts of each situation. Some matters may be briefly mentioned as side issues during a meeting, within the context of other issues, with no action being proposed, deliberated or decided by the public body on the side issues. Side issues such as these need not be included in a summary, as a summary is an abstract or abridgment that by definition need not contain every detail of a discussion. Other matters, despite not being on an agenda and not being the subject of a motion or vote, might become the subject of substantial discussion and debate in their own right, and may have important consequences and effects. A summary of the discussion about such matters, which have been deliberated by the public body, should be included in the meeting minutes, even if no further action is proposed or decided. Generally, in regard to these matters which are not agenda items and are not the subject of any motion or vote, this office is in agreement with the prior opinions of the Attorney General, that the public body has discretion to determine which of these matters merit inclusion in the meeting minutes. Such discretion should not be used to exclude or obfuscate any matters of an official nature that have been considered by the public body.

The facts before us are that news reports have indicated that the Council considered three matters that do not appear in the Council's minutes for that meeting. There is no evidence that any of these matters were on the Council's agenda for that meeting, that any motion was made concerning these matters, or that any vote was taken concerning these matters. The news reports are rather sparse regarding how and in what context these matters arose, what the nature of any discussion or debate was, and other relevant details. These types of facts are necessary to determine whether these matters should have been included in the meeting minutes. For example, one report indicates that while the Council "looked at ways to keep board and commission meetings under control" the members "floated the idea of not allowing videotaping or perhaps having only the town record the meetings."¹⁵ There is not enough factual detail in that report for this office to determine whether the matters at issue were ones that were proposed, deliberated or decided by the Council.

This lack of factual detail is equally relevant to the other matters you asked about, concerning having a police presence at meetings and the possible discipline of the Chairman of the Windover Heights Board of Review. This office is not a fact-finder or investigator; only a court may decide factual issues such as these. In this instance, it appears that the public body has chosen to exercise its discretion not to include these matters in the meeting minutes. Absent clear facts to the contrary, this office cannot say that that choice was improper under FOIA. As previously stated, the public policy of FOIA is that the affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Therefore, I would advise public bodies that when there is doubt whether to include a matter in minutes, it is better to include more rather than less.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹The Windover Heights Board of Review is a Board appointed by the Vienna Town Council.
²Freedom of Information Advisory Opinion 25 (2004).
³Acts of Assembly, c. 730(2004)(codified in subsection I of § 2.2-3707).
⁴1977-1978 Op. Att'y Gen. Va. 39; 1959-1960 Op. Att'y Gen. Va. 77 (both interpreting § 15-248, regarding minutes taken by county Boards of Supervisors).
⁵Id.
⁶Definition available at http://www.m-w.com/cgi-bin/dictionary (last accessed February 15, 2006).
⁷The American Heritage Dictionary 1218 (2d College ed. 1982).
⁸Id. at 994.
⁹Definition available at http://www.m-w.com/dictionary/proposed (last accessed February 15, 2006).
¹⁰American Heritage Dictionary at 378.
¹¹Definition available at http://www.m-w.com/dictionary/deliberate (last accessed February 15, 2006).
¹²American Heritage Dictionary at 371.
¹³Definition available at http://www.m-w.com/dictionary/decide (last accessed February 15, 2006).
¹⁴Supra n. 3.
¹⁵Article by Brian Trompeter, The Sun Gazette, available at http://www.sungazette.net/stories/FFX27501.html (last accessed February 17, 2006).