FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Vienna , Virginia
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:
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.
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.
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.
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.
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
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.
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.
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.
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.
you for contacting this office. I hope that I have been of
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).
6Definition available at http://www.m-w.com/cgi-bin/dictionary
(last accessed February 15, 2006).
7The American Heritage Dictionary 1218 (2d College
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).