FREEDOM OF INFORMATION
COMMONWEALTH OF 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 June 12, 2007.
have asked several questions about a meeting of the Finance,
Budget and Administration Committee (the Committee) of the
Town Council for the Town of Damascus held on Wednesday, May
30, 2007. As background, you related that the Committee holds
its regular meetings on the third Wednesday of each month.
You stated that this particular meeting was held on the fifth
Wednesday of the month, without any public notice being provided.
You indicated that the Town Clerk and the Mayor confirmed
that no notice of this meeting had been posted. You stated
that in addition to the three members of the Committee, who
are also members of the Town Council, several other persons
were present: two other Town Council members, the Mayor, and
the Town Attorney. Furthermore, you stated that the meeting
was held behind locked doors, guarded by a police officer.
The purpose of the meeting was to interview prospective candidates
for the vacant position of Town Treasurer. You stated that
the position had been vacant for three weeks prior to the
meeting, and that the meeting therefore was not an emergency.
You included minutes of the meeting that indicate that the
Committee moved to enter closed session for the purpose of
consideration and interview of prospective candidates for
the office of Town Treasurer per Virginia Code Section 2.2-3711(A)(1),
and that the closed session was certified after the Committee
reconvened in open meeting. According to the minutes both
the motion to convene the closed meeting and the motion to
certify carried unanimously. Further facts will be provided
as appropriate hereafter.
initial matter, it is understood that the Committee in question
is a committee of the Town Council that performs a delegated
function of the Town Council, advises the Town Council, or
both. As such, the Committee is a public body subject
to the Virginia Freedom of Information Act (FOIA), as defined
in § 2.2-3701. That definition includes any committee,
subcommittee, or other entity however designated, of the public
body created to perform delegated functions of the public
body or to advise the public body.
first three questions address different aspects of the notice
requirements for public meetings held pursuant to FOIA. Noting
that the Committee met on a Wednesday, but not their regularly
scheduled Wednesday, and that no public notice was given,
you ask whether this meeting was held in violation of FOIA.
You also asked where notice should be posted, and how many
days in advance the notice should be posted. Subsections C
through E of § 2.2-3707 provide the public notice requirements
for regular, special, and emergency meetings of public bodies,
as well as the requirements for providing notice directly
to individuals who request such notification. You stated that
the meeting in question was not a regularly scheduled meeting,
nor was it an emergency meeting; therefore it must be considered
a special meeting for FOIA purposes.
relevant general notice requirements for meetings of public
bodies are set forth in subsection C of § 2.2-3707 as
public body shall give notice of the date, time, and location
of its meetings by placing the notice in a prominent public
location at which notices are regularly posted and in the
office of the clerk of the public body, or in the case of
a public body that has no clerk, in the office of the chief
administrator....Publication of meeting notices by electronic
means by [local and regional] public bodies shall be encouraged.
The notice shall be posted at least three working days prior
to the meeting.1
relevant in this situation, subsection D of § 2.2-3707
provides that [n]otice, reasonable under the circumstance,
of special or emergency meetings shall be given contemporaneously
with the notice provided members of the public body conducting
the meeting. Because the meeting at issue was a special
meeting, subsections C and D must be read together to determine
the applicable notice requirements. Your first question asked
whether this meeting was held in violation of FOIA, given
that no notice was provided. If no notice was given, then
the notice requirements of FOIA as set forth in these subsections
clearly could not have been satisfied, and therefore this
lack of notice was a violation of the procedure mandated by
your question concerning where notices should have been posted,
the Committee should have posted notice of the meeting in
a prominent public location at which notices are regularly
posted and in the office of the clerk [or chief administrator]
of the public body. In practical terms, these requirements
may be satisfied by posting one notice on a bulletin board
or other posting facility in a public area of the town hall
or other public location where the Committee meets, and posting
the second notice in the office of the Committee's clerk or
chief administrator. Because the Committee is a local public
body, posting additional notice by electronic means - typically
such as on a website, or through local television or radio
advertisement - is not required, but it is encouraged.
next question concerned when the notice should have been posted.
The general rule is that notice of a public meeting should
be posted three working days prior to the meeting, as set
forth in subsection C. The three working days do not include
weekends or legal holidays, and the day of the meeting should
not be counted as one of the three working days. Because this
meeting was a special meeting rather than a regular meeting,
subsection D modifies this general rule, as quoted previously.
The first requirement of subsection D is that all notices
of special meetings be reasonable under the circumstance.
A decision regarding whether any particular notice given was
reasonable under the circumstance necessarily involves
factual determinations that can only be made by a court. Generally
speaking, public bodies should post notice at least three
working days in advance of any meeting unless the particular
factual circumstances surrounding a special or emergency meeting
necessitate some shorter time period.2 In this instance, notice
reasonable under the circumstance was not given because
no notice was provided at all. The second requirement of subsection
D is that notice of a special meeting must always be given
contemporaneously with the notice provided members of the
public body. Therefore public notice of this special
meeting should have been posted at the same time that notice
was given to the members of the Committee. Again, given the
fact that no notice was provided at all, this requirement
could not have been satisfied.
final consideration regarding notice, if any person requested
direct individual notice as set forth in subsection E of §
2.2-3707, then the Committee would also be required to provide
notice of all meetings directly to each such person.
Public bodies may choose to provide such notice by electronic
means (e.g., electronic mail or telephone call) if there is
no objection by the person requesting such notice. The facts
presented did not indicate whether such direct individual
notice had been requested. If it had been requested, then
following subsection D of § 2.2-3707, such notice should
have been provided contemporaneously with the notice provided
members of the public body.
next question asks whether the minutes must disclose the presence
of all Town Council members who were at the meeting, or only
those members who are on the Committee. You pointed out that
five of the six members of the Town Council (including the
three Committee members), the Town Attorney, and the Mayor
were all in attendance at the meeting, but the minutes only
reflect the presence of the three Committee members. Subsection
I of § 2.2-3707 provides generally that minutes shall
be recorded at all open meetings and shall include...the
members of the public body recorded as present and absent.
Generally speaking, meeting minutes are required to record
the presence and absence of persons who are members of the
public body holding the meeting, not the presence of other
persons (such as members of other public bodies, other officials,
etc., who may be in attendance). Additionally, subsection
I of § 2.2-3707 requires public bodies to record a summary
of the discussion on matters proposed, deliberated or decided,
and a record of any votes taken.3 In this
context, public bodies generally do record the identities
of other persons present who participate in the meeting (for
example, noting in the minutes speakers who give presentations
or citizens who offer public comment).
in exception to the general rule, subsection I of § 2.2-3707
also states that
shall not be required to be taken at deliberations of ...
study commissions or study committees, or any other committees
or subcommittees appointed by the governing bodies or school
boards of counties, cities and towns, except where the membership
of any such commission, committee or subcommittee includes
a majority of the governing body of the county, city or
town or school board.
in question is a committee of the Town Council (the governing
body of the locality) comprised of three out of the six Town
Council members (less than a majority). Therefore, following
the quoted exception, the Committee is not required to record
minutes of its meetings.4
Your last question asks whether it is a violation of FOIA
to lock the door to a meeting room prior to the start of a
closed meeting. Subsection A of § 2.2-3707 requires that
all meetings of public bodies be open unless properly closed
pursuant to an exemption. Section 2.2-3701 defines a closed
meeting as a meeting from which the public is excluded.
Section 2.2-3712 sets forth the procedural requirements for
holding such a closed meeting.5 While FOIA says
nothing specific about locked doors, it is apparent in this
context that a meeting held behind locked doors is one from
which the public is excluded physically and therefore
is a closed meeting by definition. If the procedure
required to convene a closed meeting was not followed prior
to locking the door, then the meeting was an improperly closed
meeting that violated the procedural requirements of FOIA.
In this context, you indicated that the door was locked at
6:00P.M., prior to the arrival of the Committee member listed
in the meeting minutes as the member who seconded the motion
to convene the closed meeting. Therefore it appears that the
meeting was closed before the motion to close was made and
approved, and that the meeting was closed in violation of
the procedural requirements of FOIA.
you for contacting this office. I hope that I have been of
notice requirements solely applicable to state public bodies
have been excised from the quoted subsection.
that an emergency is defined as an unforeseen circumstance
rendering the notice required by this chapter impossible or
impracticable and which circumstance requires immediate action
by § 2.2-3701. An emergency meeting therefore will necessarily
have less than the standard three working days notice, by
3See Freedom of Information
Advisory Opinion 01 (2006)(discussing minutes requirements).
facts presented herein do not indicate that the other Town
Council members present at the Committee meeting were discussing
or transacting public business. If they were, it is possible
that the meeting was a de facto meeting of the Town
Council. See Freedom of Information Advisory Opinion 02 (2006).
If this was a de facto meeting of the Town Council,
then minutes of the meeting - as a Town Council meeting -
would have been required, and those minutes would have to
reflect the presence or absence of each Town Council member.
e.g., Freedom of Information Advisory Opinion 06 (2007)(discussing
in detail the procedural requirements for closed meetings).