VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-10-07

July 19, 2007

John Edwards
Editor, The Smithfield Times
Smithfield, 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 facsimile of June 8, 2007.

Dear Mr. Edwards:

You have asked whether a group called the Benn's Grant Development Project Review Team (the Review Team) is a public body subject to the public meeting requirements of the Virginia Freedom of Information Act (FOIA). You stated that Benn's Grant is the largest residential and commercial development ever planned in Isle of Wight County, and thus has generated a great deal of public interest. Furthermore, you stated that the Review Team has met with developers on several occasions, but those gatherings were not open to the public. A memo from county staff announced an initial meeting as follows:

A kickoff meeting has been scheduled for June 5 and 6, 2007 to begin the process of the independent analysis which will include meetings with key staff, elected and appointed officials, the property owners and the developer, as well as other stakeholders as outlined on the attached.

The attachment to the memo lists the membership of the Review Team to include two members of the Board of Supervisors, two members of the Planning Commission, ten county staff members, four outside consultants, and one representative of a local church. The memo attachment also lists members of a CDA Review Team¹ and a Developer Team. It is unclear how the Review Team was originally formed, but you indicated that during a Board meeting, two Board members asked to be kept informed about the project and were subsequently added as members of the Review Team. No information was presented regarding how the two Planning Commissioners became members of the Review Team. You stated that county officials, including representatives of the County Attorney's office, have stated that they do not consider the Review Team to be a public body because it was not created by the Board to conduct a specific task.

Before addressing the issue of whether the Review Team's gatherings are meetings subject to FOIA, it must first be determined whether the Review Team forms a public body. If the Review Team is not a public body, then it is not subject to the requirements of FOIA. A public body is defined in § 2.2-3701 to mean

any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include ... 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. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.

The Review Team is not a legislative body, authority, board, or other traditional type of public body as contemplated in the quoted definition. No facts were presented concerning the Review Team's funding, and without such facts this office cannot conclude that the Review Team is a public body by virtue of being supported wholly or principally by public funds. However, it appears that the Review Team may come within the definition as a 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.

In a prior opinion, this office considered a situation where two members of a Board of Supervisors met with two members of a School Board to discuss issues of concern to both Boards.² The facts given in that opinion indicated that there was either a four-member Liaison Committee created as a joint committee of both Boards, or in the alternative, that each Board created its own two-member Liaison Committee to meet with the Liaison Committee of the other Board. The gathering described consisted of three of the four officials who had been officially appointed to serve as Liaison Committee members by their respective Boards, plus one additional Board member who had not been appointed to any Liaison Committee. In either case, whether there was a single jointly-created Liaison Committee or two separate Liaison Committees that met together, there was no question that there had been a delegation of function from the Boards and that the members of the Liaison Committee(s) advised their respective Boards. As such, the Liaison Committee was a committee...of the public body created to perform delegated functions of the public body or to advise the public body and therefore a public body whose meetings were subject to FOIA.

On the other hand, a different, earlier opinion from this office concerned the same situation, but reached a different conclusion because the facts presented were significantly different.³ Again, the basic situation concerned the gathering of two members of a Board of Supervisors with two members of a School Board to discuss issues of mutual interest to both Boards. However, the facts presented in the earlier opinion indicated that none of the members involved had been designated or appointed by vote or other action to represent their respective Boards. Following an opinion of the Attorney General,⁴ this office concluded that the members did not constitute a committee, subcommittee, or other entity of either Board, and that the gathering in question was therefore not a meeting subject to FOIA. The facts in the Attorney General's opinion were that the representatives had been appointed or designated by their respective boards to attend the meeting and to report back. The Attorney General found that in that situation, each of the two-member delegations was a committee for purposes of FOIA, and thus their meetings must comply with the requirements of FOIA. The opinion hinged on the fact that the members were appointed for a specific purpose, and indicated that if the gathering was "merely an ad hoc, two-member group from each public body," that it would not be a committee under the definition of a public body, and thus would not be subject to FOIA. Following the same reasoning, this office concluded that an ad hoc gathering of two members of two Boards was not a meeting of a public body subject to FOIA.

Considering the facts you have presented, it appears that the two members of the Board who are also members of the Review Team may have been designated for that purpose by the Board, and may advise the Board regarding the activities of the Review Team.⁵ If such is the case, then following the reasoning of the opinions described above, those two members would form a committee, subcommittee, or other entity of the Board that could be considered a public body subject to FOIA. In the alternative, the Board members who are also on the Review Team may have volunteered independently to participate with the Review Team without any action on the part of the Board. If they were not designated by the Board, do not perform a delegated function of the Board, and do not advise the Board, then they would not be a committee, subcommittee, or other entity of the Board that could be considered a public body subject to FOIA. In that case, their participation with the Review Team would be on an ad hoc basis analogous to the Attorney General's opinion described above.

Taking into account the fact that the majority of the Review Team's membership consists of county employees rather than elected or appointed officials, and that the balance is of hired consultants and interested parties, it appears likely that the Review Team initially was formed by staff (perhaps by the county executive or administrator) to perform a staff function and provide advice to staff (again, likely to advise the county executive or administrator) on behalf of the County. If that is the case, then the Review Team itself is not a public body as that term is defined in FOIA, because it is not a subset of the Board or Commission and does not perform a delegated function of the Board or Commission or advise them. However, even if the Review Team itself is not a public body, the Supervisors and Commissioners might still constitute a public body if they are a designated entity of their respective Board or Commission and do perform a delegated function of, or provide advice to, the Board, the Commission, or both. In that case, the Supervisors and Commissioners would constitute a public body subject to FOIA as a 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. Such a committee would be subject to the meetings rules of FOIA, and would bring its open meeting requirements (notice, minutes, etc.) with it when it participated in Review Team meetings. Technically, the Review Team would not be a public body, but the participating Supervisors and Commissioners would form a public body that meets with the Review Team. The practical effect would be that when the Supervisors and Commissioners participate in Review Team meetings, those meetings would have to be public meetings under FOIA.

However, much of the above analysis is merely speculative because there are insufficient facts in this instance to reach any definite conclusion regarding the status of the Review Team as a public body. It is unknown how the Review Team was formed and who or what entity caused it to be formed. It is unknown how the Board and Commission members came to be considered members of the Review Team. It is unknown whether they are active participants during all Review Team meetings, or whether they only attend some of the meetings, and in what capacity they participate.⁶ It is not known whether the Review Team reports back to the Board, the Commission, the county executive, or some other person or entity. The facts you related do provide several indicia that the Review Team likely is a public body. In particular, that the Board members asked to kept informed about the Review Team's progress during a Board meeting, and were at some point then added as members of the Review Team, tends to indicate that the Board's involvement came about through Board action in some official capacity during that meeting. Of course, any official action of the Board should be recorded in the minutes; no such minutes have been presented as evidence, however, leaving that question unanswered.⁷ The fact that the Review Team membership includes two Board members, two members of the Planning Commission, and several County staff personnel also tends to indicate that the Review Team acts in some official capacity on behalf of the County. The fact that the initial meeting was announced in a memo from the County on official letterhead is similarly indicative. However, while these facts are indicative that the Review Team likely is a public body, they do not fully satisfy the definition of public body given in FOIA. Therefore without knowing additional details about how the Review Team was formed and how it functions, it is not possible to offer a conclusive opinion on its status.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹It appears in context that CDA stands for Community Development Authority; the memo indicates there was a proposal from a developer to create such an Authority to provide necessary improvements in conjunction with the Benn's Grant development. The CDA Review Team has many of the same members as the Review Team at issue, including the same two Supervisors, one of the same Commissioners, and many of the same county staff members.
²Freedom of Information Advisory Opinion 11 (2005).
³Freedom of Information Advisory Opinion 12 (2004).
⁴1990 Op. Att'y Gen. Va. 8.
⁵Note that the definition of meeting given in § 2.2-3701 includes meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708, 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. Had three members of either the Board or the Commission been included on the Review Team, then those three members gathering to discuss public business of the Board and/or Commission would be a meeting of the Board and/or Commission.
⁶For example, it is my understanding that someone will often be designated as contact person to a staff group on behalf of a public body. The contact person generally attends meetings where policy issues and items of broad interest and importance are presented or discussed, but often will not attend meetings concerned only with details of implementation. Such a contact person may or may not be considered a "member" of the staff group under different circumstances.
⁷Similarly, it is important to keep in mind that any records prepared or owned by, or in the possession of [the County] or its officers, employees or agents in the transaction of public business, including records concerning the Review Team and the Benn's Grant development, would be public records subject to disclosure under FOIA unless specifically exempt.