AO-05-09

May 19, 2009

Betty Ostergren
Mechanicsville, 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 telephone call of April 7, 2009.

Dear Ms. Ostergren:

You have asked whether certain practices of a Board of Equalization (the Board) are in violation of the Virginia Freedom of Information Act (FOIA). First, you stated the Board uses an audio recording for minutes, but turns the recorder off during some discussions without following the procedure to convene a closed meeting. Secondly, you indicated that there are various problems with votes taken by the Board: sometimes it appears decisions are made but no votes are recorded at all, sometimes there is an audio record of the vote but no written record of votes taken, and when votes are recorded on the audio tape, the persons voting are not identified.

As an initial matter, we must first determine whether the Board is a public body subject to the meetings requirements of FOIA. The term public body is defined in § 2.2-3701 to include, among other entities,

It appears that there are different methods by which a Board of Equalization may be appointed under Va. Code §§ 58.1-3370 through 58.1-3373. While it is not clear which of these methods applies in this case, it appears that the Board is a board...of [a] political subdivision of the Commonwealth and is supported wholly or principally by public funds. A prior opinion of the Attorney General determined that a board of equalization must hold open meetings in accordance with FOIA.¹ Given this background, we must conclude that the Board is a public body subject to the meetings requirements of FOIA. Also note that § 58.1-3378 provides additional public notice requirements when boards of equalization sit,² and § 58.1-3384 provides additional minutes keeping requirements. These provisions further reinforce the public character of meetings held by such boards.

Turning to your inquiries concerning meeting minutes, FOIA sets forth requirements for keeping minutes in subsection I of § 2.2-3707. The relevant portions of this subsection read as follows:

These provisions of law may be read together without conflict, making clear that the Board has an affirmative duty to keep meeting minutes of all its open meetings in accordance with both subsection I of § 2.2-3707 and § 58.1-3384. The question then becomes whether an audio recording is sufficient to satisfy the requirements of both sections.

The subject of audio minutes was recently addressed by the FOIA Council after study by a subcommittee of the Council. The Council concluded that FOIA currently requires written minutes, and recommended legislation to the 2009 Session of the General Assembly to clarify any confusion about that point.³ To that end, the General Assembly passed Senate Bill 1319 (Houck), which amends subsection I of § 2.2-3707 to specify that meeting minutes shall be in writing.⁴ That amendment takes effect July 1, 2009, but as stated in the second enactment clause of the bill, the provisions of this act are declaratory of existing law. Written minutes are what are contemplated and expected under FOIA. Additionally, in this case, the provisions of § 58.1-3378 state that certain orders recorded on specific forms must be included in the minutes, as well as transmitted to the taxpayer and commissioner of the revenue. As a practical matter it would appear that such recording of forms would necessarily require that the Board's minutes be in writing.

Additionally, you indicated that the Board apparently turned off the recording at some points during meetings and provided no minutes for those portions, although they did not specifically close the meeting according to any exceptions allowed under FOIA. Section § 2.2-3700 sets forth the policy of FOIA, stating among other things 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 quoted above, subsection I of § 2.2-3707 requires that [m]inutes shall be recorded at all open meetings. Read in conjunction, these provisions argue against any practice of turning off a recording during an open meeting of a public body without some justification, such as the convening of a closed meeting or taking a recess of some kind. However, as previously opined by this office regarding written minutes, FOIA does not require a verbatim transcript of a meeting, nor that every detail of a discussion be mentioned in meeting minutes.⁵ Subsection I of § 2.2-3707 requires that minutes must include (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. As it is unknown what happened during the meeting when the audio recording was turned off, without further facts, it cannot be determined whether the Board discussed a matter that should have been included in the minutes. In other words, without knowing what was not recorded, it cannot be stated with certainty that the audio record is missing contents that were required to be included in the minutes. However, the fact that the only record of a meeting (that was supposed to be open to the public and for which minutes were required to be kept) has sections that are incomplete without explanation creates exactly the type of atmosphere of secrecy FOIA seeks to prevent. As such, the better practice would be to continue recording during all portions of the meeting open to the public where the public business is discussed. In any case, as previously stated, written minutes are required under FOIA and an audio record by itself is insufficient.

Turning next to your inquiries regarding voting, the requirements for minutes quoted above specify that minutes include a record of any votes taken. Additionally, subsection A of § 2.2-3710 provides as follows:

Furthermore, subsection B of § 2.2-3711 provides that

Read together with subsection I of § 2.2-3707, supra, these provisions make clear that for a vote to comply with FOIA, a record of the vote must be included in the meeting minutes, the vote cannot be cast by secret or written ballot, and the vote must be taken during an open meeting conducted in accordance with FOIA. Public bodies may take "straw polls" or reach informal agreements or consensus during a closed meeting, but must take a proper vote during an open meeting to give effect to any decision made during a closed meeting.⁶ You indicated that it appeared that some decisions were made by the Board without any recorded vote. As a board acts by motion and vote, it is presumed that there was a vote taken in order for a decision of the Board to be made. If in fact a vote was taken without any record of that vote being kept in the minutes, such a practice is clearly in violation of the minutes requirements of § 2.2-3707 as quoted above. However, since there is no record of such a vote being taken, as a consequence there is no evidence of how the members cast their votes - i.e., whether the vote was taken by secret or written ballot, during a closed meeting, or during an open meeting. Without these further facts it cannot be determined whether other provisions of FOIA concerning voting were also violated.

You also indicated that some votes were included in the audio records, but the persons voting did not identify themselves (and were not otherwise readily identifiable by the sound of their voices). FOIA does not specifically require that each member of a public body identify himself or herself before voting at a meeting where the members are physically assembled together, nor is a roll-call vote required in every instance. Those in attendance at a public meeting can witness first-hand the votes as they are taken. Those not in attendance should be able to find out how the vote went by reading the written minutes. FOIA does not specify any special voting practices when the minutes are audio-only, because, as previously stated, having only an audio record does not satisfy the requirements for keeping minutes under FOIA. The fact that the members did not identify themselves before voting is not in itself a FOIA violation. However, as minutes are required to be in writing and to include a record of any votes taken, the failure to keep a written record of votes taken is in violation of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director