Sunrise over V.A. Capitol.

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
C
OMMONWEALTH OF VIRGINIA


AO-02-13

March 20, 2013

Jeffrey E. Fogel, Esquire
Charlottesville, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based upon the information presented in our telephone conversation of January 28, 2013, and your letter of January 31, 2013. Additional information was provided by letter dated February 6, 2013, from the Office of the General Counsel of the University of Virginia.

Dear Mr. Fogel:

You have asked whether the University of Virginia (the University) Board of Visitors (the Board) violated the Virginia Freedom of Information Act (FOIA) by denying entry to a public meeting to certain students. You stated that on November 8, 2012, the Board held a public meeting that approximately twenty students tried to attend. You stated that the students were informed that only seven seats would be available and no one would be permitted to stand in the audience. You stated that this restriction was contrary to past practice of the Board, which had previously allowed audience members to stand. You also stated that the official capacity for the room is 307, but according to counsel for the university, there were only 104 chairs.1 You indicated that when the students sought entry or an explanation why they could not enter, they were threatened with expulsion and arrest. Further, you related that the students were carrying signs to express themselves, but were peaceful and did not interfere with access to the building or other activities in the building. You indicated that because of the restricted access to the students, you do not believe this meeting of the Board was truly open as is required under FOIA.

The policy set forth in § 2.2-3700 clearly establishes the proposition that all meetings covered by FOIA must be open to the public unless they are closed pursuant to a properly invoked legal exemption. Specifically, pursuant to subsection B of that section

the General Assembly ensures the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted. 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. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public .... All public records and meetings shall be presumed open, unless an exemption is properly invoked.

Section § 2.2-3701 defines open meeting to mean a meeting at which the public may be present, and defines closed meeting to mean a meeting from which the public is excluded. Subsection A of § 2.2-3707 provides that [a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711.2

You correctly observed that FOIA itself is silent regarding logistical matters such as the size of meeting rooms, how meeting rooms should be set up, whether and what technologies should be available to facilitate meeting presentations and participation (microphones, projector screens, etc.). As a matter of best practices, if a situation arises where more persons wish to attend a public meeting than the meeting room can accommodate, this office has recommended that whenever possible the public body should move to a location that will allow more people to attend, as well as to use whatever technology is available to increase public access. For example, some public bodies can set up overflow rooms with closed circuit television monitors or broadcast on a local cable channel or radio station. When such measures are not available, and a meeting room simply fills to capacity, the fact that other persons are unable to attend would not be a FOIA violation because the public body is not intentionally restricting public access, it is just a consequence of physical limitations of the space available.3

However, the situation you describe is one where there was sufficient room for additional people to attend the meeting, but those people were refused entry, even though the meeting itself was not closed pursuant to any exemption. Under these facts, the meeting was open to some people, but closed to others. Therefore it was a closed meeting to the extent that some members of the public were excluded, despite there being additional room capacity available. I note that the meeting was also open in part, as some members of the public were present. Pursuant to subsection A of § 2.2-3712, a meeting may only be closed when

the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711.

It appears that no such motion was made and no such vote was taken. Thus, by excluding some members of the public without a proper motion and vote, and without any apparent logistical limitation, it appears under the facts you have described that the Board violated the FOIA principle of free entry to meetings of public bodies wherein the business of the people is being conducted and the statutory requirement that [a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711. Again, while FOIA is silent regarding the logistics involved in holding public meetings, because the University is now aware of the increased interest in its meetings, the best practice is to ensure a meeting location large enough to accommodate all. The point is about openness and access to the public; it is not about how many chairs are in a room, it is about making sure there are enough chairs.

Finally, I note that you sent to the University's Office of the General Counsel a courtesy copy of your request for an opinion from this office. The General Counsel replied to you by letter, and sent a courtesy copy of that reply to this office. The facts related in the General Counsel's reply described this situation very differently, and those facts would likely lead to a different conclusion of law. For example, the General Counsel indicated that the meeting held in the auditorium of the Harrison Institute would accommodate twice as many chairs as the usual meeting location in the Rotunda, the crowding of the students at the doorway raised safety and fire hazard concerns, the meeting was publicly streamed, and that the University is already considering additional options such as an overflow room. These alternative facts would lead to the conclusion that the only limit imposed on public access was the capacity of the room coupled with fire and safety concerns, and that the University was already taking steps to provide greater public access than usual. However, this office is not a trier of fact; only a court has the authority to resolve a factual dispute.

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

Sincerely,

Maria J.K. Everett
Executive Director

1It appears that the meeting was held in the auditorium of the Harrison Institute. According to the University website, "The room is equipped with chairs, round and rectangular tables, projection screen, video/data projection system, wireless network, and phone jacks. The auditorium can accommodate up to 200 for a lecture and up to 120 for a seated meal." (http://www2.lib.virginia.edu/harrison/Facilities.html, last visited March 20, 2013.)
2Section 2.2-3707.01 concerns meetings of the General Assembly, while § 2.2-3711 lists the purposes for which closed meetings are allowed, among other provisions.
3Note that, hypothetically, if a public body were to move from its regular meeting location to a smaller room in order to avoid public scrutiny on a controversial issue, for example, that would be a violation of FOIA.

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