VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
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 messages May 20,
May 23, May 25, June 30, and July 26, 2017, and various
telephone conversations with staff over the same time
L. Konick, Esq.
You have asked several questions concerning the requirements
to provide direct notice of meetings to those individuals
who request it. As background, you stated that you
are a member of the Rappahannock Board of Zoning Appeals
(the Board) and that notice of all regular meetings
was posted following the annual organizational meeting
of the Board. However, you stated that direct notice
was not sent at the same time the general notice was
posted. As an example, you stated that the Board held
regular meetings in April and May of this year where
direct notice was sent by electronic mail on a Sunday
before a Wednesday meeting. You also provided an example
of notice sent by electronic mail that contained an
incorrect date in the subject line ("BZA Meeting
- Wednesday May 24th 7:00 p.m." for a meeting
actually scheduled to be held April 26), but the correct
date in the attached agenda. You informed us that
the day before the meeting was held, two more notices
for the same meeting were sent by electronic mail.
The subject line of the first such notice stated the
correct day but the wrong month ("BZA Meeting
tomorrow night - Wed. May 26th - 7:00 p.m.").
The second notice was sent after the close of business,
less than 24 hours before the meeting, with the correct
day and month in the subject line ("The BZA Meeting
is tomorrow - April 26th"). You wrote that at
that meeting you expressed concern that persons who
had requested direct notice may have been confused
by the notice announced in the subject lines of these
notices, but the other Board members voted to proceed
with the meeting. You asked if "the wrong date
in the subject line of the electronic notice invalidate[s]
the notice, or does it conform to the requirements
of Code §2.2-3707(E) if the date, time and place
stated in the agenda attached to the notice are actually
correct, even though the date on the email to which
that agenda was attached is incorrect?" Additionally,
you asked that we "address meetings that occur
after 5 p.m. or whenever 'the work day' ends. Since
our Board only meets once a month at 7 o'clock p.m.
the 4th Wednesday of each month, arguably its 'working
day' is at night." Lastly, you asked, "[W]hat
is a Board member supposed to do, if, after raising
possible FOIA notice issues, the majority of the Board
votes to proceed with the meeting anyway?"
The relevant policy of the Freedom of Information
Act (FOIA) set out in subsection B of § 2.2-3700
of the Code of Virginia is to ensure "the people
of the Commonwealth ... free entry to meetings of
public bodies wherein the business of the people is
being conducted." The policy statement goes on
to direct that FOIA "shall be liberally construed
to promote an increased awareness by all persons of
governmental activities and afford every opportunity
to citizens to witness the operations of government."
As of July 1, 2017, the requirements to provide public
notice of regular, special, emergency, and continued
meetings are set forth in subsections C through E
of § 2.2-3707 as follows:
Every public body shall give notice of the date,
time, and location of its meetings by:
Posting such notice on its official public government
website, if any;
Placing such notice in a prominent public location
at which notices are regularly posted; and
Placing such notice at the office of the clerk of
the public body or, in the case of a public body
that has no clerk, at the office of the chief administrator.
state public bodies subject to the provisions of
this chapter shall also post notice of their meetings
on a central, publicly available electronic calendar
maintained by the Commonwealth. Publication of meeting
notices by electronic means by other public bodies
shall be encouraged.
notice shall be posted at least three working days
prior to the meeting.
Notice, reasonable under the circumstance, of special,
emergency, or continued meetings shall be given
contemporaneously with the notice provided to the
members of the public body conducting the meeting.
Any person may annually file a written request for
notification with a public body. The request shall
include the requester's name, address, zip code,
daytime telephone number, electronic mail address,
if available, and organization, if any. The public
body receiving such request shall provide notice
of all meetings directly to each such person. Without
objection by the person, the public body may provide
electronic notice of all meetings in response to
have previously summarized these notice requirements
by stating that 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. 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. The second requirement of
subsection D is that notice of a special meeting must
always be given contemporaneously with the notice
provided to members of the public body. Additionally,
if any person requested direct individual notice as
set forth in subsection E of § 2.2-3707, then
the public body 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. In the case of a special, emergency,
or continued meeting, then pursuant to subsection
D of § 2.2-3707, such direct notice should be
provided contemporaneously with the notice provided
to the members of the public body.2
Because we are considering the timing as well as the
substance of the notice in this opinion, we must also
consider the relevant provisions of § 1-210 of
the Code of Virginia regarding the computation of
When an act of the General Assembly or rule of court
requires that an act be performed a prescribed amount
of time before a motion or proceeding, the day of
such motion or proceeding shall not be counted against
the time allowed, but the day on which such act
is performed may be counted as part of the time.
When an act of the General Assembly or rule of court
requires that an act be performed within a prescribed
amount of time after any event or judgment, the
day on which the event or judgment occurred shall
not be counted against the time allowed.
When an act of the General Assembly or local governing
body, order of the court, or administrative regulation
or order requires, either by specification of a
date or by a prescribed period of time, that an
act be performed or an action be filed on a Saturday,
Sunday, or legal holiday or on any day or part of
a day on which the state or local government office
where the act to be performed or the action to be
filed is closed, the act may be performed or the
action may be filed on the next business day that
is not a Saturday, Sunday, legal holiday, or day
on which the state or local government office is
For the purposes of this section, any day on which
the Governor authorizes the closing of the state
government shall be considered a legal holiday.
succinctly: "When an act is to be done a certain
time before a certain proceeding, the day
for the proceeding is not to be counted, but the day
the act was done is counted."3 [Emphasis
in original.] In addition to these statutory provisions,
when considering your questions regarding the time
of day of the notice and the meeting, we must also
consider the common law principle that the law does
not recognize a fraction of a day.4
Turning to your first inquiry, concerning the incorrect
date being in the subject line of an email sent to
those who had requested notice pursuant to subsection
E of § 2.2-3707, it is clear that, pursuant to
subsection C, meeting notices must include the date,
time, and location of the meeting. As previously opined
by this office, if any of these three elements are
lacking from either the notice posted generally or
the notice provided directly to individuals who request
it, then notice of the meeting would be insufficient.5
As a practical matter, if any of these items is missing
or incorrect, it renders the notice ambiguous at best,
as a person seeking to attend the meeting would not
know exactly when or where the meeting was to be held.
In the instance you describe, the subject line of
the first electronic mail notice contained the incorrect
date, but the attached agenda was correct. However,
while the inconsistency between the subject line and
the attached agenda may have been enough to put a
reader on notice that one of the two was wrong, there
would not have been a way to tell which date was correct.
Therefore, the initial notice was insufficient. The
same analysis applies to the second notice, which
still had an incorrect date in the subject line and
therefore was also insufficient. The third notice,
however, appears to have set out the correct date,
time, and location for the meeting, as required under
subsection C of § 2.2-3707. However, subsection
C of § 2.2-3707 requires that such notice be
posted "at least three working days prior to
the meeting." Therefore sending a corrected notice
less than 24 hours prior to a regular meeting does
not meet the requirements of subsection C of §
Your second inquiry asked that we address "meetings
that occur after 5 p.m. or whenever 'the work day'
ends." While the term "working day"
is not defined in FOIA, as stated in prior opinions
and in light of § 1-210 quoted above, a "working
day" generally does not include Saturdays, Sundays,
or legal holidays.6 Rules of statutory
interpretation direct that in the absence of a statutory
definition, one must use the ordinary meaning of a
term. Therefore we considered three dictionary definitions
of "working day:"
Commerce: Any day (other than Sunday or legal holiday)
on which legal business can be conducted. Whether
Saturday is a working day or not depends on the
custom or usage of the trade or jurisdiction.
2. Law: Any day other than Sunday or gazetted or
statutory holiday. Also called dies juridicus,
Latin for judicial day.7
the amount of time that a worker must work for an
agreed daily wage.
2. a day ordinarily given to working (distinguished
3. the daily period of hours for working.8
a day on which work is done, esp. for an agreed
or stipulated number of hours in return for a salary
2. the part of the day allocated to work
a seven-hour working day
3. (often plural) business
any day of the week except Sunday, public holidays,
and, in some cases, Saturday9
definitions comport with prior opinions from this
office and the general rule for computation of time
in § 1-210 in making clear that "working
days" generally do not include weekends, legal
holidays, or other days when the office of the public
body is closed. Whether Saturday or Sunday may be
a "working day" would appear to be a question
of fact depending on the circumstance, i.e., whether
the public body's office is open for business on that
particular day. While some public bodies may treat
Saturdays or Sundays as working days on a regular
or an occasional basis, those would be exceptions
to the general rule that most public bodies are not
open on weekends.
While the definitions are generally consistent in
excluding weekends, legal holidays, and other days
when offices are closed, there does appear to be an
important distinction between the commercial usage
and the legal definition in considering parts or fractions
of days. In applying the phrase "working day"
in a commercial or business setting, the definitions
quoted above all contemplate the "working day"
as that part of the day when someone works in return
for compensation, distinct from the part of the day
when someone is not working. However, as previously
mentioned, the law generally does not recognize fractions
of a day.10 This concept is recognized
in the first definition quoted above, which clearly
distinguishes between commercial and legal usage of
the phrase "working day." Applying these
concepts in consideration of your inquiry about meetings
that start after 5 p.m. (or otherwise after the typical
"working day" has ended), it makes no difference
at what time of day a meeting begins, because for
legal purposes under FOIA, the entire day is part
of the same "working day."
You indicated that at least some of your fellow Board
members felt that providing notice on a Sunday for
a meeting to be held at 7 p.m. on Wednesday constituted
notice "at least three working days prior to
the meeting." However, if we consider a regular
meeting that is scheduled to begin on a Wednesday
in light of the analysis above, it becomes clear that
notice given on Sunday is generally insufficient.
As stated above, subsection C of § 2.2-3707 would
require that notice be given three working days prior
to the meeting and the day of the meeting itself does
not count. Because the day of the meeting is not counted,
the notice requirement would be the same whether the
meeting began at 7 a.m., at 7 p.m., or at any other
time that day. Counting backward from Wednesday, Tuesday
and Monday would count as two working days prior to
the meeting. As stated above, most public bodies'
offices are closed on weekends, so Saturday and Sunday
are not counted as "working days." Based
on your description of events, in this instance the
notice was sent on Sunday but the public body's offices
were not open, so Sunday was not a "working day"
and does not count. Therefore, presuming the public
body's offices were in fact closed on the weekend,
the notice would have to have been posted on Friday
in order to be three working days prior to the Wednesday
meeting. The time of day on Friday when the notice
was posted would not make a difference since any time
on Friday is still Friday under the law. However,
as a matter of best practices, we have urged public
bodies in such a situation to post the notice one
or more days before the required day whenever possible
for two reasons. First, posting earlier gives the
public, as well as members and staff of public bodies,
the advantage of foreknowledge and additional time
to prepare for meetings, and it serves to implement
FOIA's policy of openness and awareness of governmental
activities. Second, as demonstrated by this opinion
and prior experience, many people have questioned
whether the time of day when notice is posted relative
to the time of day when a meeting is held affects
the validity of the notice. Rather than fuel such
speculations, it is generally easier to avoid them
altogether by posting notice earlier than required.
Your final inquiry asked what a Board member should
do if that member believes there may be problems with
the notice of a meeting but the majority of the Board
votes to hold the meeting anyway. You indicated a
particular concern that the member might be held liable
for a knowing and willful FOIA violation under §
2.2-3714. FOIA does not address this situation specifically.
Research did not reveal any court opinions or other
precedents advising how a member should proceed in
such a situation. Note, however, that subsection D
of § 2.2-3712 does address what a member is to
do if the member believes there was a problem in the
conduct of a closed meeting:
member of the public body who believes that there
was a departure from the requirements of clauses
(i) and (ii), shall so state prior to the vote,
indicating the substance of the departure that,
in his judgment, has taken place. The statement
shall be recorded in the minutes of the public body.
by analogy, if a member feels that the notice for
a meeting was insufficient, one option would be to
make a statement to that effect at the meeting to
be included in the minutes. Regarding your concern
about a knowing and willful violation, such matters
are questions for a court to decide. One would imagine
that if a member made a statement about possible errors
during a meeting, a court would take cognizance of
that fact, but there is no way to predict the outcome
should someone choose to bring a petition and allege
that the member committed a knowing and willful violation
of FOIA. I would note, however, that a prior opinion
from the Office of the Attorney General11
concluded that any vote taken at a meeting would be
ineffective if the notice was insufficient, because
subsection A of § 2.2-3710 provides that "no
vote of any kind of the membership, or any part thereof,
of any public body shall be taken to authorize the
transaction of any public business, other than a vote
taken at a meeting conducted in accordance with the
provisions of this chapter."
Thank you for contacting this office. I hope that
I have been of assistance.
that subsections C and D of § 2.2-3707, as well
as several other sections concerning meetings, were
amended by omnibus legislation that was recommended
by the FOIA Council after a three-year study conducted
pursuant to House Joint Resolution No. 96 (2014).
(2017 Acts of Assembly, c. 616.) While subsections
C and D were amended, the amendments did not change
timing provisions at issue in this opinion.
2See Freedom of Information Advisory
Opinions 08 (2007) and 03 (2001).
3W. Hamilton Bryson, Bryson on Virginia
Civil Procedure, Excursus on Time Limits, at Exc-1
(4th ed. 2005).
4See e.g., Brumley v. Grimstead,
170 Va. 340, 356 (1938) ("It is true that as
a general rule the law does not separate the parts
of a day, and, therefore, will not take cognizance
of fractions thereof; but even this principle is subject
to departure therefrom to promote right and the ends
of justice."); Crump v. Trytitle, 32
Va. 251, 261, 5 Leigh 251 (1834) ("[I]f the day
of the act be included at all, the whole day must
be included, for fractions of a day are not allowed....
[H]alf a day may be included and computed as a whole
day."); Humphrey v. Humphrey, 5 Va.
Cir. 37 (Clarke County 1982) ("In making what
I consider appropriate computation of time, the common
law rule that fractional days are generally not considered
applies."); 1978–1979 Op. Atty. Gen. Va. 113
("The law does not recognize fractions of a day.").
5Freedom of Information Advisory Opinion
e.g., Freedom of Information Advisory Opinions
01 (2017), 06 (2014), and 08 (2007).
7Business Dictionary online, http://www.businessdictionary.com/definition/working-day.html
(last visited July 23, 2017).
visited July 23, 2017).
9Collins English Dictionary online, https://www.collinsdictionary.com/us/dictionary/english/working-day
(last visited July 23, 2017) (italics in original).
10Supra, n. 4.
11Op. Atty. Gen. Va. No. 08-114 (2009)
(concluding that a city council's vote to appoint
a school board member was "null and void"
because of insufficient notice of the meeting at which
the vote was taken).