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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-04-18
May
21, 2018
Amy
P. Hall
Stafford, 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 electronic mail messages dated November
16, 2017.
Dear
Ms. Hall:
You have asked for an advisory opinion regarding (i)
certain open meeting practices of the Stafford County
Board of Supervisors (the Board) and (ii) responses
you received from Stafford County in reply to two
information requests under the Virginia Freedom of
Information Act (FOIA). As background, you provided
a copy of your initial FOIA request to Stafford County
in the form of an email dated September 11, 2017,
and Stafford County's response in the form of a letter
from the Office of the County Attorney dated September
18, 2017. You also provided a copy of a follow-up
FOIA request to Stafford County in the form of an
email dated September 22, 2017, an email from Wendy
Mallow with Stafford County dated September 27, 2017,
invoking the seven-working-day extension provided
in § 2.2-3704, and the response to your request
from Stafford County in the form of a letter dated
October 9, 2017. I will address your questions as
two different topic areas, the first topic area addressing
the open meeting requirements of the Board and its
committees and the second topic area addressing the
Board's obligations regarding a request for information
under FOIA.
Topic Area 1: Open Meetings of the Stafford County
Board of Supervisors and Its Committees
Questions Presented
You have asked whether the Board must provide public
access to recordings or written minutes from its committee
meetings. Additionally, you have asked whether the
Board must comply with the open meeting requirements
under FOIA for an annual planning meeting, including
providing notice of the meeting, recording the meeting,
and recording minutes of the meeting.
Factual Background
The Board is the governing body of Stafford County
and comprises seven elected members.1 The Board has
established standing committees to address specific
topic areas of the Board's work, with each committee
comprising two to three members of the Board. The
meeting dates, times, and locations of the committees
are posted on the standing committee website and the
Stafford County calendar. You have noted that the
committee meetings are not recorded and that minutes
are not taken.
On February 10 and 11, 2017, the Board held an annual
planning meeting in Warrenton, Virginia. According
to the agenda posted on the Board's website, topics
discussed at the meeting included a five-year financial
plan, development of a strategic action plan, and
growth management strategies for Stafford County.2
You indicated that the location and agenda for the
meeting were not published in advance, despite mention
during a February 7, 2017, meeting that a tentative
agenda had been provided to the members of the Board
and that agenda materials would be available on the
members' iPads the next day. You noted that the agenda
was posted on the website several days after the meeting,
at your request. Finally, you advised that the meeting
was not recorded and that meeting minutes were not
taken.
Applicable Law and Discussion
FOIA states in § 2.2-3707 that "[a]ll meetings
of public bodies shall be open, except as provided
in §§ 2.2-3707.01 and 2.2-3711" and
goes on to provide various open meeting requirements.
Therefore, the first determination that must be made
is whether the Board and its committees qualify as
public bodies under FOIA. "Public body"
is defined in § 2.2-3701 and includes, among
other things, "governing boards of counties"
and "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." The Board is the
governing body of Stafford County. The committees,
comprising members of the Board, were created by the
Board to perform functions of the Board and to advise
the full Board.3 Both the Board and its
committees clearly fall under the definition of "public
body" and are subject to the requirements of
FOIA.4
The
second issue we must determine is whether the committee
gatherings and the annual planning meeting of the
Board qualify as meetings under FOIA that are subject
to the open meetings requirements. There are two requirements
for a gathering of a public body to qualify as a meeting
under FOIA: (a) the presence of three or more members,
or a quorum (if a quorum is less than three members),
of a public body sitting as an assemblage and (b)
the discussion or transaction of public business of
the public body.5 The committees and the annual planning
meeting clearly involve planning and discussion about
numerous issues relating to the public business of
Stafford County. Assuming three or more members of
the Board attend the planning meeting and at least
a quorum of two members of each committee is present
at committee meetings, both the annual planning meeting
and the committee meetings are subject to the open
meeting requirements of FOIA.
Finally, we must examine the open meeting requirements
and whether there are any exceptions to those requirements
that would apply to the committee meetings or the
annual planning meeting. Generally, meetings of public
bodies will need to be open unless a closed meeting
is authorized for a particular purpose under §
2.2-3711.6 Under the facts provided, neither the annual
planning meeting nor the standard committee meetings
fall under one of closed meeting purposes. Both are
therefore subject to the open meetings requirements.
First, FOIA requires notice of the date, time, and
location of its meetings at least three working days
prior to the meeting.7 The Board must comply with these
notice provisions for both the committee meetings
and the annual planning meeting. From the information
you provided, it appears that the Board was not compliant
with this requirement for the annual planning meeting,
as it did not provide advance notice.
Second, FOIA requires that agendas and all materials
furnished to members of a public body be made available
for public inspection at the same time they are given
to members of the public body.8 On the basis of the
facts you provided, it is unclear whether that was
the case in regards to the annual planning meeting
agenda. While we strongly encourage public bodies
to post the agendas for meetings online, the only
requirement is that the agenda be available for public
inspection at the same time it is given to the members
of the public body. It is possible that the annual
planning meeting agenda was available for inspection
without being posted online, but we do not have all
the information to make that determination.9 According
to the standing committee website, the agendas of
the committee meetings are posted online prior to
the meetings and appear to be in compliance with the
requirements of FOIA.
Third, FOIA requires that public bodies allow recordings
of open meetings, but it does not require that the
public body itself record the meetings.10 The Board
would therefore not be in violation of FOIA if it
did not record the annual planning meeting or the
committee meetings. If the Board did decide to make
a recording of a meeting, then that recording would
be subject to the public records requirements of §
2.2-3704, but that does not appear to be the case
in the given factual scenario.
The final requirement for open meetings is that minutes
be recorded.11 Minutes would have to be taken at the
annual meeting because there is no exception to the
minutes requirement for an open meeting of the full
Board. There is an exception, however, to the minutes
requirement for committees appointed by the governing
bodies of counties, except where the membership of
such committee includes a majority of the governing
body of the county. The committee meetings, therefore,
do not need to comply with the minutes requirement
because each committee is composed of only two or
three members of the Board, which is not a majority
of the seven-member Board.12 Minutes would be required
if a committee meeting were to occur that included
four or more members of the Board, but that does not
appear to be the situation in the instant case.
Conclusion
Assuming at least three members of the Board are present
at the annual planning meeting and quorums of the
committees are present at committee meetings, both
the Board's annual planning meeting and committee
meetings are subject to the open meeting requirements
of FOIA because (1) the Board and its committees are
public bodies and (2) the annual planning meeting
and the committee meetings involve the discussion
or transaction of public business.
For the annual planning meeting, the Board must provide
public notice of the meeting in advance, provide public
access to inspect the agenda and materials for the
meeting at the same time those materials are given
to members of the Board, allow recordings of the meeting,
and record minutes. The Board is not required to record
the meeting. The Board was therefore not compliant
since it did not post advance notice of the meeting
or record minutes of the meeting. Although the Board
did not post the agenda online at the same time the
members of the Board received it, it is unclear if
the Board made the agenda available for public inspection
at that time, which is the only requirement regarding
the agenda.
The committees must also provide advance notice of
their committee meetings, provide public access to
the agenda and materials at the same time those materials
are given to members of the committee, and allow recording
of the committee meetings. However, the recording
minutes of the committee meetings is not required
since less than a majority of the Board sits on each
committee. Additionally, there is no requirement that
the committee meetings be recorded.
Topic Area 2: Obligations of Stafford County in
Response to a Request for Information under FOIA
Questions Presented
You have asked three questions regarding the obligations
of Stafford County regarding requests for information
under FOIA. The first is whether Stafford County must
have a policy document establishing its intention
to exempt all documents allowed to be exempt by law
and the requirements of such a document if required.
The second is whether Stafford County must provide
an explanation for any records that are missing or
not provided in response to a request. The final inquiry
involves whether individual employees or elected officials
can self-report in response to a FOIA request.
Factual Background
In the response to your first request for information,
you noted that Stafford County failed to provide certain
records and did not reference whether those records
were withheld, could not be found, or do not exist.
You followed up on September 22, 2017, with a second
request asking for more information, and Stafford
County provided additional information, including
emails and text messages to the individual Board members
inquiring about information they had in their personal
possession. You noted that Stafford County again failed
to provide particular records you requested and did
not reference whether those records were withheld,
could not be found, or do not exist.
Applicable Law and Discussion
Your first question deals with notice of a general
policy for exemption of records by a public body.
Under § 2.2-3704.1, FOIA requires public bodies,
including counties, to post notice of "[a]ny
policy the public body has concerning the type of
records it routinely withholds from release as permitted
by this chapter or other law." In describing
how the information is provided to the public, FOIA
only requires that public bodies make the information
to the public available upon request and post a link
to the policy on its website.13 There are no other specific
requirements as to how the policy is developed or
that a specific physical document exist. The Board
has a link on the home page of its website linking
to its policy regarding exemptions, which would appear
to be in compliance with the current requirements
of FOIA for notifying the public of the type of records
it routinely withholds.14
Your
second question regarding requests for information
under FOIA involves the requirements of a public body
to provide an explanation for missing requested records.
In response to a request for records, public bodies
such as the Board must either provide the records
requested or provide one of the following four responses
in writing: (A) that the records are being entirely
withheld, providing the volume and subject matter
of the records being withheld as well as the specific
Code section that authorizes the withholding; (B)
that the requested records are being provided in part
and are being withheld in part, providing the volume
and subject matter of the records being withheld as
well as the specific code sections that authorize
the withholding; (C) that the requested records could
not be found or do not exist; or (D) that it is not
possible to complete the request within the five-work-day
period and that the public body requests an additional
seven work days to provide one of the responses. Therefore,
if a requested public record is not included in a
response to a FOIA request, the public body should
either state a valid exemption for why the record
is withheld or provide an explanation that the record
could not be found or does not exist. Failing to respond
to a request for records is considered a denial of
the request and a violation of FOIA.15
On
the basis of the information you provided, Stafford
County failed to provide one of the above responses
in regard to numerous records requested. It is possible
that some of the information you requested does not
exist in a manner that qualifies as a "public
record."16 For example, the manner
in which certain information is maintained by Stafford
County, or certain dates and times of complaints that
were not written down, may not exist as a public record.
If a record that is requested does not exist, a public
body has no duty to create a record in response to
a FOIA request.17 However, if a record does not exist
or cannot be found, that must be conveyed in the public
body's response to the request. If Stafford County
failed to do that as alleged in the facts provided,
then it would be in violation of FOIA.
Your final question is whether individual employees
and elected officials can self-report in response
to a FOIA request. You provided a particular example
in the form of an email dated October 2, 2017, in
which the Chief Deputy Clerk to the Stafford County
Board of Supervisors requested the individual Board
members to provide her with any "handwritten
or typed letters or notes plus emails with attachments,
texts, social media posts, and Facebook messages sent
and/or received during 2017 by any County staff member
and/or member of the Board of Supervisors." Presumably,
that information from the Board members would then
be passed along, compiled, and provided in the response
to the FOIA request. In regard to the efforts that
public bodies must undertake in a search for records,
this office has reasoned previously that "while
the methods and extent of searches may vary, any search
for records made under FOIA must be carried out in
good faith."18 In this case, the Stafford
County Board of Supervisors is composed of seven individual
members each of whom has his or her own email, phones,
and social media. It would therefore seem reasonable
and a good practice for members of a public body to
examine documents they have and provide those records
in response to a FOIA request. Given the facts as
presented, it appears that the search was made in
good faith in an attempt to discover as much information
as possible from each member of the Board.
Conclusion
FOIA does not require that the Board have a particular
procedure for the creation of a routine exemption
policy for records or that the policy be contained
in a physical policy document, but it does require
that the Board post a link on its website to the policy.
On the basis of the facts provided, it appears that
the Board has complied with FOIA in that regard by
providing the link to its policy on its website.
Public
bodies, including the Board, must provide the requested
records or one of the four other responses detailed
under FOIA in response to a request. If requested
records cannot be found, do not exist, or are being
withheld, the Board must state in writing the reasons
why the records are not being provided. On the basis
of the information provided, it appears that the Board
did not provide an explanation for multiple records
requested.
Finally, individual employees and elected officials
can and should provide information in their possession
in response to a FOIA request. Considering that the
Board consists of multiple individuals with individual
phones, emails, and social media, it makes sense that
each member would examine his or her own documents
in order to provide all available and applicable documentation.
The only requirement is that public bodies must make
a good faith search for the requested records. In
the facts you provided, it seems Stafford County did
that by reaching out to each member of the Board and
requesting that the member provide any records in
the member's individual possession, which presumably
were provided and passed on in the response.
Thank you for contacting this office.
We hope that this opinion is of assistance.
Sincerely,
Chad
M. Ayers
Attorney
Alan
Gernhardt
Executive Director
1Stafford
County Board of Supervisors, https://staffordcountyva.gov/319/Board-of-Supervisors
(last visited April 24, 2018).
2Board of Supervisors 2017 Annual Planning
Meeting, https://staffordcountyva.gov/AgendaCenter/ViewFile/Agenda/_02102017-206
(last visited April 24, 2018).
3See Stafford County Board of
Supervisors Standing Committee Schedule, https://staffordcountyva.gov/1109/Standing-Committee-Schedule
(last visited April 11, 2018) (stating that "the
Board has established standing committees to help
focus their work on various issues").
4See Freedom of Information Advisory
Opinion 3 (2014) (providing a similar analysis and
finding that the committees of the Smithfield Town
Council are public bodies subject to FOIA).
5§ 2.2-3701.
6It
is important to note that even closed meetings must
start with an open meeting where the public body takes
an affirmative recorded vote approving a motion that
identifies the subject matter of the closed meeting,
the purpose of the closed meeting, and the applicable
exemption from the open meeting requirements.
7§ 2.2-3707(D).
8§ 2.2-3707(F).
9See
Freedom of Information Advisory Opinion 5 (2012) (advising
that an authority only needs to make its meeting agenda
packets available for inspection to the public at
the same time they are provided to commissioners,
but is not required to post the agenda packets online).
10§
2.2-3707(G).
11§ 2.2-3707(H).
12See Freedom of Information Advisory
Opinion 8 (2007) (providing a similar analysis of
a Town Council Committee composed of less than a majority
of the Council).
13§ 2.2-3704.1.
14The Rights
and the Responsibilities of Stafford County under
the Virginia Freedom of Information Act, https://staffordcountyva.gov/DocumentCenter/View/1612
(last visited April 24, 2018).
15§
2.2-3704(E).
16See § 2.2-3701 (Stating
that the definition of "public record" means
"all writings and recordings that consist of
letters, words or numbers, or their equivalent ...
however stored, and regardless of physical form or
characteristics, prepared or owned by, or in the possession
of a public body or its officers, employees or agents
in the transaction of public business").
17§
2.2-3704(D).
18Freedom
of Information Advisory Opinion 4 (2010).
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