FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
March 14, 2001, Richmond
The Freedom of Information
Advisory Council held its fourth meeting to continue its deliberations
on electronic communication and its impact on the Virginia
Freedom of Information Act (FOIA). The council also reviewed
several bills passed by the 2001 Session of General Assembly
directly impacting FOIA as well as those bills and resolutions
relating to public access to government records (HJR 789,
HB 2169, HB 2750, SB 884, SB 1096, and SB 1322).
The council also
discussed several bills from the 2001 Session of the General
Assembly that did not advance during the legislative process
but were instead referred to the council for study. The three
bills, HB 1597, HB 2091, and HB 2700, would have amended FOIA
as it relates to current records exemptions. The council decided
that patrons should be invited to present their bills to the
council at its next meeting and be given an opportunity to
provide necessary background information at that time.
The council continued
its deliberations on the treatment of electronic communications
as they relate to the open records and meetings requirements
of FOIA. In a records context, e-mails should not be thought
of merely as an instant means of leaving or responding to
messages in a manner similar to phone calls and voice mail;
but as equal, in actuality and legally, to a letter or memo.
In consideration of public rights of access, retention, and
disposal, and the functions and responsibilities of public
employees, e-mails should be treated in most respects like
paper. The definition of "public record" under FOIA includes
e-mails, and from a record perspective, e-mails fit easily
into current FOIA language. One potential problem with electronic
communications, however, derives from a general perception
that e-mails are intangible, as evidenced from the practice
and ease of deleting them.
But from a meeting
perspective, electronic communications may be more troubling.
As defined in FOIA, "meeting" means "the meetings including
work sessions, when sitting physically, or through telephonic
or video equipment pursuant to § 2.1-343.1, 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." In a meeting context, a series of electronic communications
between "individual members of a public body which result
in a collective decision or a vote taken by email would be
inconsistent with law. Generally, except for certain state
agencies in limited enumerated instances, any action or vote
taken by a public body must occur only at a meeting where
a quorum is physically assembled.
communications, access advocates are concerned that the public
will be left out of witnessing the operation of government.
Public officials, on the other hand, are concerned that they
(i) cannot avail themselves of technology or (ii) have to
give access to their dealings beyond that contemplated by
FOIA. A pertinent question in the examination of electronic
communications and FOIA, especially from a meetings perspective,
is: When is email just correspondence, and when does it cross
the line and become the discussion or transaction of public
The Director of
the Division of Legislative Automated Systems reported that
electronic meetings with meaningful public access are possible
to achieve, although they require special considerations that
are not present with traditional "physically assembled" meetings.
Advantages of technology-based meetings cited were the accessibility
to expertise; the ability to share detailed information; the
expansion of participation because electronic meetings are
not limited by location or time of day; and the ability to
"capture" presentations for future use. Technology-based meetings
also present several disadvantages, including the loss of
visual clues (i.e., body language, etc.), the expense of "technological"
participation versus physically assembled meetings, the limiting/inhibiting
of participation, and the complexity of electronic meeting
logistics (i.e., at whom or what will people be looking, distribution
of agendas and handouts, and moderation of participation,
In order to ensure
public access to the meetings of public bodies under FOIA,
essential components must be built into the process. These
essential components are open (nonproprietary) software, preservation
of the historical record, and consideration of the observation
versus active participation continuum (how will participation
be structured). Illustrating this last point, members of the
council were encouraged to recall their own experience with
conference calls where many people are talking all at once.
It was noted that structured interaction among participants
is required to ensure meaningful exchange.
The Honorable Clifton
A. "Chip" Woodrum, Chairman
Staff contact: Maria