VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-40-01

August 23, 2001

Mr. Harry M. Lantz
Mountvale, 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 conversation of June 18, 2001.

Dear Mr. Lantz:

You have asked a question concerning the meetings of a public body under the Virginia Freedom of Information Act (FOIA). You indicate that prior to regularly scheduled meetings of your local board of supervisors ("the Board"), four or five members gather beforehand for discussions. When you try to attend these pre-meeting sessions, you state that the members tell you that you must leave. You ask generally what requirements FOIA imposes upon the Board relating to such behavior.

Section 2.1-341 of the Code of Virginia defines "meetings" as 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. Furthermore, the policy of FOIA found at § 2.1-340.1 states that FOIA ensures the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the public is being conducted. Subsection A of § 2.1-343 requires that all meetings of public bodies be open, unless specifically exempted by § 2.1-344.

As can be seen from the definition of a meeting, a gathering of four or five members of the Board falls under the definition of a meeting. If the members are discussing matters of public business, than such a gathering is not permitted under FOIA unless the proper procedures set forth at § 2.1-343 are followed; specifically, the meeting must be open to the public, proper notice must be given, and minutes must be recorded. Any gathering that falls under the definition of a meeting may only be closed to the public if the subject of discussion falls under one of the exemptions set forth in § 2.1-344. If the meeting is the proper subject of an exemption, then the procedures set forth at § 2.1-344.1 must be followed in order to convene in a proper closed session, including making a motion to go into closed session that identifies the purpose and subject of the closed session and provides the specific statutory exemption, and reconvening in open meeting to certify the proceedings.

Please note, however, that FOIA does allow members of a public body to gather and discuss issues not related to the public business without invoking the requirements of FOIA. Subsection G of § 2.1-343 states that [n]othing in [FOIA] shall be construed to prohibit the gathering or attendance of two or more members of a public body at any place or function where no part of the purpose of the gathering or attendance is the discussion or transaction of any public business, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body. Thus, it would not be a violation of FOIA for members of the Board to gather and discuss issues unrelated to the public business of the county prior to a Board meeting, and there would be no requirement that such a discussion be open to the public.

In conclusion, even an informal gathering of three or more members of a public body constitutes a meeting for the purposes of FOIA when public business is discussed. Such a gathering is prohibited by FOIA unless it is open to the public, notice is given, and minutes are taken, or properly closed pursuant to the procedures set forth for closed meetings at § 2.1-344.1.

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

Sincerely,

Maria J.K. Everett
Executive Director