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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-46-01
October
5, 2001
Mr. Anthony Kimery
Culpeper, 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 email
of September 4, 2001.
Dear Mr. Kimery:
You have asked a
question concerning informal meetings conducted by members
of the Culpeper Board of Supervisors ("the Board") under the
Virginia Freedom of Information Act (FOIA). You included an
article from a local paper, The Freelance Star, with
your inquiry that detailed a meeting that took place between
the county Communications Director and three members of the
Board. The article indicates that the discussion involved
the county's plans to build telecommunications towers. A fourth
member of the Board found out about the meeting, and accused
the three of conducting an improper meeting under FOIA. In
a subsequent letter to the editor in The Freelance Star,
another member of the Board characterized the meeting as "an
unofficial meeting, not a 'secret meeting'." The member said
that a formal, noticed meeting had been held, but after that
meeting adjourned members still present in the county building
continued their discussions. The letter also stated that other
members of the Board had been involved in similar informal
discussions after other meetings, where "people were coming
and going" and they "talked to staff." You ask whether the
gatherings outlined in both the article and the letter constitute
improper meetings under FOIA.
Section 2.2-3701
of the Code of Virginia defines a meeting as meetings including
work sessions, when sitting physically, or through telephonic
or video equipment pursuant to § 2.2-3708 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. The
gathering of employees of a public body shall not be deemed
a "meeting" subject to the provisions of this chapter.
(Emphasis added). Section 2.2 - 3707 requires that all meetings
of a public body be open to the public, notice be given, and
minutes be taken.
The situations presented
in both the article and the letter are clearly informal, and
perhaps impromptu, gatherings of three or more Board members.
Under FOIA, even these informal gatherings when public business
is discussed constitute a meeting, and thus the procedures
set forth in FOIA must be followed. It makes no difference
that these informal meetings took place immediately following
an open meeting. If that open meeting was adjourned, and the
press and public had departed, then any further discussion
of public business amongst three or more members of the Board
would be prohibited by FOIA.
The letter to editor
mentioned that often these informal meetings involve discussions
with staff members. The definition of a meeting clearly states
that the gathering of employees of a public body does not
constitute a meeting under FOIA. That means that when the
staff of the public body gathers, it need not give notice,
take minutes, or open the discussion to the public. And, in
following the definition of a meeting set forth in FOIA, if
one or two members of the Board stopped to discuss public
business with a staff member, this gathering would likewise
not be meeting for the purposes of FOIA. However, once three
or more members of the Board gather to discuss public
business, even if it is to discuss the business with a member
of the staff, the gathering falls under the definition of
a meeting and invokes the FOIA requirements.
The letter to the
editor that you presented also makes mention of situations
where members of the Board are invited to a function, such
as a dinner, where three or more members of the Board are
gathered. The author of the letter asserts that FOIA pertains
to such situations, and that any time three or more members
of the Board are gathered the public would need to be given
notice. However, Subsection G of § 2.2-3707 contemplates this
situation and states that FOIA shall not be construed to
prohibit the gathering or attendance of two or more members
of a public body (i) at any place or function where no part
of the purpose of such 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.
Therefore, the procedural requirements for conducting a meeting
would not be invoked if three or more members attended a function
that was not arranged for the purpose of discussing or transacting
public business, so long as no public business is actually
discussed.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
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