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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-02-02
March
1, 2002
Charles A. Landis
Onancock, 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 correspondence
of December 10, 2001, and our discussions during the weeks
of January 14 and January 21, 2002.
Dear Mr. Landis:
You have asked whether
a meeting that was held by a private organization and attended
by members of the Onancock Town Council constitutes a "meeting"
under the Virginia Freedom of Information Act (FOIA).
You have stated
that the Onancock Town Council scheduled a meeting to discuss
the proposed development of land owned by the town. You stated
that no public comment would be taken at the town council
meeting. Prior to the meeting of the town council, the Onancock
Preservation Group (OPG) held its own meeting in the town
council chambers.1 OPG, a private organization,
was created to focus on the preservation of historical properties
in Onancock. OPG advertised its meeting in the local newspaper,
which indicated that the purpose of the meeting was to discuss
the preservation of historical properties in the town. No
specific properties were mentioned in the advertisement. You
alleged that despite the general description of the advertisement,
OPG's real purpose was to make its position on such town-owned
properties known to the town council members that OPG hoped
would attend. You further allege that the mayor and at least
the council members in attendance learned of OPG's "political
action" agenda via a seven-page email sent to them prior to
the meeting. You stated that you did not receive the email
because you are not a member of OPG, nor did all of the council
members. You stated that the mayor was the past president
of OPG and at least one council member present was also a
member of OPG.
You stated that
minutes were taken of the OPG meeting and were distributed
to members of OPG. You also believe these minutes were distributed
to the members of the town council who attended the OPG meeting.
Finally, you state that you obtained a copy of these minutes.
The minutes revealed that the participation of members of
the town council was limited to asking clarifying questions
and included a comment by one council member that "private
groups such as this made better decisions than the Council."
1. Your first question
is whether the meeting of OPG, which included the attendance
of the mayor and two council members, is considered a "meeting"
under FOIA.
Section 2.2-3701
of the Code of Virginia defines a "meeting" as the 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. A "public body" includes any legislative
body; any authority, board, bureau, commission, district or
agency of the Commonwealth or of any political subdivision
of the Commonwealth, including cities, towns and counties;
municipal councils, governing bodies of counties, school boards
and planning commissions; boards of visitors of public institutions
of higher education; and other organizations, corporations
or agencies in the Commonwealth supported wholly or principally
by public funds. It shall include 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. Under FOIA, a meeting requires the gathering
of three or more members, or a quorum of less than three,
of a public body and the discussion or transaction
of public business (Emphasis added).
Clearly, OPG is
not one of the entities enumerated within the definition of
a public body. The information you presented also does not
indicate that OPG was created by the public body to either
perform a delegated function or advise the public body. Therefore,
by definition and the plain language of the statute, OPG's
meeting cannot be considered a meeting under FOIA because
OPG is not a public body.2
Subsection G of
§ 2.2-3707 permits 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... (Emphasis added).
Whether the three
members of the public body may gather at a private meeting
without the private meeting becoming a meeting under FOIA
hinges on whether the members of the public body "discussed"
or "transacted" public business and whether such gathering
was prearranged to discuss or transact public business. FOIA
does not define "the discussion or transaction of public business."3
Applying the statutory construction rules, in the absence
of a statutory definition, a term is considered to have its
ordinary meaning given the context in which it is used.4
The Webster New Collegiate Dictionary (1977) defines discuss
as "to investigate by reasoning or argument." The Attorney
General has opinioned that discussions of the public business
occurred when the physical gatherings were "for the purpose
of deliberating policy or preparing to take action."5
The information
you presented indicated that OPG conducted the meeting. As
you stated, OPG informed the members of the governing body
of its desire to obtain rights to the town land. The members
of the public body merely attended the meeting. They asked
clarifying questions. They did not debate any issues relating
to the proposed development of the town land. In fact, the
only comment made by one of the members of town council was
a statement that private organizations make better decisions
than the council. It appears that the council members received
information from OPG without actively participating in the
discussion. The council members did not deliberate public
policy, nor did they prepare to take any actions. Based upon
the facts you have presented, the council members did not
engage in discussions of public business.
FOIA does not govern
the meetings of private entities, nor does it limit the topics
that may be discussed in the presence of public officials.
Nothing in FOIA prohibits public officials from listening
to matters of public concern. To opine that a private meeting
would fit within the definition of a "meeting" under FOIA
because of the attendance of three public officials without
taking into account the public officials' participation in
the discussions, even when the topic relates to matters of
public concern, would virtually prohibit public officials
from attending any private event or meeting. Subsection G
of § 2.2-3707 indicates that the legislature did not intend
to prohibit members of a public body from attending private
events provided that public business is not discussed by such
members.
In summary, the
meeting held by OPG is not a meeting under FOIA because OPG
is not a public body. Three members of a public body may gather
at private meetings so long as they do not discuss or transact
public business. The members of the public body that attended
the private meeting did not discuss public business if they
did not actively participate in the discussion, even though
the topic of discussion was a matter of public concern.
2. Your second question
is whether the records of OPG, (i.e. agendas, minutes, etc.,)
are public records.
Based on the foregoing,
OPG is not a public body, therefore its records are not public
records under FOIA.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1
You stated that the town council chambers are commonly used
by many private organizations for meetings in your town.
2 AO-10-00
(December 12, 2000).
3 There
is clearly nothing in the information you presented that amounts
to any transaction of public business; therefore, it will
not be discussed.
4 Commonwealth
Department of Taxation v. Orange-Madison Coop. Farm Service,
220 Va. 655, 261 S.E. 2d 532 (1980); 1991 Op. Atty. Gen. Va.
413; 1986-87 Op. Atty. Gen. Va. 174; see generally Norman
J. Singer, Statutes and Statutory Construction, 6th ed., §
46:01.
5 1984-1985
Op. Atty. Gen. Va. 426.
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