 |
VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
|
AO-06-02
July
3, 2002
Priscilla Lehman
Winchester, 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 letter
of May 7, 2002, and our previous email dated April 25, 2002.
Dear Ms. Lehman:
You have asked whether
the meeting requested by a member of the Commonwealth Transportation
Board with three members of the Frederick County Board of
Supervisors was a meeting subject to the open meeting requirements
of the Virginia Freedom of Information Act (FOIA). Specifically,
by letter dated March 18, 2002, Ms. Olivia A. Welsh, a member
of the Commonwealth Transportation Board, requested a meeting
with the Frederick County Board of Supervisors (the Board)
concerning a decision made by the Board relating to the extension
of Route 37. In her letter, Ms. Welsh stated that she did
not intend the requested meeting to be a public meeting with
public input, that she expected all members of the Board to
be present, and that the press was welcome. In response to
this letter, a meeting was scheduled on March 27, 2002, in
the Board’s closed session conference room. You indicate that
on the day of the meeting, the location of the meeting was
moved to the Board’s regular meeting room. You indicate that
the Board gave no notice for this meeting or its change of
location, but that the local newspaper noted the change of
location in an article published on the day of the meeting.
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,
when three members of the Board gathered to discuss their
decision relating to Route 37 with Ms. Welch, even though
the meeting was arranged at her request, that gathering constituted
a meeting under FOIA. As a result, notice must be given in
accordance with the requirements of FOIA, the meeting must
be open to the public, and minutes must be taken of the meeting.
Subsection
C of § 2.2-3707 of the Code of Virginia states that [e]very
public body shall give notice of the date, time, and location
of its meetings by placing the notice in a prominent public
location at which notices are regularly posted and in the
office of the clerk of the public body, or in the case of
a public body which has no clerk, in the office of the chief
administrator. Publication of meeting notices by electronic
means shall be encouraged.1
Subsection
D of § 2.2-3707 addresses notice for special or emergency
meetings and requires that notice, reasonable under the circumstance,
must be given contemporaneously with the notice provided members
of the public body conducting the meeting.2
Regardless
of whether this was a regular or special meeting, FOIA requires
notice to be given in the manner discussed above.
The next requirement
under FOIA for a meeting is that it be open to the public.
It is important to note that the required notice is for the
benefit of the public and the media, and not for the media
alone. The underlying policy of FOIA as expressed in § 2.2-3700
provides that [b]y enacting this chapter, the General Assembly
ensures the people of the Commonwealth ready access to records
in the custody of public officials and free entry to meetings
of public bodies wherein the business of the people is being
conducted. The affairs of government are not intended to be
conducted in an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken at any
level of government.3 The provisions of FOIA
shall be liberally construed to promote an increased awareness
by all persons of governmental activities and afford every
opportunity to citizens to witness the operation of government.4
Therefore, FOIA contemplates public access that includes the
media and citizens, not one or the other.
Because you did
not ask about the taking of minutes, that requirement will
not be discussed in this opinion.
Your final question
concerns whether Board members may waive the notice required
by FOIA. You indicate that the county administrator sent a
memorandum to the Board members indicating that a waiver notice
would be prepared for Board members’ signature. There is a
provision found in § 15.2-1418 that allows Board members to
waive their notice of a special meeting. However, there
is no provision in FOIA that allows for the waiver of the
required notice to the public. As a result, notice of this
meeting was required to be given as discussed above and while
the Board may waive its notice; it cannot waive the notice
to the public required by FOIA.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1Va.
Code Ann. § 2.2-3707(C) (Michie 2002) (effective July 1, 2002).
2Va.
Code Ann. § 2.2-3707 (D) (Michie 2002) (effective July 1,
2002).
3Va.
Code Ann. § 2.2-3700 (Michie 2002) (effective July 1, 2002).
4Va.
Code Ann. § 2.2-3700 (Michie 2002) (effective July 1, 2002).
|