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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-23-03
September
22, 2003
Ms. Betty
Ostergren
Mechanicsville, 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 August 20, 2003.
Dear
Ms. Ostergren:
You
have asked questions concerning a meeting of the Board of
Game and Inland Fisheries ("the Board") under the
Virginia Freedom of Information Act (FOIA).
You
indicate that you requested notice of all meetings of the
Board, and that you received the following notice via the
U.S. Mail:
Meeting
Notice
Board of Game and Inland Fisheries
4016 West Broad Street
Richmond, Virginia
August 20, 2003
Board
Chairman Hoffler will meet with the two recently appointed
members of the Board for an orientation session. This meeting
will not affect the already scheduled August 21, 2003 Board
of Game and Inland Fisheries meeting that will be held in
Richmond, beginning at 9:00 a.m.
Upon receiving this notice, you indicate that you inquired
as to a more specific location of the meeting, such as a room
number, as well as the time that the orientation meeting was
scheduled on August 20, 2003. You also asked if an agenda
was available for either of the meetings, whether agenda materials
would be made available for public inspection for the August
20 meeting, and whether public comment would be received at
either meeting. You indicate that you were directed to the
Commonwealth Calendar, which indicated that the August 20
meeting would convene at 12:00 p.m., but did not receive an
answer about whether public comment would be received. You
further indicate that you were told that there was no formal
agenda for the August 20 meeting, as it was just a new member
orientation. You indicate that when you attended the meeting,
an agenda was available and that you were provided with a
copy. You ask if the notice of the meeting was deficient under
FOIA.
Subsection
A of § 2.2-3707 of the Code of Virginia requires that
[a]ll meetings of public bodies be open, except as provided
in § 2.2-3711. Subsection C of § 2.2-3707 requires
that [e]very public body shall give notice of the date,
time, and location of its meetings and that [n]otices for
meetings of state public bodies on which there is at least
one member appointed by the Governor shall state whether or
not public comment will be received at the meeting and, if
so, the approximate point during the meeting when public comment
will be received. Subsection E of § 2.2-3707 states
that [a]ny person may annually file a written request for
notification with a public body…[t]he public body receiving
such request shall provide notice of all meetings directly
to each such person. Finally, while there is no requirement
that a public body create an agenda for a meeting, subsection
F of § 2.2-3707 requires that [a]t least one copy
of all agenda packets and, unless exempt, all materials furnished
to members of a public body for a meeting shall be made available
for public inspection at the same time such documents are
furnished to the members of the public body.
As noted
above, subsection C of § 2.2-3707 requires that a meeting
notice must contain the date, time and location of the meeting.
If any of these three elements are lacking from either the
notice posted generally or the notice provided directly to
individuals who request it, then notice of the meeting would
be insufficient. It appears that in this instance, you were
provided with the date and location of the August 20 meeting,
but not the time. In addition to the requirement to include
the date, time, and location on a meeting notice, if the Governor
appoints a member of the public body, a sufficient notice
must also indicate whether public comment will be received,
and at approximately what point during the meeting this will
occur.
You also
raise a question about the availability of an agenda in the
facts you provided. FOIA does not require that an agenda be
created for a meeting. Therefore, failure to provide you a
copy of the agenda when you requested it is not necessarily
a violation of the law if no such record existed at the time
of your request. It is possible that an agenda was created
after your request, in which case FOIA simply requires that
the agenda be available for public inspection at the same
time it was made available to the members of the public body.
FOIA does not, however, require a public body to honor a standing
request for records that do not currently exist, but may be
created at some later time.
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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