VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-19-04

August 31 , 2004

Mr. Robin Lind
Goochland, 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 May 17, 2004, and telephone conversation of May 20, 2004.

Dear Mr. Lind:

You have asked a question concerning the application of the Virginia Freedom of Information Act (FOIA) to emails between members of an electoral board.

Pursuant to § 24.2-106 of the Code of Virginia, every locality in the Commonwealth has a three-member electoral board to administer and oversee the locality's elections. The electoral board is a public body, and § 24.2-107 explicitly states that meetings of local electoral boards are subject to the provisions of FOIA. FOIA defines a meeting at § 2.2-3701 as work sessions, when sitting physically, or through telephonic 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. Because the electoral board is comprised of only three members, a gathering of two members of the board constitutes a quorum, and thus a discussion of public business between two members of an electoral board would be a meeting under FOIA.

In light of this definition of a meeting, you ask if the exchange of emails between two members of the electoral board would constitute a meeting under FOIA. You indicate that last year, when you served as chairman of the Goochland Electoral Board, you directed that all emails between members of the board be copied to the local registrar for her to keep on file and open to public inspection. However, you now ask if in addition to being a public record, the use of the email constitutes a meeting that should be noticed under FOIA.

The Supreme Court of Virginia recently had the opportunity to address the use of email under FOIA and to determine whether use of email between members of a public body might be subject to the meeting provisions of FOIA.¹ The Court held that use of email did not constitute a meeting, because the definition of a "meeting" under FOIA entails a degree of simultaneity. The Court found that email was more akin to traditional forms of written correspondence, such as a letter or a facsimile, and that there may be a significant delay between the time an email communication is sent and received and when a response is sent. It is important to note that the Court stopped short of saying that use of email could never be a meeting under FOIA. The dispositive determination in examining email under the meeting provisions of FOIA is to examine how the email was used. Members of public bodies need not refrain from using email in a manner that is the equivalent of sending a letter; however, members of public bodies should be cautioned against using email in a manner that appears to entail simultaneity.

In conclusion, members of a local electoral board are not violating FOIA by using email to communicate with one another. As you noted in your question, however, emails relating to the transaction of public business are public records subject to access under FOIA. Therefore, while not mandated by FOIA, it is a good idea to continue to implement a system such as the one you have described where all emails are copied to the registrar and kept on file for public inspection. Furthermore, from a public relations standpoint, it is important to remember that the policy of FOIA at subsection B of § 2.2-3700 is to afford every opportunity to citizens to witness the operations of government. Members of public bodies are advised to keep this policy in mind when deciding to use email to communicate with one another concerning substantive matters.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹See Beck v. Shelton, No. 030723 (March 5, 2004).