VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-08-07

July 11, 2007

Sandra Hart-Davenport
Damascus, 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 electronic mail of June 12, 2007.

Dear Ms. Hart-Davenport:

You have asked several questions about a meeting of the Finance, Budget and Administration Committee (the Committee) of the Town Council for the Town of Damascus held on Wednesday, May 30, 2007. As background, you related that the Committee holds its regular meetings on the third Wednesday of each month. You stated that this particular meeting was held on the fifth Wednesday of the month, without any public notice being provided. You indicated that the Town Clerk and the Mayor confirmed that no notice of this meeting had been posted. You stated that in addition to the three members of the Committee, who are also members of the Town Council, several other persons were present: two other Town Council members, the Mayor, and the Town Attorney. Furthermore, you stated that the meeting was held behind locked doors, guarded by a police officer. The purpose of the meeting was to interview prospective candidates for the vacant position of Town Treasurer. You stated that the position had been vacant for three weeks prior to the meeting, and that the meeting therefore was not an emergency. You included minutes of the meeting that indicate that the Committee moved to enter closed session for the purpose of consideration and interview of prospective candidates for the office of Town Treasurer per Virginia Code Section 2.2-3711(A)(1), and that the closed session was certified after the Committee reconvened in open meeting. According to the minutes both the motion to convene the closed meeting and the motion to certify carried unanimously. Further facts will be provided as appropriate hereafter.

As an initial matter, it is understood that the Committee in question is a committee of the Town Council that performs a delegated function of the Town Council, advises the Town Council, or both. As such, the Committee is a public body subject to the Virginia Freedom of Information Act (FOIA), as defined in § 2.2-3701. That definition includes 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.

Your first three questions address different aspects of the notice requirements for public meetings held pursuant to FOIA. Noting that the Committee met on a Wednesday, but not their regularly scheduled Wednesday, and that no public notice was given, you ask whether this meeting was held in violation of FOIA. You also asked where notice should be posted, and how many days in advance the notice should be posted. Subsections C through E of § 2.2-3707 provide the public notice requirements for regular, special, and emergency meetings of public bodies, as well as the requirements for providing notice directly to individuals who request such notification. You stated that the meeting in question was not a regularly scheduled meeting, nor was it an emergency meeting; therefore it must be considered a special meeting for FOIA purposes.

The relevant general notice requirements for meetings of public bodies are set forth in subsection C of § 2.2-3707 as follows:

Every 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 that has no clerk, in the office of the chief administrator....Publication of meeting notices by electronic means by [local and regional] public bodies shall be encouraged. The notice shall be posted at least three working days prior to the meeting.¹

Also relevant in this situation, subsection D of § 2.2-3707 provides that [n]otice, reasonable under the circumstance, of special or emergency meetings shall be given contemporaneously with the notice provided members of the public body conducting the meeting. Because the meeting at issue was a special meeting, subsections C and D must be read together to determine the applicable notice requirements. Your first question asked whether this meeting was held in violation of FOIA, given that no notice was provided. If no notice was given, then the notice requirements of FOIA as set forth in these subsections clearly could not have been satisfied, and therefore this lack of notice was a violation of the procedure mandated by FOIA.

Addressing your question concerning where notices should have been posted, the Committee should have posted notice of the meeting in a prominent public location at which notices are regularly posted and in the office of the clerk [or chief administrator] of the public body. In practical terms, these requirements may be satisfied by posting one notice on a bulletin board or other posting facility in a public area of the town hall or other public location where the Committee meets, and posting the second notice in the office of the Committee's clerk or chief administrator. Because the Committee is a local public body, posting additional notice by electronic means - typically such as on a website, or through local television or radio advertisement - is not required, but it is encouraged.

Your next question concerned when the notice should have been posted. The general rule is that notice of a public meeting should be posted three working days prior to the meeting, as set forth in subsection C. The three working days do not include weekends or legal holidays, and the day of the meeting should not be counted as one of the three working days. Because this meeting was a special meeting rather than a regular meeting, subsection D modifies this general rule, as quoted previously. The first requirement of subsection D is that all notices of special meetings be reasonable under the circumstance. A decision regarding whether any particular notice given was reasonable under the circumstance necessarily involves factual determinations that can only be made by a court. Generally speaking, public bodies should post notice at least three working days in advance of any meeting unless the particular factual circumstances surrounding a special or emergency meeting necessitate some shorter time period.² In this instance, notice reasonable under the circumstance was not given because no notice was provided at all. The second requirement of subsection D is that notice of a special meeting must always be given contemporaneously with the notice provided members of the public body. Therefore public notice of this special meeting should have been posted at the same time that notice was given to the members of the Committee. Again, given the fact that no notice was provided at all, this requirement could not have been satisfied.

As a final consideration regarding notice, if any person requested direct individual notice as set forth in subsection E of § 2.2-3707, then the Committee would also be required to provide notice of all meetings directly to each such person. Public bodies may choose to provide such notice by electronic means (e.g., electronic mail or telephone call) if there is no objection by the person requesting such notice. The facts presented did not indicate whether such direct individual notice had been requested. If it had been requested, then following subsection D of § 2.2-3707, such notice should have been provided contemporaneously with the notice provided members of the public body.

Your next question asks whether the minutes must disclose the presence of all Town Council members who were at the meeting, or only those members who are on the Committee. You pointed out that five of the six members of the Town Council (including the three Committee members), the Town Attorney, and the Mayor were all in attendance at the meeting, but the minutes only reflect the presence of the three Committee members. Subsection I of § 2.2-3707 provides generally that minutes shall be recorded at all open meetings and shall include...the members of the public body recorded as present and absent. Generally speaking, meeting minutes are required to record the presence and absence of persons who are members of the public body holding the meeting, not the presence of other persons (such as members of other public bodies, other officials, etc., who may be in attendance). Additionally, subsection I of § 2.2-3707 requires public bodies to record a summary of the discussion on matters proposed, deliberated or decided, and a record of any votes taken.³ In this context, public bodies generally do record the identities of other persons present who participate in the meeting (for example, noting in the minutes speakers who give presentations or citizens who offer public comment).

However, in exception to the general rule, subsection I of § 2.2-3707 also states that

minutes shall not be required to be taken at deliberations of ... study commissions or study committees, or any other committees or subcommittees appointed by the governing bodies or school boards of counties, cities and towns, except where the membership of any such commission, committee or subcommittee includes a majority of the governing body of the county, city or town or school board.

The Committee in question is a committee of the Town Council (the governing body of the locality) comprised of three out of the six Town Council members (less than a majority). Therefore, following the quoted exception, the Committee is not required to record minutes of its meetings.⁴

Your last question asks whether it is a violation of FOIA to lock the door to a meeting room prior to the start of a closed meeting. Subsection A of § 2.2-3707 requires that all meetings of public bodies be open unless properly closed pursuant to an exemption. Section 2.2-3701 defines a closed meeting as a meeting from which the public is excluded. Section 2.2-3712 sets forth the procedural requirements for holding such a closed meeting.⁵ While FOIA says nothing specific about locked doors, it is apparent in this context that a meeting held behind locked doors is one from which the public is excluded physically and therefore is a closed meeting by definition. If the procedure required to convene a closed meeting was not followed prior to locking the door, then the meeting was an improperly closed meeting that violated the procedural requirements of FOIA. In this context, you indicated that the door was locked at 6:00P.M., prior to the arrival of the Committee member listed in the meeting minutes as the member who seconded the motion to convene the closed meeting. Therefore it appears that the meeting was closed before the motion to close was made and approved, and that the meeting was closed in violation of the procedural requirements of FOIA.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹The notice requirements solely applicable to state public bodies have been excised from the quoted subsection.
²Note that an emergency is defined as an unforeseen circumstance rendering the notice required by this chapter impossible or impracticable and which circumstance requires immediate action by § 2.2-3701. An emergency meeting therefore will necessarily have less than the standard three working days notice, by definition.
³See Freedom of Information Advisory Opinion 01 (2006)(discussing minutes requirements).
⁴The facts presented herein do not indicate that the other Town Council members present at the Committee meeting were discussing or transacting public business. If they were, it is possible that the meeting was a de facto meeting of the Town Council. See Freedom of Information Advisory Opinion 02 (2006). If this was a de facto meeting of the Town Council, then minutes of the meeting - as a Town Council meeting - would have been required, and those minutes would have to reflect the presence or absence of each Town Council member.
⁵See, e.g., Freedom of Information Advisory Opinion 06 (2007)(discussing in detail the procedural requirements for closed meetings).