VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-12-08

December 2, 2008

Ann Neil Cosby
Sands Anderson Marks & Miller
Richmond, 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 September 16, 2008.

Dear Ms. Cosby:

You have asked whether an individual member of a county Board of Supervisors (the Board) is a public body when he meets with staff and consultants after having been designated as a liaison by the Board. You further stated that Board liaisons are not delegated any authority to act by the Board, nor are they asked to advise the Board on any specific issues. You indicated that Board liaisons may meet with staff to be kept apprised of various issues, such as finance, recreation, public works and utilities, public safety, economic development, telecommunications, and education. You indicate that Board members frequently make contacts with County staff for such purposes, whether they are designated as liaisons or not. You indicate that Board members collecting such information may or may not share it with other Board members, but emphasize that even when acting as a liaison, Board members do not perform a delegated function on behalf of the Board and do not advise the Board.

Given this background, you ask whether an individual Board member designated as a liaison is a public body as defined in the Virginia Freedom of Information Act (FOIA). The definition of public body set forth in § 2.2-3701 includes governing bodies of counties as well as 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. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.¹ In this instance, you have indicated that a single Board member may be designated as a liaison to staff, but exercises no delegated function and does not advise the public body. Accepting that description as provided, a Board liaison cannot fit within the definition of public body set forth in § 2.2-3701, as he or she is not an entity of the public body created to perform delegated functions of the public body or to advise the public body.

However, for purposes of this opinion, we must presume that the Board's action in designating a member as a liaison necessarily implies that the member will be performing a delegated function or advising the Board. Otherwise there would appear to be no difference between a designated liaison and any other Board member meeting with staff, rendering the designation meaningless. Ordinary usage of the term liaison in this situation would mean a channel or means of communication.² Similarly, the term advise is not defined in FOIA, but in ordinary usage it has multiple meanings: 1. To offer advice to; counsel. 2. To recommend; suggest. 3. To inform; notify: advise a person of a decision.³ In this context, it would appear that a Board liaison might be delegated to inform and instruct staff or consultants regarding the Board's decisions, and to inform the Board regarding the corresponding actions taken by staff or consultants in return. Therefore the real question is whether an individual member of the Board, designated as a Board liaison to staff, may be considered a committee, subcommittee, or other entity of the Board. There does not appear to be prior legal precedent that answers this question. After considering the language of the statute, the relevant access issues, and the practical consequences of treating a single person as a public body under FOIA, we conclude that as a general rule, a single individual cannot, by oneself, constitute a public body as a committee, subcommittee, or other entity under FOIA.⁴

Turning first to the language of the statute, FOIA does not define the terms committee, subcommittee or other entity. In the absence of statutory definitions, we look to common usage for guidance. One definition of committee is a group of people officially delegated to perform a function, as investigating, considering, reporting, or acting on a matter.⁵ The dictionary notes that committee is used as a collective noun, which is defined as a noun that denotes a collection of persons or things regarded as a unit.⁶ The term subcommittee is defined as a subordinate committee composed of members appointed from the main committee.⁷ Similarly, the relevant definitions of body are a group of individuals regarded as an entity; corporation and a number of persons, concepts, or things regarded collectively; group: We walked out in a body.⁸ An entity in this context is something that exists as a particular and discrete unit: Persons and corporations are equivalent entities under the law.⁹ These definitions indicate that the typical usage of these terms is to describe entities comprised of multiple members, not single individuals.

Next, considering the relevant access issues, we must keep in mind the public policy of FOIA set forth in § 2.2-3701: to ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The policy statement illustrates that FOIA was created with two closely related but separate aspects, one addressing access to public records, and the other addressing access to public meetings. In considering whether or not a single Board member designated as a liaison can be considered a public body, we must therefore examine whether and how that designation will affect access both to public records and to public meetings.

The definition of public records set forth in § 2.2-3701 includes all writings and recordings...however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Following that definition, any records of a Board member concerning the transaction of public business as a Board member - including any records in the transaction of public business as a liaison between the Board and staff or consultants - would be public records subject to disclosure upon request, unless an exemption otherwise allows them to be withheld. Whether an individual Board member designated as a liaison may also be considered a public body will not change that result. Note that records prepared, owned, or possessed by staff in the transaction of public business are also captured within the definition of public records. In short, it appears that on the records side of FOIA, public access will remain unchanged regardless of whether the individual is considered only to be a Board member or also to comprise by himself a separate public body.

By contrast, the designation of an individual Board member as a public body would have profound effects under the law as it applies to meetings. FOIA defines meeting in § 2.2-3701 to include

the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708 or 2.2-3708.1, 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. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter.

In addition, subsection G of § 2.2-3707 describes situations that will not be considered meetings under FOIA:

Nothing in this chapter shall be construed to prohibit 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 or (ii) at a public forum, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting.

Reading these provisions together, we have derived that for a gathering to be a meeting subject to FOIA it must meet two threshold requirements: (1) the presence of three or more members, or a quorum, of a public body sitting as a body or informal assemblage, and (2) the purpose of discussing or transacting the public business of that public body by those members.¹⁰

In considering meetings, first note that any verbal report made by a liaison to the full Board would have to be made at a Board meeting held in accordance with FOIA (and any written report would be a public record). Regardless of whether the individual is considered a public body separately, the Board remains a public body and any meeting of the Board must be held in accordance with the requirements of FOIA. In this way, the public is ensured access to any verbal report made by the liaison to the Board. Additionally, the converse is also true: instructions and information provided by the Board to the designated liaison - and in fact, any designation of a member as a liaison - would have to be given by the Board at an open Board meeting held in accordance with FOIA.

Next, consider the effect on the individual outside the context of a Board meeting. Under most circumstances, the definition of meeting does not affect situations where only a single, individual member of a public body is present, since it only applies when three or more members, or a quorum, are gathered together to discuss or transact the public business of the body.¹¹ However, if an individual Board member by himself constitutes a public body, the analysis takes an entirely different tack. FOIA does not define the term quorum; in common usage, it is defined as the minimum number of officers and members of a committee or organization, usually a majority, who must be present for the valid transaction of business.¹² If an individual constitutes a public body, then as the sole member, he must also constitute a quorum of that body sufficient for the valid transaction of business. Therefore, following the definition of meeting as presented above, any time that individual discusses or transacts the public business as a liaison, it is a meeting. When considered in practical terms in light of the requirements for a meeting under FOIA, and taken to its logical extreme, treating an individual as a public body leads to absurd situations and impractical results.

First, any time a member who is also a public body discusses the business of the public body, it would be a meeting under FOIA. All such discussions would require that notice be posted in advance and that the location be open to the public, as set forth in § 2.2-3707.¹³ The member could not have impromptu conversations about liaison topics with anyone, whether it be other members of the Board, employees, consultants, relatives, constituents, or anyone else, without it being considered a meeting, since that member by himself forms the quorum of a public body. Any time the member attended a relevant gathering of employees - which are specifically excluded from the definition of meeting in FOIA - the member's presence would turn the gathering into a meeting subject to FOIA. As a practical matter, turning employee gatherings into meetings subject to the requirements of FOIA on a regular basis would impose an additional burden on the day-to-day work of the public employees involved. All interactions with the liaison would have be noticed in advance and held in a location open to the public. In final effect, designating a member a liaison - if it means treating him as a public body for meetings purposes under FOIA - would be a self-defeating act, as the designation itself would add these burdens making it impracticable for the staff to interact freely with a designated liaison.

These considerations beg a further question: because the individual is the quorum and can conduct public business by himself, if he thinks about his public business as a liaison, is it a closed meeting? Closed meeting is defined in § 2.2-3701 to be a meeting from which the public is excluded. Are the liaison's thoughts regarding public business matters therefore to be considered closed meetings because they are the deliberations of a public body from which the public is excluded? If so, must the liaison not then first convene an open meeting, then make a proper motion to convene a closed meeting as allowed under §§ 2.2-3711 and 2.2-3712, before even thinking about public business? It would appear to be the case, unless the liaison instead always thinks aloud in a public location after giving proper advance notice that he will be doing so. What if the individual decided to read a report or an article related to public business - must the public be invited to read over his shoulder? Must his thoughts be somehow broadcast as he thinks about what he reads, in order to avoid it being an improper closed meeting? If he decided to work at home at night to prepare a report for the Board, must he open his front door to anyone who cares to come in? Clearly such results are not the intent of FOIA - the law was not meant to force an elected official to always think out loud, or to open his home to all comers in the middle of the night.

The examples above, while extreme, serve to illustrate that the meetings provisions of FOIA were not designed to apply to individuals. Such an interpretation of the definition of public body, as including individuals for purposes of meetings, leads to absurd results, contrary to well-established rules of statutory interpretation.¹⁴ Rather than read the statute to include individuals as public bodies, which leads to these absurdities, the better construction is to apply the common usage of the terms body, committee, subcommittee, and entity as previously described. For purposes of meetings, a reasonable reading of the definition of public body means that it would include a group of individuals acting as a single unit, but not a single individual acting alone. Following this construction, the general rule is that an individual, even if exercising a delegated function or advising a public body, is not by himself a public body for meetings purposes under FOIA. There may be exceptions to the general rule depending on the particular facts involved in any given situation, but in most cases it is clear that FOIA intended to capture the deliberations of multiple persons when it addresses the meetings of public bodies, and single individuals simply do not fall within this ambit.¹⁵ The intent of FOIA is that deliberative bodies must deliberate in public. One reason to appoint a committee, subcommittee, or other entity is to enable deliberations among members with different points of view on a topic, rather than have a single person be the sole decider of an issue. Requiring that deliberations be held publicly makes sense when there is interaction among members, so that the public may see all of the input that went into whatever final decision is made by the committee.

In conclusion, applying the general rule to this specific instance, a Board member designated as a liaison to staff and consultants is not a public body as a committee, subcommittee, or other entity of the Board. Public access is still provided because the individual liaison's records in the transaction of public business are public records, and any interaction between the liaison and the Board must occur at a Board meeting subject to FOIA. Giving the statute this reasonable construction thus means the public will still have access to relevant records and Board meetings, but it will not pervasively invade the life of a single person by designating the individual a public body subject to FOIA. Having stated this general rule, please keep in mind that, as previously stated, a different set of facts might lead to an exception and a different conclusion, depending on the particular circumstances involved.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹The definition of public body also includes other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds, but you did not raise any issues regarding that aspect of the definition, so it need not be considered further in this opinion.
²American Heritage Dictionary 727 (2d College ed. 1982).
³Id. at 82.
⁴Note that at least one law outside FOIA, § 24.2-945.1, permits certain committees to be comprised of a single individual by definition. However, the committees defined in § 24.2-945.1 (such as political action committees and inaugural committees) serve political purposes related to elections and do not appear to be public bodies as defined in FOIA.
⁵American Heritage Dictionary at 298.
⁶Id. at 291.
⁷Id. at 1211.
⁸Id. at 193.
⁹Id. at 457.
¹⁰Freedom of Information Advisory Opinion 02 (2006).
¹¹To illustrate this point, note that the provisions of subsection G of § 2.2-3707, as quoted previously, address gatherings of two or more members of a public body. That subsection allows two or more members to gather at certain functions, without such gatherings being treated as meetings subject to FOIA. Yet subsection G does not state anything about the attendance of individual members of public bodies at such functions. The implication by that omission is that an individual alone does not trigger the requirements of a meeting in the first place, and so no exception is necessary to allow for the presence of an individual member at such a function.
¹²American Heritage Dictionary 1018 (2d College ed. 1982).
¹³If the individual is considered a public body as a committee or subcommittee appointed by the Board, but that public body does not contain a majority of the Board members, then minutes are not required to be taken, pursuant to clause (iv) of subdivision I of § 2.2-3707. If the background facts were different, minutes might also be required.
¹⁴Porter v. Commonwealth, 276 Va. 203, 230, 661 S.E.2d 415, 427 (2008)("The rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or absurd. On the contrary, it is well established that every act of the legislature should be read so as to give reasonable effect to every word.")
¹⁵One possible exception, for example, might be if a committee was created by statute comprised of multiple ex officio members, and a single person held all of the relevant offices. In this way, one person would become a committee by operation of law, even though the intent was to have multiple members.