AO-03-09

 May 8, 2009

Richard L. Lloyd
Charlottesville, 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 March 26, 2008 and our telephone conversations on April 16, 2009 and April 29, 2009.

 Dear Mr. Lloyd:

You have asked several questions concerning the Virginia Freedom of Information Act (FOIA) requirements for public meetings as applied to several different public bodies.  Particular facts applicable to each question are set forth separately below.

You first ask whether a task force established to advise several different governmental bodies is itself a public body subject to the requirements of FOIA.  You referred to the June 30, 2008 minutes of the Rivanna Water and Sewer Authority (RWSA) Board of Directors meeting to explain how this task force was created.  It appears that the respective chairs of the Board of Directors of RWSA, the Albemarle County Board of Supervisors (the Board), the Charlottesville City Council (the Council), and the Albemarle County Service Authority (ACSA) Board of Directors met at this meeting to determine the composition of the task force and scope of its activities.  It is my understanding that each chair was representing his respective public body in acting to create this task force.  The minutes indicate that the chairs decided the task force should be composed of representatives of 11 different interested organizations, including the four chairs themselves.¹ Each of the other organizations would nominate its own representative to be accepted by the chairs.  The task force was to consider various issues regarding the maintenance of the South Fork Rivanna Reservoir (SFRR), to hold at least one public hearing, and to report its findings to the four public bodies (the Board, the Council, RWSA, and ACSA) at a joint meeting in November.  Subsequent meeting minutes indicate that the four bodies did in fact hold a joint meeting November 25, 2008, and discussed recommendations of the task force, although the task force had not yet completed its work.  You indicated that the task force met in County office buildings and was supported by paid county and city employees, but otherwise reported no other expenses.

A public body is defined in § 2.2-3701 to include, among other things, other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds, 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.  In this instance, it appears that the task force receives the use of facilities and some staff support, but no facts were given that indicate that the task force actually receives any public funds.  It is presumed that the facilities were not purchased especially for the use of the task force, and that the employees' services were part of or in addition to their regular paid work.  As such, it would appear that while these are things of some value, that value is not readily quantifiable, nor is it support by public funds in the general sense of a budget appropriation or other governmental largesse, as previously considered by this office.² In short, nothing here indicates that the task force actually receives any public monies at all.  Therefore the task force does not appear to be an organization...supported wholly or principally by public funds.  However, it does appear that that the task force was created by the joint action of four other public bodies (the Board, Council, RWSA, and ACSA) with the express purpose of conducting a study and then jointly advising those four public bodies.  Although unusual in that it was created by four public bodies rather than one, the task force is still an entity...of the public [bodies] created to...advise the public [bodies].  As such, the answer to your question is yes, the task force appears to be a public body subject to FOIA. 

Next, you stated that the Rivanna River Basin Commission (the Commission) has held approximately a dozen meetings without ever posting public notice or an agenda.  You further indicated that you made a request of the chairperson of the Commission asking if notices or agendas had been posted and if so, where, but after a week you had received no response.  You were subsequently told that the notices and agendas were available at the Thomas Jefferson Planning District Commission (TJPDC) office.  You stated that when you went there, the staff present indicated they did not know anything about Commission notices, but did receive and post notices for the Nature Conservancy.³ You also indicated that while agenda packets were given to Commission members at Commission meetings, none were available for public inspection. 

Laws regarding the Commission are set forth in Chapter 5.6 (§ 62.1-69.45 et seq.) of Title 62.1 of the Code of Virginia.  Subsection A of § 62.1-69.46 provides that the Commission

The subsection goes on to set out the language to be used in said resolutions.  Turning again to the definitions section of FOIA, § 2.2-3701, a regional public body is defined to mean a unit of government organized as provided by law within defined boundaries, as determined by the General Assembly, whose members are appointed by the participating local governing bodies, and such unit includes two or more counties or cities.  Reading this definition in conjunction with the provisions of § 62.1-69.46 quoted above, it appears that the Commission is a regional public body subject to the provisions of FOIA. 

The requirements for posting notice of public meetings under FOIA are set forth in subsections C through E of § 2.2-3707.⁴  The facts you provided indicated that the Commission failed to post notice at all; if this is the case, then none of the notice requirements of FOIA could have been met.  Such a lack of proper notice of public meetings would be a violation of the requirements of FOIA.

Additionally, 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.  Following this provision, the failure to post an agenda in advance is not necessarily a FOIA violation, as agenda materials are only required to be made available when they are given to the members of the public body.  Note also that nothing in FOIA requires that a public body have an agenda or agenda materials at all; if there are none, then none need to be posted or made available.  However, in this case, you specifically stated that the Commission did give agenda packets to its members, but failed to provide a copy of its agenda materials for public inspection.  Such failure would be a violation of the procedure required by FOIA.

As background to your third question, you indicate that a representative of the Commission appeared at a meeting of the task force.  You stated that there was no mention of such attendance in the Commission's meeting minutes, and you are unsure that the Commission knew the representative would appear at the task force meeting.  You ask whether FOIA requires that private meetings where business is conducted be revealed to the public body and the public.  As previously stated, both the task force and the Commission are public bodies, and are required to give notice of their meetings as provided in FOIA.  Note also that the definition of meeting given in § 2.2-3701 requires the presence of as many as three members or...a quorum, if less than three, of the constituent membership.  Since you described this gathering as a task force meeting, it is presumed that three or more task force members were present.  The presence of a single Commission member, with or without the knowledge of the Commission as a whole, would not change the character of this meeting for FOIA purposes.  In other words, this task force meeting would not be considered a Commission meeting with only a single Commission member present.⁵ Generally, FOIA would not impose any requirements on the Commission with regard to a public meeting of another public body where only a single Commission member was present.  In this case, all of the FOIA requirements (open meeting, notice, minutes, etc.) would fall upon the task force as the public body conducting the meeting.

I note next that in presenting this question you used the term private meeting.  Subsection A of § 2.2-3707 mandates that all meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711.  FOIA does not use the term private meeting, but instead refers to a closed meeting, defined in § 2.2-3701 as a meeting from which the public is excluded.  The procedures governing closed meetings are set forth in §§ 2.2-3711 and 2.2-3712.  Reading these provisions together, a task force meeting should be noticed and open to the public, unless it is closed pursuant to an exemption in § 2.2-3711 cited in a motion approved by an affirmative recorded vote, as provided by subsection A of § 2.2-3712.  If a closed meeting is convened, then when it is concluded, the task force must reconvene in open meeting to certify the closed meeting, as provided by subsection D of § 2.2-3712.  The presence of a single representative of the Commission at the task force meeting does not change the requirements imposed on the task force in conducting a meeting pursuant to FOIA.  Note that the task force could convene a closed meeting and invite the Commission representative to participate, as subsection F of § 2.2-3712 allows a public body to permit nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting.  Therefore the task force could convene a public meeting after giving proper notice, could convene a closed meeting, and could invite the participation of a Commission member, all in accordance with the procedures set forth in FOIA.  However, it is unclear from the factual background presented whether the meeting in question was conducted in accordance with the procedure mandated by FOIA.  If a closed meeting were held without following the proper procedural requirements, that would be a violation of FOIA.

Next you indicate that the Commission chair was selected as a member of the task force before anyone else was.  Other Commission members were then also selected to be members of the task force.  In total, four Commission members (including the chair) are also members of the task force.  Your fourth and fifth questions revolve around these four members of both bodies.  Your fourth question asked whether they must notify the task force and the public that more than two members are present, and whether the failure to do so violates FOIA.  In examining the notice requirements, we must first consider again the definition of meeting provided in § 2.2-3701:

Consideration must also be given to subsection G of § 2.2-3707, which provides in relevant part that

As previously opined by this office, when reading these provisions together, we derive 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 assemblage, and (2) the purpose of discussing or transacting the public business of that public body by those members.⁶

In this instance, it appears that four members of the task force are also members of the Commission.  You described this gathering as a task force meeting, so it is presumed that the meeting was called with the intent to discuss or transact the public business of the task force.  The question then is whether they also discussed or transacted public business of the Commission.  If both task force and Commission business were discussed or transacted, then this gathering would be a meeting of both bodies.  The minutes you provided indicate that the task force was created to address various issues regarding the SFRR, particularly concerning maintenance dredging of the SFRR.  The purpose of the Commission is set forth by statute in § 62.1-69.46:

It would appear from these sources that the task force has a narrower scope of public business than the Commission, but it would be possible for the business of both bodies to overlap in regard to the SFRR, especially if both bodies discussed maintenance dredging issues.  As background to your fifth question, you stated that the Commission and the task force conduct what is essentially the same business.  You further indicated that the four task force members participated in the same business when they were assembled as the Commission.  If this is the case, and the matters discussed or transacted by these four members comprised the public business of both the task force and the Commission, then the meetings should have been noticed, and minutes taken, as meetings of both public bodies. As part of your fifth question, you again stated that when meeting as part of the Commission, no notice or agenda was posted, and asked whether this is also a FOIA violation.  As stated in response to earlier questions, notice must be provided for all public meetings as required by FOIA, and while agendas need not be posted in advance, agenda materials must be provided for public inspection at the same time such materials are provided to members of the public body.  A failure to comply with these procedural requirements would be a violation of FOIA.

Your question also raises the issue of notice given to the members of a public body, as opposed to notice given to the general public.  FOIA requires notice to be given to the public through postings as set forth in subsections C and D of § 2.2-3707.  Further, FOIA requires direct notice to be provided to those who request it, pursuant to subsection E of the same section.  However, FOIA does not specifically require that separate notice be provided to the members of a public body.  While it is not required by FOIA, it is common practice and common sense to notify the members of meetings of their respective public bodies, regardless of whether such notification is specifically required by law.  In the context of your question, the issue would appear to be whether other members of the public bodies must be notified when the four persons who are members of both bodies meet.  FOIA requires public notice, but does not require additional notice to be separately given to the members of a public body.  Therefore a failure to provide separate meeting notices to the members of either body would not be a FOIA violation.  However, such separate notices to the members might be required under other laws outside FOIA or rules adopted by the bodies.⁷

Lastly, you indicated that the Commission created an advisory board called the Technical Advisory Committee (the Committee).  You indicate that all members of the Commission were made members of the Committee.  You ask whether the Committee must post an agenda and publish notice for its meetings.  As previously quoted, the definition of public body 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.  The Committee therefore appears to be a public body of the Commission, created to advise the Commission.  As such, it must follow all of the same rules for conducting meetings as other public bodies, including posting notice and providing agenda materials for public inspection if such materials are provided to the members, as stated previously. 

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

Sincerely,

Maria J.K. Everett
Executive Director