|
|
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-13
March
20, 2013
Jeffrey
E. Fogel, Esquire
Charlottesville, Virginia
The staff of the Freedom of Information Advisory
Council is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based upon the
information presented in our telephone conversation
of January 28, 2013, and your letter of January 31,
2013. Additional information was provided by letter
dated February 6, 2013, from the Office of the General
Counsel of the University of Virginia.
Dear
Mr. Fogel:
You have asked whether the University of Virginia
(the University) Board of Visitors (the Board) violated
the Virginia Freedom of Information Act (FOIA) by
denying entry to a public meeting to certain students.
You stated that on November 8, 2012, the Board held
a public meeting that approximately twenty students
tried to attend. You stated that the students were
informed that only seven seats would be available
and no one would be permitted to stand in the audience.
You stated that this restriction was contrary to past
practice of the Board, which had previously allowed
audience members to stand. You also stated that the
official capacity for the room is 307, but according
to counsel for the university, there were only 104
chairs.1 You indicated that when the students
sought entry or an explanation why they could not
enter, they were threatened with expulsion and arrest.
Further, you related that the students were carrying
signs to express themselves, but were peaceful and
did not interfere with access to the building or other
activities in the building. You indicated that because
of the restricted access to the students, you do not
believe this meeting of the Board was truly open as
is required under FOIA.
The policy set forth in § 2.2-3700 clearly establishes
the proposition that all meetings covered by FOIA
must be open to the public unless they are closed
pursuant to a properly invoked legal exemption. Specifically,
pursuant to subsection B of that section
the
General Assembly ensures the people of the Commonwealth
... free entry to meetings of public bodies wherein
the business of the people is being conducted. The
affairs of government are not intended to be conducted
in an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken
at any level of government. Unless a public body
or its officers or employees specifically elect
to exercise an exemption provided by this chapter
or any other statute, every meeting shall be open
to the public .... All public records and meetings
shall be presumed open, unless an exemption is properly
invoked.
Section
§ 2.2-3701 defines open meeting to mean
a meeting at which the public may be present,
and defines closed meeting to mean a
meeting from which the public is excluded. Subsection
A of § 2.2-3707 provides that [a]ll meetings
of public bodies shall be open, except as provided
in §§ 2.2-3707.01 and 2.2-3711.2
You correctly observed that FOIA itself is silent
regarding logistical matters such as the size of meeting
rooms, how meeting rooms should be set up, whether
and what technologies should be available to facilitate
meeting presentations and participation (microphones,
projector screens, etc.). As a matter of best practices,
if a situation arises where more persons wish to attend
a public meeting than the meeting room can accommodate,
this office has recommended that whenever possible
the public body should move to a location that will
allow more people to attend, as well as to use whatever
technology is available to increase public access.
For example, some public bodies can set up overflow
rooms with closed circuit television monitors or broadcast
on a local cable channel or radio station. When such
measures are not available, and a meeting room simply
fills to capacity, the fact that other persons are
unable to attend would not be a FOIA violation because
the public body is not intentionally restricting public
access, it is just a consequence of physical limitations
of the space available.3
However, the situation you describe is one where there
was sufficient room for additional people to attend
the meeting, but those people were refused entry,
even though the meeting itself was not closed pursuant
to any exemption. Under these facts, the meeting was
open to some people, but closed to others. Therefore
it was a closed meeting to the extent that
some members of the public were excluded, despite
there being additional room capacity available. I
note that the meeting was also open in part, as some
members of the public were present. Pursuant to subsection
A of § 2.2-3712, a meeting may only be closed
when
the
public body proposing to convene such meeting has
taken an affirmative recorded vote in an open meeting
approving a motion that (i) identifies the subject
matter, (ii) states the purpose of the meeting and
(iii) makes specific reference to the applicable
exemption from open meeting requirements provided
in § 2.2-3707 or subsection A of § 2.2-3711.
It
appears that no such motion was made and no such vote
was taken. Thus, by excluding some members of the
public without a proper motion and vote, and without
any apparent logistical limitation, it appears under
the facts you have described that the Board violated
the FOIA principle of free entry to meetings of
public bodies wherein the business of the people is
being conducted and the statutory requirement
that [a]ll meetings of public bodies shall be
open, except as provided in §§ 2.2-3707.01
and 2.2-3711. Again, while FOIA is silent regarding
the logistics involved in holding public meetings,
because the University is now aware of the increased
interest in its meetings, the best practice is to
ensure a meeting location large enough to accommodate
all. The point is about openness and access to the
public; it is not about how many chairs are in a room,
it is about making sure there are enough chairs.
Finally, I note that you sent to the University's
Office of the General Counsel a courtesy copy of your
request for an opinion from this office. The General
Counsel replied to you by letter, and sent a courtesy
copy of that reply to this office. The facts related
in the General Counsel's reply described this situation
very differently, and those facts would likely lead
to a different conclusion of law. For example, the
General Counsel indicated that the meeting held in
the auditorium of the Harrison Institute would accommodate
twice as many chairs as the usual meeting location
in the Rotunda, the crowding of the students at the
doorway raised safety and fire hazard concerns, the
meeting was publicly streamed, and that the University
is already considering additional options such as
an overflow room. These alternative facts would lead
to the conclusion that the only limit imposed on public
access was the capacity of the room coupled with fire
and safety concerns, and that the University was already
taking steps to provide greater public access than
usual. However, this office is not a trier of fact;
only a court has the authority to resolve a factual
dispute.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1It appears that the meeting was
held in the auditorium of the Harrison Institute.
According to the University website, "The room
is equipped with chairs, round and rectangular tables,
projection screen, video/data projection system, wireless
network, and phone jacks. The auditorium can accommodate
up to 200 for a lecture and up to 120 for a seated
meal." (http://www2.lib.virginia.edu/harrison/Facilities.html,
last visited March 20, 2013.)
2Section
2.2-3707.01 concerns meetings of the General Assembly,
while § 2.2-3711 lists the purposes for which
closed meetings are allowed, among other provisions.
3Note that, hypothetically, if a public
body were to move from its regular meeting location
to a smaller room in order to avoid public scrutiny
on a controversial issue, for example, that would
be a violation of FOIA. |