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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-05-15
June
10, 2015
Ray
Gregory
Norfolk, 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 messages dated April
9 and 16, 2015, and our telephone conversation April
15, 2015.
Dear
Mr. Gregory:
You have asked whether the minutes of a meeting of
the Planning Commission (the Commission) of the City
of Norfolk (the City) were sufficient to satisfy the
requirements of the Virginia Freedom of Information
Act (FOIA). You stated that the Commission met on
February 13, 2014 to discuss whether the Commission
should allow a design change you requested for a house
under construction. At that meeting, one commissioner
made comments against allowing the design change to
your house that you felt were unprofessional and prejudicial.
You indicated that at the meeting you refuted what
you felt were misrepresentations made by the commissioner.
Afterward, you requested a transcript of the meeting.
You were informed that no transcript existed, but
you were given meeting minutes after they had been
prepared. You stated that the minutes did not include
the commissioner's comments at issue or your reply
to those comments. You further stated that you complained
about the incompleteness of the minutes and a City
representative responded that minutes focus on the
motions and votes, not the full discussion. However,
you wrote that you felt the commissioner's comments
and your own should have been included as they concerned
the matter at hand before the Commission. You also
pointed out that the other commissioners' comments
were included. Further, you stated you later were
told by a Deputy City Attorney that a stenographer
records the meetings, but that the record "does
not capture every word spoken, but rather records
enough information to memorialize the actions of the
board." However, you observed that the minutes
contain detailed comments made by your architect,
your wife, and all of the commissioners except the
one commissioner's negative comments and your reply.
You indicated you believe the stenographer did indeed
record the commissioner's negative comments and your
reply, but those comments were not included in the
minutes and have since been destroyed. You further
assert that because you complained to the City Council
about this matter, "the City should have preserved
the record of these comments as evidence. The fact
that these comments have apparently been destroyed
appears to me to be a cover up" and in your opinion,
therefore, a violation of FOIA.
The policy of FOIA stated in subsection B of §
2.2-3700 is to ensure free entry to meetings of
public bodies wherein the business of the people is
being conducted. The definition of public
body in § 2.2-3701 includes planning
commissions. Therefore there is no doubt that
the Commission is subject to FOIA and the meeting
in question is required to comply with FOIA. You have
not alleged that the meeting was not open to the public
or that it was improperly noticed, so we will focus
solely on the minutes requirements. Subsection I of
§ 2.2-3707 provides in relevant part as follows:
Minutes
shall be recorded at all open meetings....
Minutes,
including draft minutes, and all other records of
open meetings, including audio or audio/visual records
shall be deemed public records and subject to the
provisions of this chapter.
Minutes
shall be in writing and shall include (i) the date,
time, and location of the meeting; (ii) the members
of the public body recorded as present and absent;
and (iii) a summary of the discussion on matters
proposed, deliberated or decided, and a record of
any votes taken.
This
office has considered the requirement to include
a summary of the discussion on matters proposed, deliberated
or decided, and a record of any votes taken in
a prior opinion.1 Noting that summary
is not defined in FOIA, we turned to the common usage
in the absence of a statutory definition. Merriam-Webster
Online defines a summary as an abstract, abridgment,
or compendium especially of a preceding discourse.2
The American Heritage Dictionary defines a summary
as a condensation of the substance of a larger
work; abstract; abridgment.3 Following
these definitions and prior opinions of the Office
of the Attorney General (OAG), we opined that any
matter that was proposed, deliberated or decided
should be addressed in the meeting minutes in summary
form. The opinion elaborated that any matter that
is the subject of a motion or vote is a matter that
is proposed, deliberated or decided by the public
body (regardless of the outcome of the motion or vote)
and therefore is required to be contained in the meeting
minutes. Public bodies take action by motion and by
vote; any matter moved before the public body is a
matter that has been proposed before that
body, even if the motion fails for lack of a second.
FOIA explicitly requires that minutes must contain
a record of any votes taken. Similarly, if
there is an agenda for a meeting, any item on that
agenda would be considered one that has been proposed,
even if consideration of that item is deferred until
a later date. Therefore public bodies should always
include in meeting minutes a summary of any matter
that appears on the agenda for that meeting, in addition
to any matters that are the subject of a motion or
vote.4
You have correctly pointed out that the situation
you presented may be distinguished from the prior
opinion in that the matter in question was an agenda
item and portions of the discussion were included
in the meeting minutes. There is no allegation that
the Commission failed to include mention of an agenda
item, a motion, or a vote. The issue you present is
instead a question of discretion: in writing meeting
minutes, can a public body choose to include some
comments about a matter in detail while excluding
others? Our prior opinion addressed this question
briefly in stating that FOIA does not require a verbatim
transcript of every word spoken at a meeting, nor
that every detail of a discussion be mentioned in
meeting minutes.5 In the prior opinion
we referred to an earlier opinion of the Attorney
General that considered the minutes requirements specific
to a board of supervisors under former Code §
15.1-543 which was informative, but not dispositive
of the FOIA question. In light of your inquiry it
may be helpful to quote that OAG opinion more fully:
"....The
term 'minutes' as used in this section means a brief
summary of what the Board has considered at the
meeting. Of course, all resolutions and ordinances
must be transcribed in full. I believe that the
minutes should contain all questions of a public
nature which have been discussed and considered
by the Board, even though a determination of such
questions may have been deferred instead of being
voted upon. The word 'complete' as used in this
section does not, in my opinion, mean that a stenographic
record of the proceedings is required. While the
Board is the judge of what it shall have included
in the minutes, I do not feel that their judgment
should be exercised in such manner as to exclude
therefrom any question of official nature that has
been considered by the Board."
In
light of the above-quoted language, I conclude that
the Board's minutes must include, as a minimum,
a brief summary of the matters considered by the
Board. Supporting documents, which are presented
to the Board for background, may be included as
a part of the minutes, filed with the official minutes,
or excluded therefrom, at the discretion of the
Board.6
Applying
the same reasoning, it is again clear that a verbatim
transcript or full stenographic record of every comment
made is not required under FOIA. A public body has
discretion to decide what comments to include or exclude
from its minutes, so long as all matters that are
proposed, deliberated, or decided, and all motions
made and votes taken, are properly summarized in the
minutes. The minutes you provided appear to consist
of about three pages reflecting the discussion of
changes to a previously approved certificate of appropriateness
regarding your property. The minutes reflect the discussion
of specific design issues, opinions of neighbors,
and various other concerns that concluded with a motion
made and seconded to continue the application for
two weeks. The comments that were included appear
to be fairly detailed, but they are not quotes. It
is not clear whether the only comments excluded were
those of interest to you, or whether other comments
were excluded as well. You indicated that the comments
of all the other commissioners were included, but
there is no way to tell if all of their comments were
included in their entirety, or whether instead the
minutes reflect a selective summary of those other
commissioner's comments. As the minutes are not a
transcript, it is presumable that some commentary
was excluded in the process of creating the summary.
In other words, it appears that discussion of the
matter at issue was set forth in some detail, but
that certain comments about the matter that you wished
to see included were omitted. There is no doubt that
the matter itself was addressed, as it appears to
be the only topic of the meeting in the minutes you
provided. The exact level of detail to include in
summary minutes, as previously opined by both this
office and the Attorney General, remains a matter
of discretion left to each public body. The exclusion
of some commentary does not appear to be a violation
of FOIA when the minutes otherwise are a summary
of the discussion on matters proposed, deliberated
or decided.7
However, you made five points asserting that the exclusion
of the negative comments and your reply was an improper
use of discretion. The first two points will be addressed
together. First, you stated that you complained in
writing about the matter to the City Council and therefore
"surely someone among them would have looked
into the matter to determine whether there was any
substance to my complaint." Second, you observed
that no one on City Council responded to your complaint,
and ask if the "complaint had been found to be
groundless, would the City Council have remained silent?"
On these two points, note that the minutes in question
are the minutes of a Commission meeting, not a City
Council meeting. For purposes of this opinion, the
City Council's reaction to your complaint, or lack
thereof, would only matter if the City Council exercised
some direct authority to control the contents of the
Commission's meeting minutes. That does not appear
to be the case. Therefore what the City Council did
or did not do in response to your complaint is not
relevant to the outcome of this opinion.
We now consider your third, fourth and fifth points
together. Your third point is that the comments of
all the other planning commissioners appear in the
minutes in detail. You ask whether it is "glaringly
questionable that the comments of one commissioner
would be missing?" Perhaps it is questionable,
but as explained above, excluding some comments while
including others appears to be within the discretion
granted to a public body. FOIA does not set forth
any specific limits on that discretion, other than
to require that minutes include a summary of the
discussion on matters proposed, deliberated or decided,
and a record of any votes taken. So long as such
matters are summarized, then the minutes would appear
to be sufficient. Fourth, you stated that the commissioner
who made the excluded comments has acknowledged in
a subsequent email that she had commented at the meeting.
Again, merely because comments were made does not
mean they must be included in the minutes, as the
public body only has to include a summary, not a transcript.
Fifth, you ask whether it is "not the case that
the only proper grounds for striking the comments
of a commissioner from the minutes would be if those
comments were not relevant to the matter at hand?"
The answer is clearly no, those would not be the only
proper grounds for omitting comments. In fact, the
most common reason comments are excluded in my experience
is simply for the sake of brevity. As defined above,
summary minutes are an abstract, an abridgement, a
condensation of the substance of what happened at
a meeting. A summary by definition is something shorter
than a full transcript, something which includes salient
points but of necessity will not include every comment
- or necessarily even every relevant comment - made
at a meeting. While we generally encourage public
bodies to include mention of each person who spoke
at a meeting and the gist of their comments as a matter
of best practices, we cannot say it is outside the
discretion of the public body to exclude some comments
when the legal requirement is only to provide a summary
of the discussion on matters proposed, deliberated
or decided, and a record of any votes taken.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1See
Freedom of Information Advisory Opinion 01 (2006).
2Definition available at http://www.m-w.com/cgi-bin/dictionary
(last accessed February 15, 2006).
3The American Heritage Dictionary 1218 (2d
College ed. 1982).
4Freedom of Information Advisory Opinion
01 (2006). Note that this prior opinion also addressed
whether to include in meeting minutes the discussion
of other matters that were not agenda items and not
the subject of any motion or vote. As the matter at
issue in the facts you present was an agenda item, that
portion of the prior opinion is not relevant for purposes
of today's opinion.
5Id.
61977-1978 Op. Atty. Gen. Va. 39 (quoting
1959-1960 Op. Atty. Gen. Va. 77)(note that at the time
these opinions were issued by OAG, FOIA did not contain
any requirements for the contents of meeting minutes.
The current requirements for meeting minutes were enacted
in 2004 (2004 Acts of Assembly, c. 730)).
7Note that generally as a matter of parliamentary
procedure public bodies approve their own minutes and
that is the check on the accuracy and completeness of
the minutes. Members usually have the opportunity to
object or suggest changes if they feel the minutes are
inaccurate, incomplete, or otherwise deficient. In this
instance it is not clear whether the minutes provided
are final approved minutes or not. However, once minutes
are approved by the public body, that approval represents
tacit agreement by the members that the minutes accurately
summarize what happened at the meeting. |