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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-06-19
August
6, 2019
Sara
Gregory
The Virginian Pilot
via electronic mail
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 dated May 30, 2019.
Dear Ms. Gregory:
You
have asked whether the conduct of certain meetings
of the Norfolk School Board (the Board) was in violation
of the Virginia Freedom of Information Act (FOIA)
due to the Board's failure to provide proper public
notice of certain Board meetings and to take minutes
during such meetings.
Factual
Background
In
your electronic mail, you described five situations
where you believe the Board may have violated the
meetings requirements of FOIA. In the first situation,
the Board held meetings during a two-day retreat from
January 3-4, 2019. There was no notice of this meeting
until January 2, 2019, and minutes were not taken
until after a reporter reminded the Board's clerk
that minutes were required. Second, at the January
retreat a reporter learned that another retreat was
held in October 2018, but no notice had been given
and no minutes were taken during this retreat. Third,
the Board held a joint meeting with the Norfolk Public
Library Board of Trustees (the Library Board) on February
19, 2019, but notice was provided only two hours before
the meeting and minutes were not taken. You related
that, when a reporter objected, the Board Chair said
the lack of notice, "was a complete oversight
on our part." Fourth, the Board met to evaluate
the superintendent on March 27, but gave no notice
of this meeting. You related that the Board Chair
later told a reporter that the Board voted to convene
a closed meeting for personnel reasons at the start
of this meeting and met for about two hours with the
Board's attorney in attendance. Fifth, notice of a
special meeting held on Wednesday, February 27, 2019,
was posted on Sunday, February 24, 2019, but taken
down on Tuesday, February 26, 2019. You further indicated
that editors and reporters from The Virginian Pilot
have had multiple conversations with Board members
and staff about these meetings and the requirements
of FOIA.
Applicable
Law and Analysis
The The policy of FOIA expressed in subsection B of
§ 2.2-3700 is to ensure "the people of the
Commonwealth . . . free entry to meetings of public
bodies wherein the business of the people is being
conducted." The policy continues to state that
"[u]nless 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." The policy further
directs that FOIA "shall be liberally construed
to promote an increased awareness by all persons of
governmental activities and afford every opportunity
to citizens to witness the operations of government."
FOIA defines "meeting" in § 2.2-3701
to include "meetings including work sessions,
when sitting physically, or through electronic communication
means pursuant to § 2.2-3708.2, 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."1
The requirements for posting notice
are set forth in subsections C through E of §
2.2-3707. Subsection C addresses notice of regularly
scheduled meetings; subsection D addresses notice
of special, emergency, or continued meetings; and
subsection E addresses individual requests for direct
notice, which is generally done by electronic mail
(but is not at issue for the purposes of this opinion,
as you presented no questions regarding direct notice).
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. 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. The first requirement of subsection
D is that all notices of special, emergency, or continued
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, emergency, or
continued meeting necessitate a shorter time period.
The second requirement of subsection D is that notice
of a special, emergency, or continued meeting must
always "be given contemporaneously with the notice
provided to members of the public body."2 Regarding
minutes, subsection H of § 2.2-3707 requires
that "[m]inutes shall be recorded at all open
meetings"3 and sets forth requirements for the
contents of minutes.
Considering
the first four situations you described, the facts
presented do not indicate whether these meetings were
part of the Board's regular schedule or were called
as special, emergency, or continued meetings. As it
is not clear which notice provision would apply to
these meetings, both circumstances will be addressed
below. For the fifth situation, you described the
meeting as a "specially called meeting"
and it will therefore be considered a special meeting
for the purposes of this opinion.
Situation
#1: January retreat
If the January retreat was a regularly
scheduled meeting, then notice would have been required
to be posted at least three working days prior to
the meeting. Notice posted only one day prior as you
described would be insufficient. On the other hand,
if this retreat was a meeting called outside of the
regular schedule, then the notice would have to be
"reasonable under the circumstance" and
posted "contemporaneously with the notice provided
to the members of the public body conducting the meeting."
As stated above, only a court may determine whether
notice was "reasonable under the circumstance."
In this instance, it is not clear what, if any, circumstance
may have prevented the Board from providing notice
the usual three working days in advance, nor have
any facts been presented regarding whether the notice
posted the day before the retreat was contemporaneous
with the notice given the Board members. In short,
if the January retreat was a regular meeting of the
Board, notice as you described was insufficient, but
if it was a special, emergency, or continued meeting,
then the facts presented do not provide enough information
to form an opinion.
Regarding
minutes, you indicated that staff informed you that
they generally did not take minutes at retreats because
retreats were considered "events," rather
than "meetings."4 However, staff did take
minutes of the January retreat after being reminded
of FOIA's requirement to do so. You did not present
any question or statement regarding the contents of
those minutes. Presuming the contents were in compliance
with FOIA, then taking minutes of the retreat was
the proper action as required under subsection H of
§ 2.2-3707.5
Situation
#2: October retreat
You
indicated that no notice was given and no minutes
were taken of the retreat held in October 2018. Presuming
this retreat was a meeting of the Board subject to
FOIA, it would not matter what type of meeting (regular,
special, etc.) it was, because both failing to post
notice and to take minutes of an open public meeting
would be violations of FOIA's requirements under §
2.2-3707.
Situation
#3: Joint meeting with the Library Board
This
situation is similar to the first situation in that
it is not clear whether this joint meeting was part
of the Board's regular schedule or another type of
meeting. However, in this instance you indicated the
reason the notice was posted only two hours before
the meeting was because it was an "oversight."
Notice posted two hours before a regular meeting clearly
would not meet the requirement to post three working
days prior to the meeting. If this joint meeting was
a special, emergency, or continued meeting, it is
likely that justifying posting notice only two hours
before the meeting as an "oversight" would
not be "reasonable under the circumstance,"
as there would appear to be no factual circumstance
that prevented notice from being posted earlier, only
an error on the part of the Board. However, as previously
stated, only a court can rule on whether a particular
notice was reasonable. As in situation #2, a failure
to take minutes of an open public meeting would be
a violation of FOIA.
Situation
#4: Evaluation of the Superintendent
You stated that the Board voted to
enter a closed meeting at the start of this meeting
and met for about two hours in a closed meeting, with
their attorney present, but that no notice was given
of the initial, public meeting. As stated above, a
total failure to provide notice of a public meeting
would be a violation of FOIA. Additionally, as previously
advised by this office, closed meetings must start
with a public meeting where the public body takes
an affirmative recorded vote approving a motion that
identifies the subject matter of the closed meeting,
the purpose of the closed meeting, and the applicable
exemption from the open meeting requirements.6 Note
also that, pursuant to subsection A of § 2.2-3710,
votes must be "taken at a meeting conducted in
accordance with the provisions of this chapter."
Public bodies should be aware that the Office of the
Attorney General has opined that in accordance with
this provision, a vote taken at a meeting that was
not properly noticed would be null and void.7
Situation
#5: Special meeting
Regarding
this meeting, you stated that notice was posted on
a Sunday, February 24 then removed on Tuesday, February
26 for a meeting that was held on Wednesday, February
27. I would first note that Sundays generally are
not working days and therefore do not count as such
for the purposes of providing notice.8 However, as
a special meeting, the notice for this meeting had
to be "reasonable under the circumstance"
and posted at the same time the members were notified.
Even if we consider the notice to have been posted
on Monday, February 25, that would still be two working
days before the Wednesday, February 27 meeting. As
the circumstance requiring this special meeting is
unknown, it is impossible to opine on whether the
Sunday, February 24 notice was posted sufficiently
prior to the meeting. FOIA does not address a situation
where a posted notice is removed prior to the stated
meeting date and such meeting is held anyway, nor
did research reveal any precedent on point. However,
as quoted above, FOIA is to "be liberally construed
to promote an increased awareness by all persons of
governmental activities and afford every opportunity
to citizens to witness the operations of government."
Considering the facts as you presented them, someone
who checked for notice on Sunday or Monday would have
been aware of the special meeting to be held on Wednesday,
but someone who checked on Tuesday or Wednesday would
not because the notice was removed. While there is
no specific provision addressing the removal of posted
notice prior to the stated meeting date, it would
likely violate the policy of FOIA to do so because
it would limit the awareness of governmental activities
and the ability of citizens to witness the operations
of government.
Thank
you for contacting this office. We hope that we have
been of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
Ashley
Binns
Staff Attorney
1Note
that the definition also includes certain exceptions,
none of which would apply under the facts you have
described.
2Freedom
of Information Advisory Opinion 06 (2017).
3The
subsection also includes certain exceptions to the
minutes requirements, but none of the exceptions would
apply under the facts that you have described.
4Note
that FOIA does not define the term “event.” FOIA defines
“meetings” and sets out certain procedural rules for
the conduct of meetings. For purposes of this opinion,
we are considering whether or not the gathering of
individuals constitutes a “meeting” under FOIA, not
whether it is considered an “event,” since that is
not a defined term under the statute.
5See,
e.g., Freedom of Information Advisory Opinion
08 (2007).
6Freedom
of
Information Advisory Opinion 04 (2018), n. 6.
7See
Op. Atty. Gen. Va. No. 08-114 (2009).
8See
Freedom of Information Advisory Opinion 06 (2017)
for discussion of "working days" in the
context of meeting notices.
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