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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-25
March
21, 2025
Ms.
Liz Albert
Norfolk, Virginia
Request received via email
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 email of April 25, 2024.
Dear
Ms. Albert:
You have asked whether an assemblage of three members
of a school board who met with a consultant at a conference
and discussed school division right-sizing efforts
with the consultant would be considered a "meeting"
under the Virginia Freedom of Information Act (§
2.2-3700 et seq. of the Code of Virginia) (FOIA).
Factual Background
As background information, you stated that you are
vice-president of a local civic league and a longtime
advocate for improved capital improvement of Norfolk
public schools and that in those roles, you have made
it a habit to regularly follow both the School Board
of the City of Norfolk (the School Board) and Norfolk
City Council meetings. You emailed this office with
concerns about how a segment of the School Board "appears
to have willfully violated the Virginia Freedom of
Information Act." You stated in your email that
the "School Board was recently in the midst of
budget deliberations" and that you had been following
the budget development by attending "the School
Board's retreat on March 1 to hear more about the
School Board's reaction to the Superintendent's February
7 budget presentation."
You stated in your email that at this retreat, "[a
School Board member] noted that while he and [another
School Board member and the School Board chair] were
attending a conference" sponsored by the Council
of the Great City Schools (CGCS)1 in October, "they
met with a Norfolk Public Schools' (NPS) facilities
consultant who was also in attendance." You also
stated that while at the conference, the three School
Board members "discussed school division right-sizing
efforts with the consultant." You wrote that
school right-sizing is "a topic that is emotionally
and politically volatile" as right-sizing "includes
the belief new high school attendance boundaries should
be drawn and a high school possibly closed."
Furthermore, you stated that "[a]ny discussion
of this nature needs to take place in public rather
than at a conference held in another state without
the benefit of all board members in attendance."
In the email, you wrote that "[d]uring the School
Board's budget deliberations an interesting political
debate unfolded around the [School Board chair's]
removal of a recommendation from the superintendent's
budget presentation that involved the high school
that would be the most likely candidate for closure
in any right-sizing initiative." You stated that
two of the three School Board members who attended
the conference "were involved in the removal
of that recommendation." You also wrote in your
email that a School Board member admitted to discussing
the removal of the right-sizing recommendation with
the School Board chair who then "directed the
superintendent to do so."
You stated that the School Board member "admitted
that was the case in a luncheon meeting" with
you and two associates "who had concerns that
the recommendation had been removed unilaterally without
the knowledge and vote of the entire School Board."
In your email, you stated that you and your two associates
believe that the other School Board member "was
also involved in the removal discussion, but has not
publicly admitted that was the case like [the School
Board member] and [the School Board chair] have."
You wrote in your email that to you and other citizens,
"this action appears to be an outgrowth of the
conversation that took place at the conference."
In a subsequent email, you wrote that you feel "that
the three [School] Board members in question will
pass this situation off as a passing commentary .
. . [b]ut from the conversation at the retreat and
what I have gathered to date indicates otherwise."
You also wrote that "a conversation with the
consultant would be key to determining the extent
of the [FOIA] violation." You further stated
that your "aim here is to put [the School] Board
members (and any other public official for that matter)
on notice that there is a segment of residents who
understand FOIA, are watching how they conduct business,
[and] are expecting integrity and will speak up when
a perceived violation occurs."
Analysis
FOIA policy, as stated in relative part in subsection
B of § 2.2-3700 of the Code of Virginia, provides:
By enacting this chapter, the General Assembly ensures
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 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 and all public records
shall be available for inspection and copying upon
request. All public records and meetings shall be
presumed open, unless an exemption is properly invoked.
The provisions of this chapter 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. Any exemption from public access
to records or meetings shall be narrowly construed
and no record shall be withheld or meeting closed
to the public unless specifically made exempt pursuant
to this chapter or other specific provision of law.
This chapter shall not be construed to discourage
the free discussion by government officials or employees
of public matters with the citizens of the Commonwealth.
A
general policy of FOIA is that citizens be provided
free entry to meetings of public bodies wherein the
business of the people is being conducted.2 FOIA ensures
that citizens are afforded every opportunity to monitor
government activities and witness the operations of
government. FOIA grants citizens such rights because
the affairs of government are not intended to be conducted
in secrecy but publicly. Hence, a fundamental principle
of FOIA is that all public meetings shall be presumed
open unless specifically made exempt pursuant to FOIA
or other specific provision of law.3
In
Gloss v Wheeler, the Supreme Court of Virginia
stated "[a]bsent proper invocation of a statutory
exception, 'every meeting shall be open to the public.'"4
The Supreme Court of Virginia declared that "[i]f
a gathering falls within [FOIA's] definition of a
'meeting[,]' it is then subject to the open meeting
requirements of Code § 2.2-3707."5 This office
has also acknowledged that "[g]enerally, meetings
of public bodies will need to be open unless a closed
meeting is authorized for a particular purpose under
§ 2.2-3711 [of the Code of Virginia]."6 Thus,
FOIA contains an inherent preference for government
meetings to be open to public observation as opposed
to being conducted privately behind closed doors.
Another principle of FOIA to be considered in our
analysis is "the narrow construction rule of
FOIA," which provides that exemptions shall be
interpreted as narrowly construed.7 The Supreme Court
of Virginia also recognized in Gloss this
specific statutory provision of FOIA that "'puts
the interpretative thumb on the scale in favor of'
open government."8 This office has previously
opined that "exemptions [to FOIA] must be 'narrowly
construed' in favor of disclosure."9 Accordingly,
"if there is a choice between an interpretation
of a FOIA provision that favors disclosure and one
that favors secrecy, this office must choose the interpretation
that favors disclosure."10 "Otherwise, if
there is no question of interpretation and the statutory
language at issue is clear and unambiguous, we follow
its plain meaning."11
For
purposes of FOIA, § 2.2-3701 of the Code of Virginia
defines "public body" in relative part as:
any legislative body, authority, board, bureau,
commission, district, or agency of the Commonwealth
or of any political subdivision of the Commonwealth,
including counties, cities, and towns, municipal
councils, governing bodies of counties, school boards,
and planning commissions; governing boards of public
institutions of higher education; and other organizations,
corporations, or agencies in the Commonwealth supported
wholly or principally by public funds. [emphasis
added].
"This definition explicitly includes school boards,
so there is no question that the school board is a
public body subject to FOIA."12
The
General Assembly recently amended the definition of
"meeting" or "meetings" in §
2.2-3701 of the Code of Virginia to mean:
meetings including work sessions, when sitting physically,
or through electronic communication means pursuant
to § 2.2-3708.2 or 2.2-3708.3, 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. Neither
the gathering of employees of a public body nor
the gathering or attendance of two or more members
of a public body (a) 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,
such gathering or attendance was not called or prearranged
with any purpose of discussing or transacting any
business of the public body, and no discussion or
transaction of public business takes place among
the members of the public body or (b) at a public
forum, informational gathering, candidate appearance,
meeting of another public body, or debate, the purpose
of which is to inform the electorate or to gather
information from the public and not to transact
public business or to hold discussions relating
to the transaction of public business, where no
discussion or transaction of public business takes
place among the members of the public body, even
though the performance of the members individually
or collectively in the conduct of public business
may be a topic of discussion, debate, or question
presented by others at such public meeting, shall
be deemed a "meeting" subject to the provisions
of this chapter. The appointment of more than two
members of a public body to another public body
does not constitute a meeting of the first public
body. For purposes of this definition of "meeting"
only, the term "public business" means
any activity a public body has undertaken or proposes
to undertake on behalf of the people it represents.13
This
amendment clarified the existing understanding that
"no discussion or transaction of public business"
may take place among the members of the public body
for gatherings and functions not to be considered
a meeting under FOIA.14 In addition, the amendment included
the provision "where no discussion or transaction
of public business takes place among the members of
the public body" for public forums, candidate
appearances, or debates.15 The amendment also added
"informational gathering" and "meeting
of another public body" to the list of permissible
gatherings that members of a public body could attend
without violating the provisions of FOIA as long as
discussion or transaction of public business does
not take place among the members.16 Finally, the amendment
defined "public business" to mean "any
activity a public body has undertaken or proposes
to undertake on behalf of the people it represents."17
Note that this new definition applies to meetings
but not to public records.
In prior advisory opinions, this office reasoned that
for a gathering to be considered a meeting subject
to FOIA:
[I]t
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. If
the minimum number of members is not assembled,
or there is no discussion or transaction of public
business, then the gathering is not a meeting subject
to the requirements of FOIA.18
Although
the definition of "meeting" in § 2.2-3701
of the Code of Virginia was recently amended, this
two-prong litmus test is still applicable in determining
whether a gathering may be considered a meeting under
FOIA. The occurrence of three or more members, or
a quorum, of a public body congregating together remains
the first element of the two threshold requirements
in determining whether a meeting occurs under FOIA.
The provisions of the amendment clarify that the second
element of the two threshold requirements in determining
whether a gathering is a meeting depends on whether
discussions or transactions of public business take
place between three or more members of a public body
during such gathering. The amendment clarifies that
the threshold issue in making such a determination
is not whether the members of a public body discuss
or transact public business with one or more third
parties, but instead whether the members discuss or
transact public business with each other. In other
words, the significant aspect to consider is whether
the discussion or transaction of public business occurs
among the three or more members (or a quorum of members
if less than three).
On several prior occasions, this office has contemplated
issues similarly presented herein. One such advisory
opinion addressed whether it constituted a meeting
under FOIA when five out of seven members of a town
council attended a planning commission meeting.19 That
opinion incorporated the Supreme Court of Virginia's
ruling in the case of Beck v. Shelton as
relevant to the analysis of information presented
to the FOIA Council in that request.20 In Beck,
a group of citizens held a gathering to promote adding
traffic controls at an intersection in the city; they
invited city council members to attend and three city
council members did so. The Supreme Court of Virginia,
in evaluating FOIA's policy in subsection B of §
2.2-3700 of the Code of Virginia, which "ensures
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 conducted"
but is not to "be construed to discourage the
free discussion by government officials or employees
of public matters with the citizens of the Commonwealth,"
determined that "the balance between these values
must be considered on a case-by-case basis according
to the facts presented."21 In Beck, "the
Supreme Court [of Virginia] upheld the trial court's
holding that a gathering called by citizens and attended
by three city council members was not a meeting subject
to FOIA" because the "gathering was a citizen-organized
'informational forum' and that no part of its purpose
was the discussion or transaction of any public business."22
"In Beck, the city council members in
attendance did not 'discuss anything with each other
as a group of three or otherwise.'"23 The Supreme
Court of Virginia held that "[t]he trial court
was not plainly wrong or without evidence to support
its judgment" based in part on the "undisputed
evidence at trial" that the "City Council
did not have any business pending before it on the
issue of traffic controls, nor was it likely to have
such matters come before it in the future."24
The
information you have submitted differs from that in
Beck where three city council members attended
a gathering called by citizens to consider "traffic
safety issues and the citizens' concern about the
lack of a stop sign at a particular intersection."25
Traffic safety was not an issue "before the City
Council or likely ever to come before it."26 The
evidence in Beck also demonstrated "that
the City Council members did not 'discuss anything
with each other as a group of three or otherwise.'"27
By contrast, you have indicated that the three School
Board members met up at a conference and discussed
public business, as such term is defined within the
definition of "meeting" in § 2.2-3701
of the Code of Virginia, among themselves and a consultant.
You have indicated that school right-sizing is an
issue the School Board is likely to undertake or propose
"to undertake on behalf of the people it represents."28
Thus, the activities of the three School Board members
at the conference as you have described them are dissimilar
from "[t]he factors in Beck that led
the Supreme Court to affirm the trial court's decision
that the Beck gathering was not a meeting
subject to FOIA."29
Your
depiction of the three School Board members attending
the same conference, congregating together, and discussing
public business (i.e., school right-sizing) is more
similar to the details considered in Advisory Opinion
02 (2006). In that advisory opinion, five members
of a town council attended a planning commission meeting
where one of the town council members in attendance
was also a member of the planning commission.30 The
information that was submitted to this office as part
of that FOIA inquiry denoted that all of the town
council members attending the planning commission
meeting engaged in discussions with the planning commissioners
and each other, including the town council member
who was also a planning commissioner, concerning the
promulgation of "a restrictive ordinance in a
historic area, a topic that had been previously considered
by the [Town] Council and was likely to come before
the [Town] Council again."31 Because "the
Town Council members at the Planning Commission meeting
participated in the discussions, interacted with each
other, and volunteered to work with the Planning Commission
regarding public business[,]" the previously
examined two threshold requirements were deemed as
having been met.32 Based on those circumstances, this
office determined that it appeared as though a joint
meeting of the planning commission and the town council
was held "that should have been noticed as such."33
It was further expressed in the opinion that the resulting
conclusion may have been different "if, for example,
the [Town] Council members had attended solely as
interested citizens, had not interacted with each
other as a group or assemblage, and had not discussed
public business of concern to the [Town] Council."34
The
situation you have presented also differs from that
previously considered by this office in Advisory Opinion
05 (2001).35 The issues in that advisory opinion involved
a school board member sitting in the audience of a
meeting of a committee formed by a board of supervisors
while two other school board members also attended
the meeting but as members of that committee. "36This
office concluded that that situation did not constitute
a 'meeting' of the school board subject to FOIA because
there was no discussion or transaction of school board
business."37 Although three school board members
attended the board of supervisors' committee meeting,
the first element of the two threshold requirements
for a meeting, the discussion or transaction of public
business did not occur.38 In comparing that situation
with the information you have described of the three
School Board members attending the same conference,
meeting together, and discussing public business (e.g.,
school right-sizing), the second element of the two
threshold requirements appears to have been met in
this instance.
In Advisory Opinion 03 (2014), this office considered
a matter involving a town council's members attending
meetings of committees to which the members were not
appointed but whose membership included other members
from the same town council.39 The guidance provided
by this office emphasized that "when the member
strays from merely observing to participating in the
discussion or transaction of public business, then
it turns the committee meeting into a meeting of the
[Town] Council."40 Furthermore, this office determined
that "[t]he critical element then is not the
mere presence of the [Town] Council member at a committee
meeting, but the [Town] Council member's participation
in the discussion or transaction of public business."41
Similarly, the simple presence of three members of
a public body at a conference does not necessarily
create a violation of FOIA. However, if three or more
members of a public body congregate together and subsequently
initiate discussions or begin to transact public business
among themselves, then it would violate FOIA if it
was not properly noticed, open to the public, and
otherwise conducted according to the meetings requirements
of FOIA.
Conclusion
As previously stated, for a gathering to be considered
a meeting under FOIA, it must meet the following two
threshold requirements: (i) the presence of three
or more members, or a quorum if a quorum is less than
three members, of a public body sitting as a body
or assemblage and (ii) the purpose of discussing or
transacting the public business of that public body
by those members.42 Therefore, if three or more members
of a public body gather together and do not discuss
or transact public business, as such term is defined
within the definition of "meeting" in §
2.2-3701 of the Code of Virginia (i.e., any activity
a public body has undertaken or proposes to undertake
on behalf of the people it represents), then it would
not be considered a meeting under FOIA. However, if
three or more members of a public body convene and
discuss or transact public business, then it would
be considered a meeting subject to the provisions
of FOIA.
As background information, you stated that three members
of the School Board attended a conference and while
at this conference, the three School Board members
gathered together and discussed school right-sizing
with a consultant, which is an issue likely to come
before the School Board. The critical information
in this scenario is that (a) three School Board members
gathered together and (b) the School Board members
discussed public business among themselves. The inclusion
of the consultant in their discussion is irrelevant
for determining whether the gathering is considered
a meeting under FOIA. The significant factors are
that three or more members of a public body gathered
together and participated in the discussion or transaction
of public business without complying with the requirements
of FOIA for a public meeting.
Thus, if the three School Board members held a meeting,
then all of the requirements for a meeting as provided
in § 2.2-3707 of the Code of Virginia must be
met in order for the meeting to comply with FOIA.
Posting notice of the meeting as set forth in subsection
D or E of § 2.2-3707 of the Code of Virginia
was required. In addition, FOIA, under § 2.2-3700
and subsection A of § 2.2-3707 of the Code of
Virginia, provides that all meetings are required
to be open for the public to attend freely except
when a meeting is properly closed as provided in §§
2.2-3707.01 and 2.2-3711 of the Code of Virginia.
Lastly, the recording and posting of minutes pursuant
to subsection I of § 2.2-3707 and § 2.2-3707.2
of the Code of Virginia was also required. The information
you have provided did not indicate that a notice was
properly posted, whether or not the public was able
to attend, or if minutes were recorded or posted.
Furthermore, all of the FOIA requirements (i.e., posting
of a notice, open meeting access, recording and posting
of minutes) would fall upon the School Board as the
public body responsible for conducting the meeting.
A failure to perform any of these requirements would
be a violation of FOIA's provisions for conducting
a public meeting.
Additionally, subsection G of § 2.2-3707 of the
Code of Virginia requires that "[a]t least one
copy of the proposed agenda and 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."
However, the failure to have a copy of a proposed
agenda and packets available for public inspection
in advance may not necessarily be a FOIA violation
because agendas and packets are only required to be
made available when they are given to the members
of the public body. FOIA does not explicitly require
that a public body prepare or have an agenda or materials
at all (although most public bodies do so as a matter
of tradition and best practices even when it is not
explicitly required). If there was no proposed agenda
or agenda packets, then none need be made available
to the public.
Thank
you for contacting this office. We hope that this
opinion is of assistance.
Sincerely,
Joseph
Underwood
Senior
Attorney
Alan
Gernhardt
Executive Director
1https://www.cgcs.org/whoweare
(noting: "The Council of the Great City
Schools (CGCS) brings together 78 of the nation's
largest urban public school systems in a coalition
dedicated to the improvement of education for children
in the inner cities. The Council and its member school
districts work to help our schoolchildren meet the
highest standards and become successful and productive
members of society. The Council keeps the nation's
lawmakers, the media, and the public informed about
the progress and problems in big-city schools. The
organization does this through legislation, communications,
research, and technical assistance.").
2See Freedom of Information Advisory
Opinion 03 (2014).
3See Va. Code §§ 2.2-3707(A),
2.2-3707.01, and 2.2-3711.
4Gloss v. Wheeler, 301 Va. 258,
279, 887 S.E.2d 11 (2023) (citing Va. Code §
2.2-3700(B)).
5Id. at 280.
6Freedom of Information Advisory Opinion
04 (2018) (noting: Even closed meetings must start
with an open 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.).
7See Freedom of Information Advisory
Opinions 02 (2023), 02 (2021), 04 (2020), 01 (2020),
04 (2019), 03 (2015), 06 (2013), and 01 (2013).
8Gloss at 279 (citing Fitzgerald
v. Loudoun Cnty. Sheriff's Off., 289 Va. 499,
505, 771 S.E.2d 858 (2015)).
9Freedom of Information Advisory Opinion
02 (2021) (citing Virginia Dep't of Corrections
v. Surovell, 290 Va. 255, 263, 776 S.E.2d 579,
583 (2015) (quoting Fitzgerald v. Loudoun County
Sheriff's Office, 289 Va. 499, 505, 771 S.E.2d
858, 860-61 (2015))).
10Id.
11Id.; see, e.g., Cole v.
Smyth County Bd. of Supervisors, 298 Va. 625,
636, 842 S.E.2d 389, 394 (2020) ("In construing
statutory language, we are bound by the plain meaning
of clear and unambiguous language." (quoting
White Dog Publishing, Inc. v. Culpeper County
Bd. of Supervisors, 272 Va. 377, 386, 634 S.E.2d
334 (2006))).
12Freedom of Information Advisory Opinion
03 (2018).
13Acts of Virginia, Chapters 733, 756 (2024).
14Id.
15Id.
16Id.
17Id.
18Freedom of Information Advisory Opinions
03 (2014), 03 (2009), 12 (2008), and 02 (2006).
19See Freedom of Information Advisory
Opinion 02 (2006) (noting: one of the five
members was a member of both public bodies).
20Freedom of Information Advisory Opinion
02 (2006); see, e.g., Beck v. Shelton, 267
Va. 482, 593 S.E.2d 195 (2004).
21Id. (quoting Beck at 493).
22Id. (quoting Beck at 493-94).
23Id. (quoting Beck at 493).
24Id. (quoting Beck at 493-94).
25Id.
26Id.
27Id. (quoting Beck at 493).
28See Va. Code § 2.2-3701.
29Freedom of Information Advisory Opinion
02 (2006).
30See Id.
31Id.
32Id.
33Id.
34Id.
35See Freedom of Information Advisory
Opinions 05 (2001).
36See Freedom of Information Advisory
Opinions 02 (2006) and 05 (2001).
37Freedom of Information Advisory Opinion
02 (2006); See Id.
38See Freedom of Information Advisory
Opinions 02 (2006) and 05 (2001).
39See Freedom of Information Advisory
Opinion 03 (2014).
40Id.
41Id.
42See Freedom of Information Advisory
Opinions 03 (2014), 03 (2009), 12 (2008), and 02 (2006).
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