VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

March 14, 2001, Richmond

The Freedom of Information Advisory Council held its fourth meeting to continue its deliberations on electronic communication and its impact on the Virginia Freedom of Information Act (FOIA). The council also reviewed several bills passed by the 2001 Session of General Assembly directly impacting FOIA as well as those bills and resolutions relating to public access to government records (HJR 789, HB 2169, HB 2750, SB 884, SB 1096, and SB 1322).

The council also discussed several bills from the 2001 Session of the General Assembly that did not advance during the legislative process but were instead referred to the council for study. The three bills, HB 1597, HB 2091, and HB 2700, would have amended FOIA as it relates to current records exemptions. The council decided that patrons should be invited to present their bills to the council at its next meeting and be given an opportunity to provide necessary background information at that time.

Electronic Communications

The council continued its deliberations on the treatment of electronic communications as they relate to the open records and meetings requirements of FOIA. In a records context, e-mails should not be thought of merely as an instant means of leaving or responding to messages in a manner similar to phone calls and voice mail; but as equal, in actuality and legally, to a letter or memo. In consideration of public rights of access, retention, and disposal, and the functions and responsibilities of public employees, e-mails should be treated in most respects like paper. The definition of "public record" under FOIA includes e-mails, and from a record perspective, e-mails fit easily into current FOIA language. One potential problem with electronic communications, however, derives from a general perception that e-mails are intangible, as evidenced from the practice and ease of deleting them.

But from a meeting perspective, electronic communications may be more troubling. As defined in FOIA, "meeting" means "the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.1-343.1, 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." In a meeting context, a series of electronic communications between "individual members of a public body which result in a collective decision or a vote taken by email would be inconsistent with law. Generally, except for certain state agencies in limited enumerated instances, any action or vote taken by a public body must occur only at a meeting where a quorum is physically assembled.

With electronic communications, access advocates are concerned that the public will be left out of witnessing the operation of government. Public officials, on the other hand, are concerned that they (i) cannot avail themselves of technology or (ii) have to give access to their dealings beyond that contemplated by FOIA. A pertinent question in the examination of electronic communications and FOIA, especially from a meetings perspective, is: When is email just correspondence, and when does it cross the line and become the discussion or transaction of public business?

The Director of the Division of Legislative Automated Systems reported that electronic meetings with meaningful public access are possible to achieve, although they require special considerations that are not present with traditional "physically assembled" meetings. Advantages of technology-based meetings cited were the accessibility to expertise; the ability to share detailed information; the expansion of participation because electronic meetings are not limited by location or time of day; and the ability to "capture" presentations for future use. Technology-based meetings also present several disadvantages, including the loss of visual clues (i.e., body language, etc.), the expense of "technological" participation versus physically assembled meetings, the limiting/inhibiting of participation, and the complexity of electronic meeting logistics (i.e., at whom or what will people be looking, distribution of agendas and handouts, and moderation of participation, etc.).

In order to ensure public access to the meetings of public bodies under FOIA, essential components must be built into the process. These essential components are open (nonproprietary) software, preservation of the historical record, and consideration of the observation versus active participation continuum (how will participation be structured). Illustrating this last point, members of the council were encouraged to recall their own experience with conference calls where many people are talking all at once. It was noted that structured interaction among participants is required to ensure meaningful exchange.

The Honorable Clifton A. "Chip" Woodrum, Chairman
Staff contact: Maria J.K. Everett