VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

November 15, 2004, Richmond

The Electronic Meetings and Notice Subcommittee¹ met to review the draft legislation considered at its last meeting. The proposed draft would (i) require all meeting notices of state public bodies in the executive branch to be posted on the Internet, (ii) reduce the notice requirement from 30 days to seven working days prior to any electronic communication meeting, and (iii) require the inclusion of a telephone number that may be used during an electronic communication meeting to notify other meeting locations of an interruption in the broadcast from any site of the meeting. It was noted that no decision had been made concerning the elimination of the 25 percent limitation of the number of electronic meetings that could be conducted annually.

The subcommittee solicited public comment on the proposed draft. A representative of the Virginia Information Technologies Agency (VITA) stated that VITA would like to see the 25 percent limitation eliminated, but was in agreement with requiring the quorum of the public body conducting the electronic communication meeting to be physically present at one primary location.² VITA stated that boards within VITA did not use the pilot program. The Virginia Coalition for Open Government stated that the physical quorum at one primary location should be retained, seven working days' notice was adequate, and that there should be uniform rules for the conduct of electronic communication meetings. The Virginia Press Association (VPA) reminded the subcommittee that electronic communication meetings were not the rule under FOIA, but an exception to the open meeting provisions of FOIA. The procedural protections for notice, access, and memorializing for electronic communication meetings were put in place upon its enactment in 1984. The VPA noted that although technology has changed enormously since 1984, this area of the law should not be overtaken. Instead those original provisions that sought to keep such meetings open and accessible to the public should be the subject of careful deliberation and amendment to maintain the policy objectives of FOIA. The VPA stated that the proper balance should be between ensuring maximum public participation and access and facilitating convenience for members of the public body. The VPA also called for uniform rules governing notice and access to electronic communications meetings and stated that the requirement for a physically assembled quorum at one primary location should be maintained due to its importance to open meetings and to open government generally. The VPA stated that its major concerns with electronic meetings are the chronic nonparticipation by a minority of members of a public body and the lack of access to a disembodied group. They stated that the effect of overturning current law on electronic communications meetings is to lower the bar for expectations of our public officials. Additionally, VPA questioned whether the reporting requirements for the pilot program or the relevant provisions found in FOIA had produced ample data that could serve as a basis for the amendment of the electronic meetings provisions. Staff indicated that very few reports had been made since the inception of the pilot program in 1998.

The subcommittee discussed nonparticipation by members of a public body and stated that the current law attempted to address the situation by limiting the number of meetings that could be conducted electronically to 25 percent. One alternative to the 25 percent limitation was to identify the members physically present as well as those attending through remote locations in the minutes of the meetings. It was noted that members present and absent are currently required to be recorded in the minutes of any public body. It was also suggested that a limitation on the number of times a particular public official may use electronic communications meetings may be a solution. One subcommittee noted that ours is a representative government and questioned how public policy discussions may be impacted by such a limitation.

Staff from the Joint Committee on Technology and Science (JCOTS) reported that JCOTS has a subcommittee looking at the provisions of electronic communications meetings due to the expiration of the pilot program. The goal of JCOTS was stated as codifying the provisions of the pilot program. The difference between the positions of JCOTS and the FOIA Council subcommittee concern the location for the quorum and the recording requirements. Current law, including the pilot program, require that in addition to minutes, a recording be made of the electronic communications meeting and retained for a three-year period.

After considerable discussion among subcommittee members and the interested parties, the subcommittee by consensus agreed to recommend draft legislation to the full FOIA Council that would (i) amend § 2.2-3707 requiring minutes of the electronic communication meetings identify each member participating remotely and those physically located at the primary location for the meeting, as well as the identity of members who monitor³ the meeting from a remote location, (ii) eliminate the 25 percent limitation on the number of electronic communication meetings conducted annually, (iii) require a quorum of the public body to be physically assembled at one primary location, (iv) require at least one meeting annually to be conducted where all members are physically located and no members may participate electronically, (v) change the annual reporting period for public bodies conducting electronic meetings from December 1 to December 15, (vi) authorize the conduct of closed meetings, (vii) eliminate the requirement for recording (either audio or audio and visual) of electronic meeting, (viii) require the filing of a written report to the FOIA Council and JCOTS, and (ix) eliminate the filing of notice with VITA. The subcommittee requested JCOTS staff to advise JCOTS of the subcommittee's recommendations and that it strongly urged the adoption of one consensus draft to be introduced during the 2005 Session. The subcommittee directed staff to prepare a draft that reflected these recommendations in addition to its earlier recommendations referenced above and to make the draft available on the Council website.

¹Subcommittee members Messrs. Hallock and Miller were present; Mr. Hopkins was absent due to a death in his family.
²As distinguished from the pilot program pursuant to Chapter 704 of the 1999 Acts of Assembly, as amended, which requires only that a quorum be physically present in Virginia.
³The standing opinion of the FOIA Council is that if proper notice or public access to remote meeting locations is not given, a member of a public body may only monitor the meeting and may not actively participate or vote.