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Law Issues
Virginia Freedom of Information Act
by J. David Griffin, Esq.
dgriffin@winchesterlaw.com
Virginia law requires that local government and its boards, commissions and committees conduct its business in public unless a specific provision provides to the contrary. These provisions are contained in the Virginia Freedom of Information Act, Virginia Code §2.1-340 et. seq.. A copy of the current statute is attached.
The policy of the Virginia Freedom of Information Act is set forth by statute (§2.1-340.1). The FOIA guarantees "free entry to meetings of public bodies wherein the business of the people is being conducted." The statute goes on to state that "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 public official specifically elects 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 activity 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."
Unless specifically provided by an exception, all meetings of a local government must be public meetings, including meetings and work sessions during which time no votes are cast or any decisions made. This includes not only the meetings of the Board of Supervisors or Town or City Council, but the meetings of the Planning Commission, the Historic Preservation Commission and the Board of Zoning Appeals. Notice, including the time, date and place of each meeting must be furnished to any citizen of the Commonwealth of Virginia who requests such information, as well as in a prominent public location at which the municipality regularly posts notices. Publication of notices by electronic means is encouraged as well. The notices must be posted at least three days before the meeting.
Voting by secret or written ballot in an open meeting is forbidden by the Act. Please note that Section 2.1-343.1 governs "electronic meetings." Unless the terms of this section are strictly complied with, members of the public body must be physically present together to act. Section 2.1-343.2 forbids a member of the Board/Council from agreeing informally to act on any matter except at a regular or special meeting. It is permissible to poll each member individually on matters of common interest, but that method cannot be used to authorize formal action of any kind.
Minutes must be taken at all public meetings. The exception to this is for committees or sub-committees in which the membership does not include a majority of the governing body.
Whenever three or more members of the public body meet to transact public business, they must do so in public and are subject to the FOIA requirements. Attendance at certain social functions where no part of the purpose of the gathering is the discussion or transaction of any public business is excepted from the provisions of the Act.
The public body and its committees and commissions may go into closed sessions for a "non-public" meeting. The term "Executive Session" has been deleted from the Code; these meetings are now called "Closed Sessions." There is a specific process for going into and out of closed sessions.
The Freedom of Information Act also governs documents in the possession of the local government and its boards, committees and commissions and makes most of the documents subject to public disclosure. Agenda packages must be made available for public inspection at the same time they are given to the public body. If the Agenda packet includes documents which are exempt from disclosure, these documents must be each stamped "EXEMPT FROM DISCLOSURE" in the Council packet, and are not furnished in the public agenda packet.
The Freedom of Information Act also applies to electronic mail (e-mail). To the extent that such messages have been preserved, they are subject to public disclosure unless a specific exception to the mandatory disclosures requirement exists. In this regard, e-mail messages are not different than any other letter, memorandum or other document generated in the conduct of public business.
The mere act of sending an e-mail message from one Councilman or Board member to another does not of itself constitute a violation of the FOIA. The transmission of a message is the equivalent of a unilateral statement by a Council member. As such, it does not rise to the level of a dialogue regarding public business that must be conducted in the open. Only when a response to that unilateral statement is anticipated and received does a potential violation arise.
If one or more Council or Board members respond to an electronic mail message, it may constitute a dialogue between and among multiple members of the governing body and thus constitute a violation of the FOIA. The Act requires that "meetings" be conducted in public with minutes taken. The dialogue between and among members is akin to verbal discussion in person or by telephone involving more than two members of the Council or Board. The proscriptions of the Act would therefore apply to such a dialogue.
Based on the foregoing, it is acceptable for one Council or Board member to send a message to another Council member and get a response. This would be similar to a one on one verbal conversation, in person or by telephone, neither of which violate the FOIA. Once an additional Council member is introduced into the dialogue, however, a violation of the Act arises.
The Virginia Freedom of Information Act may be enforced by any citizen, including the Attorney for the Commonwealth acting in his official capacity, by filing either in the General District Court or the County Circuit Court. A trial must take place within seven days from the date the petition is filed, unless the Court is not in session and then the trial must be given precedence on the docket over all other cases not otherwise given precedence by law. If the Court finds that the County, City or Town, its Boards or Officials have violated the FOIA, the Petitioner shall be entitled to recover costs and attorneys fees from the public body. Additionally, if the Court finds that a violation is willfully and knowingly made, the Court shall impose upon such member in his or her individual capacity a civil penalty of not less than $100.00 nor more than $1,000.00 for each violation. No public funds or insurance proceeds may be used to satisfy this penalty.
Additionally, the Court may issue an injunction forever forbidding certain conduct by the Board, City or Town, its Committees or Officials. Such an injunction will be binding on all future council members. See, for example Shenandoah Publishing House v Shenandoah County Board of Supervisors, Shenandoah County Law 93-50 in which the Circuit Court forever enjoined the Shenandoah County Board of Supervisors and its committees from conducting "closed" meetings that did not completely and specifically comply with the Executive (Closed) Session provisions. Note that violation of an injunction may subject council members to contempt of court proceedings for which the penalty is up to one year in prison and a $10,000.00 fine.
COMMITTEE MEETINGS
Committee Meetings are subject to all of the provisions of the Freedom of Information Act. Committee meetings must be open unless the Committee properly goes into a Closed Session. The same notice provided for regular Council meetings must also be provided for committee meetings.
Virginia Code §2.1-341 includes any committees or subcommittees of the public body created to perform delegated functions of the public body or to advise the public body are included within the definition of "meeting". Also included within the definition of "meeting" are an informal assemblage of as many as three members, or (ii) a quorum, if less than three, of the constituent membership. . . of any public body.
Thus, if a County, City or Town Committee is composed of three Council or Board members, and two of the individuals are present for a meeting, there is a quorum of the committee. This constitutes a "meeting" within the provisions of the Virginia Freedom of Information Act, requiring compliance with the remaining portions of the FOIA legislation.
Additionally, the Mayor or Chairman of the Board of Supervisors is also a member of the public body. His/her presence at any committee meeting counts toward the "assemblage of as many as three members". At no time should a meeting be canceled or postponed because the Mayor or other Board or Council members attend. This will be in direct violation of policy as set forth in the Virginia Freedom of Information Act and may subject the committee members to sanctions discussed previously.
MINUTES OF COMMITTEE MEETINGS
Minutes must be taken at all public meetings. The exception to this is for committees or subcommittees in which the membership does not include a majority of the governing body.
Using a narrow interpretation of this provision of the statute, if a governing body is composed of six members, plus a Mayor or Chairman and if three Board or Council members and the Mayor are present at a committee meeting, minutes must be taken. If four Board or Council members are present at a committee meeting, minutes must be taken. Even under a narrow construction of the statute, when four members of the Board or Council are present at a committee meeting, the majority of the Board or Council is present. Any decisions/actions taken by this group is essentially an action of the Board or Council. It is for this reason that only items of business set forth on the agenda may be considered and minutes of the decision making/discussion must be kept.
These requirements prevent a Board or Council from essentially making decisions "off the record" in the guise of a committee meeting which bind the governing body when put to a later vote.
However, as was noted under the discussion of the Virginia Freedom of Information Act, Virginia law requires that the FOIA be given broad reading. Throughout the FOIA, reference is made to public bodies rather than governing bodies. Public body broadly defined in the Act. It includes any committees or subcommittees of the public body created to perform delegated functions of the public body or to advise the public body.
Using this definition in construing the statutory requirement for the taking of minutes, any time there is a "majority" of the membership of the committee, minutes must be taken.
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