July 3, 2002

Priscilla Lehman
Winchester, Virginia

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 letter of May 7, 2002, and our previous e-mail dated April 25, 2002.

Dear Ms. Lehman:

You have asked whether the meeting requested by a member of the Commonwealth Transportation Board with three members of the Frederick County Board of Supervisors was a meeting subject to the open meeting requirements of the Virginia Freedom of Information Act (FOIA). Specifically, by letter dated March 18, 2002, Ms. Olivia A. Welsh, a member of the Commonwealth Transportation Board, requested a meeting with the Frederick County Board of Supervisors (the Board) concerning a decision made by the Board relating to the extension of Route 37. In her letter, Ms. Welsh stated that she did not intend the requested meeting to be a public meeting with public input, that she expected all members of the Board to be present, and that the press was welcome. In response to this letter, a meeting was scheduled on March 27, 2002, in the Board’s closed session conference room. You indicate that on the day of the meeting, the location of the meeting was moved to the Board’s regular meeting room. You indicate that the Board gave no notice for this meeting or its change of location, but that the local newspaper noted the change of location in an article published on the day of the meeting.

Section 2.2-3701 of the Code of Virginia defines a "meeting" as the meetings, including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708, 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. A "public body" includes any legislative body; any authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. Under FOIA, a meeting requires the gathering of three or more members, or a quorum of less than three, of a public body and the discussion or transaction of public business (emphasis added).

Clearly, when three members of the Board gathered to discuss their decision relating to Route 37 with Ms. Welch, even though the meeting was arranged at her request, that gathering constituted a meeting under FOIA. As a result, notice must be given in accordance with the requirements of FOIA, the meeting must be open to the public, and minutes must be taken of the meeting.

Subsection C of § 2.2-3707 of the Code of Virginia states that [e]very public body shall give notice of the date, time, and location of its meetings by placing the notice in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or in the case of a public body which has no clerk, in the office of the chief administrator. Publication of meeting notices by electronic means shall be encouraged.¹

Subsection D of § 2.2-3707 addresses notice for special or emergency meetings and requires that notice, reasonable under the circumstance, must be given contemporaneously with the notice provided members of the public body conducting the meeting.²

Regardless of whether this was a regular or special meeting, FOIA requires notice to be given in the manner discussed above.

The next requirement under FOIA for a meeting is that it be open to the public. It is important to note that the required notice is for the benefit of the public and the media, and not for the media alone. The underlying policy of FOIA as expressed in § 2.2-3700 provides that [b]y enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to records in the custody of public officials 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.³ The provisions of 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 operation of government.⁴ Therefore, FOIA contemplates public access that includes the media and citizens, not one or the other.

Because you did not ask about the taking of minutes, that requirement will not be discussed in this opinion.

Your final question concerns whether Board members may waive the notice required by FOIA. You indicate that the county administrator sent a memorandum to the Board members indicating that a waiver notice would be prepared for Board members’ signature. There is a provision found in § 15.2-1418 that allows Board members to waive their notice of a special meeting. However, there is no provision in FOIA that allows for the waiver of the required notice to the public. As a result, notice of this meeting was required to be given as discussed above and while the Board may waive its notice; it cannot waive the notice to the public required by FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹Va. Code Ann. § 2.2-3707(C) (Michie 2002) (effective July 1, 2002).

²Va. Code Ann. § 2.2-3707 (D) (Michie 2002) (effective July 1, 2002).

³Va. Code Ann. § 2.2-3700 (Michie 2002) (effective July 1, 2002).

⁴Va. Code Ann. § 2.2-3700 (Michie 2002) (effective July 1, 2002).