October 5, 2001

Mr. Anthony Kimery
Culpeper, 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 e-mail of September 4, 2001.

Dear Mr. Kimery:

You have asked a question concerning informal meetings conducted by members of the Culpeper Board of Supervisors ("the Board") under the Virginia Freedom of Information Act (FOIA). You included an article from a local paper, The Freelance Star, with your inquiry that detailed a meeting that took place between the county Communications Director and three members of the Board. The article indicates that the discussion involved the county's plans to build telecommunications towers. A fourth member of the Board found out about the meeting, and accused the three of conducting an improper meeting under FOIA. In a subsequent letter to the editor in The Freelance Star, another member of the Board characterized the meeting as "an unofficial meeting, not a 'secret meeting'." The member said that a formal, noticed meeting had been held, but after that meeting adjourned members still present in the county building continued their discussions. The letter also stated that other members of the Board had been involved in similar informal discussions after other meetings, where "people were coming and going" and they "talked to staff." You ask whether the gatherings outlined in both the article and the letter constitute improper meetings under FOIA.

Section 2.2-3701 of the Code of Virginia defines a meeting as 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. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter. (Emphasis added). Section 2.2 - 3707 requires that all meetings of a public body be open to the public, notice be given, and minutes be taken.

The situations presented in both the article and the letter are clearly informal, and perhaps impromptu, gatherings of three or more Board members. Under FOIA, even these informal gatherings when public business is discussed constitute a meeting, and thus the procedures set forth in FOIA must be followed. It makes no difference that these informal meetings took place immediately following an open meeting. If that open meeting was adjourned, and the press and public had departed, then any further discussion of public business amongst three or more members of the Board would be prohibited by FOIA.

The letter to editor mentioned that often these informal meetings involve discussions with staff members. The definition of a meeting clearly states that the gathering of employees of a public body does not constitute a meeting under FOIA. That means that when the staff of the public body gathers, it need not give notice, take minutes, or open the discussion to the public. And, in following the definition of a meeting set forth in FOIA, if one or two members of the Board stopped to discuss public business with a staff member, this gathering would likewise not be meeting for the purposes of FOIA. However, once three or more members of the Board gather to discuss public business, even if it is to discuss the business with a member of the staff, the gathering falls under the definition of a meeting and invokes the FOIA requirements.

The letter to the editor that you presented also makes mention of situations where members of the Board are invited to a function, such as a dinner, where three or more members of the Board are gathered. The author of the letter asserts that FOIA pertains to such situations, and that any time three or more members of the Board are gathered the public would need to be given notice. However, Subsection G of § 2.2-3707 contemplates this situation and states that FOIA shall not be construed to prohibit the gathering or attendance of two or more members of a public body (i) 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, and such gathering or attendance was not called or prearranged with any purpose of discussing or transacting any business of the public body. Therefore, the procedural requirements for conducting a meeting would not be invoked if three or more members attended a function that was not arranged for the purpose of discussing or transacting public business, so long as no public business is actually discussed.

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

Sincerely,

Maria J.K. Everett
Executive Director