July 19, 2004

Mr. Curtis Wunderly
Manassas, 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 fax of April 21, 2004, and your e-mail of April 22, 2004.

Dear Mr. Wunderly:

You have asked a question concerning the application of the Virginia Freedom of Information Act (FOIA) to a gathering of three members of the Manassas County School Board ("the Board").

Specifically, you indicate that the chairman, vice-chairman, and a third member of the Board met with about 20 local residents at a private home to discuss the impact of a proposed school for fifth- and sixth-grade on the surrounding community. You indicate that the Board members attended the meeting at the invitation of the local residents. The Board had hoped to break ground on the school in May and complete it by September 2005, but several residents had voiced concerns about the plans. A newspaper article reporting on this meeting, which you provided to the FOIA Council with your request for an opinion, states that issues such as traffic and the size of the school were discussed, and that the residents expressed concerns that they had been left out of the planning process and were not given accurate information. The article states that at the conclusion of the meeting, the chairman of the Board promised that in light of the concerns, the Board would not break ground on the construction of the school on May 1. You indicate that notice was not provided for this meeting, and that you, a member of the Board, did not know about the gathering until after it took place. You ask if the gathering was a meeting subject to the requirements of FOIA.

The policy of FOIA at subsection B of § 2.2-3700 of the Code of Virginia states that 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 operations of government. FOIA defines a meeting at § 2.2-3701 to include meetings including work sessions...as a body or an 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. Subsection A of § 2.2-3707 states that all meetings of public bodies shall be open, unless specifically exempt. Subsection C of § 2.2-3707 requires that public bodies give notice of the date, time, and location of its meetings at least three working days in advance of the meeting, and subsection I of § 2.2-3707 requires that minutes be recorded at all open meetings.

At issue is whether the gathering of the three members of the Board constituted a meeting for purposes of FOIA. This requires an examination and reconciliation of the definition of a meeting, which defines a meeting as a gathering of three or more members of a public body, with the policy of FOIA at subsection B of § 2.2-3700 that states that FOIA shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth. The Supreme Court of Virginia recently had the opportunity to examine the balance of these two provisions of FOIA in Beck v. Shelton.¹ In Beck, three members of a city council were separately invited to attend a citizen-organized meeting to discuss traffic and safety issues. The council members did not give notice of the meeting or take minutes. The Court determined that this gathering was not a meeting under FOIA, but stated that such a decision must be decided on a case-by-case basis according to the facts of a particular situation. In reaching its conclusion in Beck, the Court noted that the city council did not have any business pending before it concerning the particular traffic issues that the citizens wanted to discuss, and that it was not likely to in the future. The Court also found that the three council members did not discuss anything with each other as a group at the gathering, but instead spoke individually with various citizens that attended the gathering. The Court further noted that subsection G of § 2.2-3707 allows members of a public body to gather at public forums without invoking the meeting requirements of FOIA when the purpose of such gathering is not to transact or discuss public business. Based on the totality of these facts, the Court concluded that it was not a meeting under FOIA, but instead was a citizen-organized informational forum that did not involve the discussion or transaction of public business.

The Beck case, however, can be distinguished from the facts you present. As noted by the Court, the question as to whether a gathering of three or more members of a public body at a citizen-organized event is a meeting under FOIA must be determined on a case-by-case basis. In the facts you present, discussion of the proposed school was a current issue pending before the Board. The Board had selected a site, worked with architects, conducted traffic studies, and was planning to break ground in just a few weeks. Furthermore, the facts indicate that the three Board members gathered as a group specifically to discuss the new school with the concerned citizens. Read together, these facts demonstrate that this gathering was organized specifically to discuss the public business of the Board. Therefore, the gathering was a meeting subject to FOIA despite the fact that it was arranged by local residents and held at a private home. As a result, FOIA would require that proper notice be provided, minutes be taken, and that the meeting be open to all members of the public, including other members of the Board.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹March 5, 2004, No. 030723.