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August 31 , 2004
Mr. Robin Lind
Goochland, 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 May 17, 2004, and
telephone conversation of May 20, 2004.
Dear Mr. Lind:
You have asked a question concerning the application of the
Virginia Freedom of Information Act (FOIA) to e-mails between
members of an electoral board.
Pursuant to § 24.2-106 of the Code of Virginia, every
locality in the Commonwealth has a three-member electoral board to
administer and oversee the locality's elections. The electoral
board is a public body, and § 24.2-107 explicitly states that
meetings of local electoral boards are subject to the provisions of
FOIA. FOIA defines a meeting at § 2.2-3701 as work
sessions, when sitting physically, or through telephonic 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.
Because the electoral board is comprised of only three members, a
gathering of two members of the board constitutes a quorum, and
thus a discussion of public business between two members of an
electoral board would be a meeting under FOIA.
In light of this definition of a meeting, you ask if the
exchange of e-mails between two members of the electoral board
would constitute a meeting under FOIA. You indicate that last year,
when you served as chairman of the Goochland Electoral Board, you
directed that all e-mails between members of the board be copied to
the local registrar for her to keep on file and open to public
inspection. However, you now ask if in addition to being a public
record, the use of the e-mail constitutes a meeting that should be
noticed under FOIA.
The Supreme Court of Virginia recently had the opportunity to
address the use of e-mail under FOIA and to determine whether use
of e-mail between members of a public body might be subject to the
meeting provisions of FOIA.1 The Court
held that use of e-mail did not constitute a meeting, because the
definition of a "meeting" under FOIA entails a degree of
simultaneity. The Court found that e-mail was more akin to
traditional forms of written correspondence, such as a letter or a
facsimile, and that there may be a significant delay between the
time an e-mail communication is sent and received and when a
response is sent. It is important to note that the Court stopped
short of saying that use of e-mail could never be a meeting under
FOIA. The dispositive determination in examining e-mail under the
meeting provisions of FOIA is to examine how the e-mail was used.
Members of public bodies need not refrain from using e-mail in a
manner that is the equivalent of sending a letter; however, members
of public bodies should be cautioned against using e-mail in a
manner that appears to entail simultaneity.
In conclusion, members of a local electoral board are not
violating FOIA by using e-mail to communicate with one another. As
you noted in your question, however, e-mails relating to the
transaction of public business are public records subject to access
under FOIA. Therefore, while not mandated by FOIA, it is a good
idea to continue to implement a system such as the one you have
described where all e-mails are copied to the registrar and kept on
file for public inspection. Furthermore, from a public relations
standpoint, it is important to remember that the policy of FOIA at
subsection B of § 2.2-3700 is to afford every opportunity
to citizens to witness the operations of government. Members of
public bodies are advised to keep this policy in mind when deciding
to use e-mail to communicate with one another concerning
substantive matters.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1See Beck v.
Shelton, No. 030723 (March 5, 2004).
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