TABLE OF CONTENTS

TABLE OF AUTHORITES [OMITTED FROM ONLINE FILE]

• ASSIGNMENT OF ERROR

• STATEMENT OF THE CASE

• QUESTIONS PRESENTED

• STATEMENT OF FACTS

• ARGUMENT

• I. THE CIRCUIT COURT ERRED IN HOLDING THAT THE EXCHANGE OF ORDINARY EMAIL CORRESPONDENCE CONSTITUTES A "MEETING" FOR PURPOSES OF FOIA

• A. The Plain Language of FOIA Does Not Include the Ordinary Exchange of Email Correspondence Within the Definition of "Meeting"

• B. Section 2.2-3710(B) of FOIA Specifically Permits the Emai Correspondence at Issue

• C. The Circuit Court Erroneously Failed to Defer to the Attorney General's Well-Reasoned Opinion that Ordinary Email Correspondence Does Not Constitute a Meeting Under FOIA

• D. The Circuit Court's Ruling is Inconsistent with the Structure and Purposes of the FOIA Statute

• II. THE SHELTON PLAINTIFFS' ASSIGNED CROSS-ERRORS LACK MERIT

• A. The Circuit Court Correctly Ruled that FOIA's Open Meetings Provisions Do Not Apply to Members-Elect

• 1. By Its Terms, an Informal Gathering Can Constitute a Meeting Under FOIA Only If at Least Three Actual Members of the Public Body Are Present

• a. Even a "Liberal" Construction of FOIA Cannot Change the Plain Meaning of its Terms.

• b. Members-Elect are Required to Receive and Become Familiar with FOIA So That They are Aware of FOIA's Provisions When They Take Office

• c. There Are No Private Sector Or Citizen Members of the City Council

• B. The Circuit Court Properly Struck the Shelton Plaintiffs' Evidence With Respect to the "Charlotte Street" Gathering

• 1. The Facts Adduced at Trial

• 2. The Undisputed Facts Adduced at Trial Fail as a Matter of Law to Constitute a Violation of FOIA's Open Meetings Provisions

• a. The FOIA Statute Explicitly Provides That It Shall Not Be Construed To Limit Constituents' Access To Their Elected Officials

• b. The Charlotte Street Gathering Did Not Involve the Transaction or Discussion of "Public Business"

• c. The Charlotte Street Gathering Was Not a Meeting of a Public Body

• C. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly Were Entitled to Entry of Judgment In Their Favor With Respect to Count XIV

• CONCLUSION

CERTIFICATE OF SERVICE PURSUANT TO RULE 5:26(d) [OMITTED FROM ONLINE FILE]

ASSIGNMENT OF ERROR

1. The Circuit Court erred in holding, as a matter of law, that the exchange of ordinary written email correspondence constitutes a prohibited "meeting" in contravention of the open meeting requirements of the Virginia Freedom of Information Act, Va. Code Ann. § 2.2-3700, et seq. (objection preserved by endorsement on Order of January 8, 2003, Joint Appendix ("J.A.") 794-98, and in trial transcript of December 13, 2002, J.A. 614-38).

STATEMENT OF THE CASE

This appeal involves the proper construction of the open meeting requirements of the Virginia Freedom of Information Act ("FOIA"), Va. Code Ann. § 2.2-3700, et seq. FOIA prohibits a particular type of event - closed meetings. It does not prohibit the exchange of correspondence among elected officials, although it requires that public records (including correspondence) be made available to the public upon request. Appellants Mayor Bill Beck, Vice Mayor Scott Howson, and Councilmember Matt Kelly - all of whom serve on the Fredericksburg City Council - fully complied with their obligation under FOIA to produce copies of their email correspondence. However, the Circuit Court erroneously ruled that email correspondence not only must be produced under FOIA, but constitutes the conduct of an illegal meeting under FOIA, even though the statute itself provides no authority for such a finding.

On September 24, 2002, three Fredericksburg residents (hereinafter the "Shelton Plaintiffs") filed an eighteen-count petition in the Circuit Court for the City of Fredericksburg, requesting a writ of mandamus, injunction, sanctions, costs and fees against Fredericksburg Mayor Bill Beck, Vice Mayor Scott Howson, and Councilmembers Matt Kelly, Dr. Tom Fortune, and William Withers, Jr. The petition alleged that the members of the City Council willfully violated FOIA by holding secret meetings via email or in person. The members of the City Council prevailed on demurrers or at trial on fourteen of the eighteen counts, and the Shelton Plaintiffs voluntarily dismissed three more of the counts shortly before trial.

With respect to the single claim not resolved entirely in the councilmembers' favor, the Circuit Court held, as a matter of law, that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly violated FOIA's open meetings provisions by exchanging ordinary written email correspondence concerning a potential nominee for appointment to a regional library board.[fn1] According to the Circuit Court, public officials violate the open meeting provisions of the FOIA statute by exchanging garden-variety written emails, even though the terms of the statute prohibit only meetings and not correspondence. As stated by the Circuit Court:

If three or more members of a public body communicate with one another by electronic communications, including e-mail, for the purpose of public business, or for the purpose of establishing or coming to a consensus, and incidentally this does not include communications for the purpose of simply providing information. It does not include that.

And, again, because of the nature of the dialogue that is established, a consensus perhaps is reached, then that is a violation, in the Court's opinion, of the FOIA statute.

J.A. 659-61. The Circuit Court found it irrelevant to its analysis that the email communications did not constitute an actual deliberative meeting, in that there were no simultaneous discussions of ideas, and there were time lags of hours - or in some cases days - between responses to emails on the subject of the library board.

As a result, the Circuit Court granted the Shelton Plaintiffs' motion for partial summary judgment as to Count XI of the complaint against Mayor Beck, Vice Mayor Howson, and Councilmember Kelly, and denied the summary judgment motion of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly as to this count.[fn2] 'The Court entered its judgment on January 8, 2003. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly timely noted their appeal of the Circuit Court's grant of partial summary judgment against them, and denial of their own motion for summary judgment, with respect to Count Xl of the petition. On August 5, 2003, this Court granted Mayor Beck, Vice Mayor Howson, and Councilmember Kelly leave to appeal the Circuit Court's ruling.[fn3]

QUESTIONS PRESENTED

1. Do the open meeting requirements of Virginia's FOIA statute, Va. Code Ann. § 2.2-3700, et seq., prohibit the exchange of ordinary written email correspondence among three or more members of a public body, where there is no formal or informal assemblage of the members of the public body for simultaneous deliberation, discussion, or interaction? (Question Presented relates to Appellants' First, and only, Assignment of Error).

2. Are persons who have been elected to office, but who have not yet taken office, subject to the open meeting requirements of Virginia's FOIA statute, Va. Code Ann. § 2.2-3700, et seq., where that statute makes only members of a public body so subject? (Question Presented relates to the Shelton Plaintiffs' First Assignment of Cross Error).

3. Do the open meeting requirements of Virginia's FOIA statute, Va. Code Ann. § 2.2-3700, et seq., prohibit three or more members of a public body from separately attending a citizen-organized gathering on a public street corner where the members of the public body do not have discussions amongst themselves and the subject of the gathering is a matter not likely to come before the public body? (Question Presented relates to the Shelton Plaintiffs' Second Assignment of Cross-Error).

STATEMENT OF FACTS

Between July 3,2002 and July 8, 2002, a total of nine pieces of written correspondence - transmitted via email- were drafted by Mayor Beck, Vice Mayor Howson, or Councilmember Kelly concerning an upcoming vacancy on a regional library board. J.A. 382-403. Each of these pieces of correspondence was sent by the author to multiple members of the Fredericksburg City Council. J.A. 382-403, 543. Ultimately, the only potential candidate mentioned in the correspondence - Assistant City Manager Bev Cameron, who was suggested as a candidate because he was an apolitical "number cruncher" (J.A. 390) - was eliminated as a potential candidate for the library board because he did not reside within the City of Fredericksburg. J.A. 400.

By any definition, the pieces of correspondence at issue were garden variety emails, indistinguishable from any other type of written correspondence. Like a letter mailed to multiple recipients, each recipient of the email correspondence received his copy of the correspondence at different times, depending on when he logged into his email system.lA. 382-403, 543. As such, there was no simultaneous deliberation or exchange of ideas. Again, like every other form of written communication, Mayor Beck, Vice Mayor Howson, and Councilmember Kelly understood that their communications were public records and available to the public as such under FOIA. Indeed, that is precisely the manner in which the Shelton Plaintiffs received the emails concerning the library board - they submitted a FOIA request and the emails were produced along with all other types of written correspondence falling within the request. J.A. 28.

Moreover, like every other type of written communication (and unlike the commonly understood meaning of the term "meeting"), there were significant lag times between the sending of an email and any response to the thoughts set out in the email. The chart below lists all nine of the emails that were relevant to the Circuit Court's finding that a prohibited "meeting" occurred concerning the upcoming vacancy on the library board.[fn4]

"LIBRARY BOARD" EMAILS

As this chart makes clear, the members of the City Council were not seeking to evade the open meeting requirements of FOIA by conducting the functional equivalent of a meeting - with its concomitant simultaneous interaction - through an electronic medium. To the contrary, in each instance in which a member of the City Council sent an email communication, there was either no reply to the email or any response to the email came hours or days later. The shortest interval between an email and a response thereto was more than four hours. See J.A. 390. Thus, like any other form of written correspondence, the emails in question were sent to recipients chosen by the author, and significant delays occurred between the sending of an email and any written response thereto. Moreover, these emails were treated like all other forms of written communication in that they were maintained and produced in responses to the Shelton Plaintiffs' FOIA request.

ARGUMENT

I. THE CIRCUIT COURT ERRED IN HOLDING THAT THE EXCHANGE OF ORDINARY EMAIL CORRESPONDENCE CONSTITUTES A "MEETING" FOR PURPOSES OF FOIA

By its plain terms, FOIA prohibits meetings but does not prohibit correspondence. In ruling that the exchange of correspondence over a period of hours or days constitutes a prohibited "meeting" under FOIA, the Circuit Court erred. Indeed, the Shelton Plaintiffs conceded at trial that the Court's ruling in this regard constituted "new law",[fn6] and Virginia law is clear that the courts are not permitted to create "new" FOIA law, but are to apply the statute as enacted by the General Assembly.

Virginia's FOIA statute creates two regimes for regulating public access to the workings of government, one for public records and a separate one for the conduct of meetings by public bodies. With respect to public records, FOIA provides public access by permitting the public to inspect and/or copy such public records, subject to exceptions not relevant here. See Va. Code Ann. §2.2-3704 ("Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. . . ."). There is no question that email correspondence falls within the definition of public records, nor is there any question that emails are producible to a citizen of the Commonwealth in response to a FOIA request.[fn7] Indeed, the Shelton Plaintiffs obtained the emails at issue in this appeal because Mayor Beck, Vice Mayor Howson, and Councilmember Kelly complied with their obligations under FOIA to provide such public records in response to the Shelton Plaintiffs' FOIA request.[fn8] Thus, members of public bodies are permitted under FOIA to exchange correspondence on matters of public business, but the public is entitled to receive copies of such correspondence in response to a FOIA request.

By contrast, the public's interests with respect to meetings are protected by the provisions in FOIA that require local governments, with certain enumerated exceptions, to conduct their meetings in a manner open to the public. See Va. Code Ann. §2.2-3707 ("All meetings of public bodies shall be open, except as provided in § 2.2-3711"). In finding for the Shelton Plaintiffs with respect to Count XI of the complaint, the Circuit Court applied the incorrect provisions of FOIA to the email correspondence at issue. Under FOIA's plain terms, the exchange of correspondence by members of a public body is permissible, though subject to production in response to a FOIA request, an obligation with which Mayor Beck, Vice Mayor Howson, and Councilmember Kelly fully complied. However, by exchanging ordinary email correspondence, Mayor Beck, Vice Mayor Howson, and Councilmember Kelly did not conduct a "meeting," as that term is defined in FOIA. Therefore, the Court should reverse the Circuit Court's ruling that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly were prohibited by FOIA's open meeting provisions from exchanging email correspondence concerning a vacancy on the Library Board.

A. The Plain Language of FOIA Does Not Include the Ordinary Exchange of Email Correspondence Within the Definition of "Meeting"

The undisputed record at trial demonstrates that the email correspondence in question with respect to Count XI of the complaint were garden-variety emails, with periods of many hours, or even days, elapsing between the transmission of an email and any response to that email. J.A. 382-403, 543. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly were not simultaneously deliberating or discussing any issue. Rather, as with any form of ordinary written correspondence, each addressee retrieved correspondence sent to him at a time that was personally convenient, and either did not reply or sent responding correspondence at a convenient time. The Circuit Court ruled that this intermittent exchange or ordinary email correspondence constituted a "meeting" under FOIA, a ruling that is contrary to FOIA's stated definition of the term "meeting."

This Court's cardinal instruction with respect to FOIA is that Virginia courts are not to rewrite the statute. Rather, courts are to apply the FOIA statute as written, leaving any expansion or contraction of the statute's scope to the considered judgment of the General Assembly. Roanoke City School Bd. v. Times-World Corp., 226 Va. 185, 191, 307 S.E.2d 256,258 (1983) (observing that expansion or contraction of FOIA "cannot be done by judicial fiat"). Thus, a determination of whether written correspondence transmitted by email constitutes a meeting must begin, if not end, with the plain language of the statute.

Section 2.2-3708 of FOIA provides as follows:

It shall be a violation of this chapter for any political subdivision or any governing body. . . to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically assembled. . . .

Va. Code Ann. 92.2-3708 (emphasis added). Thus, there can be no violation of the electronic meeting provisions of FOIA unless all of the following are true: (1) there was a "meeting"; (2) the meeting involved the discussion or transaction of public business; and (3) the meeting occurred through telephonic, video, electronic, or other means where the members were not physically assembled. Because the email correspondence at issue in this appeal was not a meeting, there can be no violation of §2.2-3708.

The FOIA statute defines the term "meeting" as:

[T]he 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

Va. Code Ann. §2.2-3701 (emphasis added).

Notably, the term "meeting" is not defined to include written correspondence such as emails, leading to the inescapable conclusion that the exchange of email correspondence, like the exchange of correspondence through the mails, does not qualify as a "meeting." Moreover, the plain language of the FOIA statute provides that a "meeting" cannot exist unless either the public body is physically sitting, or sitting as a body through telephonic or video equipment, or where there is an informal assemblage of three or more members of the public body. Thus, even if the mode of communication is electronic, informal communications among three or more members of a public body are not within the definition of "meeting" unless the members of the public body are assembled together.

While it conceivably could constitute an "assemblage" if City Council members entered a chat room for the purpose of simultaneously sending messages back and forth, or if they all agreed to log into their email systems at a predetermined time to exchange written thoughts on a matter of public business,[fn9] there is no assemblage of the City Council members when email messages are transmitted several hours apart, with each recipient receiving the message at different times depending on when he accessed his email account.[fn10] In  such a circumstance, which is what occurred here, the exchange of written correspondence transmitted by email is indistinguishable from the exchange of written correspondence through the mails or by messenger. To hold otherwise would write the concept of an "assemblage" completely out of the FOIA statute, and would lead to the inescapable (and absurd) conclusion that even letters mailed to multiple members of a public body would constitute "meetings" as well.[fn11]

B. Section 2.2-3710(B) of FOIA Specifically Permits the Email Correspondence at Issue

As discussed above, a plain reading of FOIA demonstrates that there is no prohibition on the exchange of ordinary email correspondence by members of a public body. FOIA only prohibits electronic meetings, and meetings only occur when a public body is physically sitting or three or more members are informally assembled, neither of which occurs by the mere exchange of email correspondence. Reinforcing this concept, § 2.2-371O(B) of FOIA expressly permits members of public bodies to contact each other - even electronically - to ascertain their positions on issues of public business in terms that further demonstrate that the exchange of correspondence does not constitute a meeting. Section 2.2-3710(B) provides as follows:

Notwithstanding the foregoing, nothing contained herein shall be construed to prohibit (i) separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business, whether such contact is done in person, by telephone or by electronic communication, provided the contact is done on a basis that does not constitute a meeting as defined in this chapter . . . ..

Va. Code Ann. § 2.2-3710(B) (emphasis added). The FOIA statute expressly contemplates that members of public bodies might communicate electronically with respect to the members' positions on matters of public business, and expressly sanctions such communications so long as the communications do not occur in the context of a meeting. Therefore, non-simultaneous communications such as the serial emails here - separated as they are by hours or days between responses - are expressly authorized by the statute.

Indeed, the legislative history of this provision demonstrates the General Assembly's understanding that the exchange of correspondence - even electronic correspondence - by three or more members of a public body is not prohibited by FOIA. Section 2.2-3710(B) was taken, word-for-word, from what used to be § 2.1-343.2 of FOIA. In 2001, the General Assembly amended § 2.1-343.2 to expressly recognize that FOIA permitted members to separately contact the membership, or any part thereof, to discuss a member's position on a matter of public business regardless of "whether the contact is done in person, by telephone or by electronic communication." Va. Code Ann. §2.2-3710(B).

The first draft of that bill- Senate Bill No. 1322 - also added the caveat that such communications were permissible "provided the contact is done on a one-to-one basis.'"[fn12] However, on February 2, 2001, the Senate struck the words "one-to-one basis" and instead inserted language permitting such communications "provided the contact is done on a basis that does not constitute a meeting as defined in this chapter."[fn13] Through that amendment, the General Assembly changed 9 2.1-343.2 from a statutory provision that permitted members to exchange their position on an issue only if done on a one-on-one basis to a statutory provision that permitted such communications so long as the communications did not occur in the context of a meeting as that term is defined in FOIA. By amending, and ultimately enacting, Senate Bill 1322 in such a fashion, the General Assembly explicitly declined to prohibit three or more members from exchanging their views on a matter of public business through the exchange of electronic correspondence, and instead prohibited such conduct only when the communications occur in the context of a meeting. If any exchange of correspondence among three or more members of a public body constituted a meeting under FOIA, the General Assembly would have had no reason to delete the "one-to-one" reference from Senate Bill 1322.

Indeed, in his seminal opinion finding that the exchange of ordinary email communications were not subject to FOIA's open meeting requirements, an opinion discussed in greater detail below, the Attorney General of Virginia specifically relied on the language in § 2.2-3710(B) (formerly § 2.1-343.2) that permits members of a public body to communicate with each other through the exchange of correspondence.[fn14] As the Attorney General correctly observed, the provision that is now §2.2-3710(B) specifically contemplates what is clear from FOIA's definition of "meeting" - that the exchange of correspondence does not constitute the conduct of a meeting. By failing to recognize the applicability of § 2.2-371 O(B) to this issue, the Circuit Court erred.

C. The Circuit Court Erroneously Failed to Defer to the Attorney General's Well-Reasoned Opinion that Ordinary Email Correspondence Does Not Constitute a Meeting Under FOIA

Whether the exchange of ordinary email correspondence qualifies as a meeting under FOIA is not a question of first impression in Virginia. The Attorney General of Virginia considered this issue more than three years before the Circuit Court issued its judgment, and the Attorney General correctly observed that email correspondence, like other forms of written correspondence, is subject to production under FOIA but simply does not constitute a meeting for purposes of FOIA's open meeting provisions. By failing to give due deference to the Attorney General's construction of FOIA, the Circuit Court compounded its error in deviating from the statute's plain language.

The Attorney General's 1999 opinion responded to an inquiry from a member of the House of Delegates as to whether FOIA "prohibits an elected member of a local governing body from sending electronic mail communications to three or more members of the governing body." 1999 Va. Op. Atty. Gen. 12, 1999 WL 463384, at *1 (Jan. 6, 1999). After summarizing the provisions of FOIA applicable to this inquiry, the Attorney General concluded that email correspondence was just another form of written communication and, like all other forms of written communication, the exchange of ordinary email correspondence does not constitute a "meeting" under FOIA:

Section 2.1-343.1(A)[fn15] clearly prohibits a local governing body from "conduct[ing] a meeting" through any "communication means" other than the physical assembly of its members. It does not, however, prohibit all forms of communication among the members of a local governing body when that body is not physically assembled or sitting. In fact, § 2.1-343.2 expressly provides that, while the transaction of public business must be authorized by votes

taken at public meetings, this requirement is not to be construed "to prohibit separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business."

. . . .

Transmitting messages through an electronic mail system is essentially a form of written communication and, in my opinion, does not constitute "conduct[ing] a meeting. . . through. . . electronic. . . means" as contemplated by § 2.1-343.1 (A). Accordingly, it is my opinion that §2.1-343.1 (A) does not bar members of a local governing body from sending electronic mail communications to other members of the governing body. All official actions of the governing body must, however, take place at a meeting where the membership is physically present.

Id at *1-2 (emphasis added) (footnotes omitted). Thus, the Attorney General opined that the exchange of emails through "the basic type of electronic mail system commonly in use today" does not constitute a meeting for purposes of FOIA. Id at *2 n.5.[fn16]

In rejecting the Attorney General's considered opinion that ordinary email correspondence does not constitute a prohibited "meeting" under FOIA, the Circuit Court erred in two respects. First, the Circuit Court's ruling ignores the persuasive reasoning of the Attorney General's opinion, which recognizes that the plain language of FOIA requires the assembly of members of a public body before a meeting occurs. By focusing instead on whether the correspondence was sent for the purpose of forming consensus, see J.A. 659, the Circuit Court's ruling completely writes the concept of assemblage out of the statute's definition of "meeting." See Roanoke City School Bd, 226 Va. at 191-92, 307 S.E.2d at 258-59 (emphasizing that a meeting does not occur for purposes of FOIA unless the members are sitting as a body or informally assembled). Without an assemblage of three or more members, there is no meeting. Here, there was no more of an assemblage of City Council members than there is when letters are sent to multiple City Council members through the mails, by facsimile, or by messenger.[fn17]

Second, the Circuit Court disregarded the bedrock principle that the Attorney General's construction of a statute is entitled to deference by the courts. The General Assembly is presumed to be aware of Attorney General opinions interpreting Virginia statutes. Browning-Ferris, Inc. v. Commonwealth, 225 Va. 157, 161,300 S.E.2d 603, 605 (1983). The failure of the General Assembly to override an Attorney General's opinion through legislative amendment is strong evidence that the Attorney General's interpretation is correct, justifying a high degree of judicial deference to the Attorney General's construction of a statute. Id. Prior to the Circuit Court's ruling, the Attorney General's opinion that the exchange of ordinary emails does not constitute a meeting was a settled principle of Virginia law, a principle the General Assembly has seen no reason to disturb. The General Assembly's failure to override the Attorney General's opinion through amendment of FOIA, even though FOIA was amended in several other respects in 2001, strongly suggests that the Attorney General was correct in his view that ordinary emails are simply a form of written correspondence and do not constitute a meeting under FOIA.

Indeed, the Attorney General is far from alone in his view that ordinary email correspondence is simply a form of written communication and does not constitute a "meeting" under FOIA. In considering precisely the same issue, the Maryland Attorney General reached the same commonsense conclusion that the exchange of email correspondence does not constitute the conduct of a "meeting":

We see no reason to reach a different conclusion when the medium of sequential exchange is electronic mail, rather than conventional writings. On the facts as we understand them, each member of the [public body] opened the electronic folder containing his or her e-mail at a convenient time, much as the member would open an envelope containing writings. The member would then reply in writing, treating the previously received message no differently than if the communication had arrived in the mail. In this respect, the e-mail exchanges were substantively indistinguishable from letters or memoranda. The difference, of course, is that e-mail drastically shortens the transmission time for the messages and permits easier distribution to a group of recipients, e-mail thus encourages the sharing of ideas. But in terms of the Open Meetings Act, there is still no "conven[ing of] a quorum of a public body. "

1996 Md. Op. Atty. Gen. 96-016, 1996 WL 305985, at *2-3 (May 22,1996) (citations and internal quotations omitted).[fn18] See also Ark. Op. Atty. Gen. 99-018,1999 WL 182169, at *2 (Mar. 22, 1999) ("With regard to e-mail between two members, I agree. . . that there is no meeting if one member of the governing body simply sends an e-mail to another member. In my view, this would be analogous to written correspondence." (internal quotations omitted)); N.D. Op. Atty. Gen. 98-0-05, 1998 WL 1057738, at *4 n.8 (Mar. 3, 1998) ("Unlike telephone conversations, e-mail messages or letters between Board members are records subject to the open records and records retention laws, but are not a 'gathering' of Board members.").[fn19] Thus, the Circuit Court erred in declining to defer to an Attorney General's construction of FOIA that is not only faithful to the plain meaning of the text, but also is consistent with the manner in which other states have construed their open meeting laws.

D. The Circuit Court's Ruling is Inconsistent with the Structure and Purposes of the FOIA Statute

In addition, the Circuit Court's treatment of the exchange of email correspondence is inconsistent with the structure and purpose of FOIA. FOIA guarantees public access to written records by allowing citizens of this Commonwealth to inspect and/or copy such records, subject to narrow exceptions not relevant here. Like any other paper or electronic record, email communications must be retained under FOIA and are producible to interested members of the public.[fn20] Indeed, Mayor Beck, Vice Mayor Howson, and CounciImember Kelly complied with their obligation under FOIA to make email records dealing with matters of public concern available to the Shelton Plaintiffs in response to a FOIA request.[fn21] By granting the public a right of access to email correspondence, the General Assembly has protected the public's right to obtain information concerning the workings of local government.

Meetings, by contrast, are inherently different from letters, emails, and other types of paper and electronic records, justifying different treatment of such conduct under FOIA. Meetings do not necessarily result in recordings of what was said. As a result, meetings do not, by their nature, guarantee that the public can obtain a perfectly accurate record of what transpired during a meeting after the fact. For instance, participants in a meeting can have conflicting or imperfect recollections of the subjects discussed, or might even lie about the matters discussed, and the absence of a definitive record makes it impossible for the public to learn with precision exactly what is discussed in a non-public meeting. The General Assembly dealt with the imperfect record of the conduct of meetings by requiring that meetings be announced in advance and open to the public unless a specific exemption applies.[fn22]

Email correspondence, however, is identical  to written correspondence and any other paper or electronic record in that there exists a perfect record of exactly what was conveyed in the correspondence at issue. Thus, it makes sense within the structure of FOIA that the statute would prohibit most forms of closed meetings but would not prohibit the exchange of email correspondence, as the public has the ability to learn precisely what was discussed in an exchange of email correspondence because such communications result in a paper and/or electronic record that is subject to inspection and production to the public under FOIA. Given that email correspondence creates a written record, it is hardly surprising that the General Assembly would protect the public's interest by granting access to copies of such correspondence, while requiring that modes of communication that do not produce an accessible written record (i.e., meetings) be conducted in a public forum.[fn23]

Moreover, the Circuit Court's ruling actually has the effect of impeding good government when the basic purpose of FOIA is to foster good government by making local government officials more accessible to their constituents. Email is an effective means for constituents to communicate with public officials; it is both easy and inexpensive. Yet, the Circuit Court's ruling would considerably reduce the efficacy of email as a means of making local government officials more responsive to the citizenry.

Suppose that a citizen sends an email to three or more members of the Fredericksburg City Council on a matter of public business. If Mayor Beck responded solely to the constituent by email, and stated his position or views on the issue raised in the constituent's email, there certainly would be no FOIA violation because there were not three or more members of the City Council copied on the responsive email. Yet, if Mayor Beck copied his response to the constituent on the other members of the City Council, under the Circuit Court's reasoning he would run the risk that a judge would fmd such correspondence to constitute a "meeting" under FOIA, even though no simultaneous deliberation occurred and the email correspondence resulted in a producible record of what was said. Thus, the Circuit Court's construction of FOIA would permit Mayor Beck to respond to the inquiring constituent, but would place him at risk of violating FOIA if he shared his response with the other members of the City Council, even the other City Council members who were addressees on the constituent's original email. Such a rule of law would result in local government officials being less informed and less responsive to the legitimate needs of their constituents, a result plainly at odds with FOIA's purpose of promoting local government that is responsive to the people. See Va. Code Arm. § 2.2-3700 ("This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with citizens of the Commonwealth. ").

For all of these reasons, the Court should reverse the Circuit Court's entry of summary judgment in favor of the Shelton Plaintiffs with respect to Count XI, and should remand the action to the Circuit Court with instructions to enter summary judgment on Count XI in favor of Mayor Beck, Vice Mayor Howson, and CounciImember Kelly.

II. THE SHELTON PLAINTIFFS' ASSIGNED CROSS-ERRORS LACK MERIT[fn24]

A. The Circuit Court Correctly Ruled that FOIA's Open Meetings Provisions Do Not Apply to Members-Elect

Counts I through IX of the Shelton Plaintiffs' complaint alleged eight email "meetings" and one face-to-face meeting involving Mayor Beck, Vice Mayor Howson, and Councilmembers Kelly, Fortune, and Withers, all of which occurred in their entirety prior to Councilmembers Kelly, Fortune, and Withers first taking office on the City Council. Thus, the communications alleged involved not three or more members of the City Council (the minimum number of participants for a "meeting" under FOIA), but only two members of the City Council- Mayor Beck and Vice Mayor Howson - and three members-elect who had not yet taken office. See J.A. 292-95. The Circuit Court granted the councilmembers' demurrer as to Counts I-IX on this basis: "Any communication[ s] to or from councilmen-elect. . . are not subject to the purview of the Freedom of Information Act." J.A. 294-95.

The Circuit Court's finding in this regard is plainly correct, as FOIA's open meetings provisions, by their terms, apply only to the conduct of actual members of a public body. As members-elect, who had not taken the oath of office, Councilmembers Kelly, Fortune, and Withers were not yet qualified to hold office, and did not hold office, at the time of the communications alleged. Because a meeting requires the participation of at least three full-fledged members of a public body, no meeting occurred with respect to Counts I-IX of the Shelton Plaintiffs' complaint.

1. By Its Terms, an Informal Gathering Can Constitute a Meeting Under FOIA Only If at Least Three Actual Members of the Public Body Are Present

In reviewing the Circuit Court's order sustaining the councilmembers' demurrer, the Court should consider "as true all material facts alleged in the motion for judgment, all facts impliedly alleged, and all reasonable inferences that may be drawn from the alleged facts." See Robinson v. Matt Mary Moran, Inc., 259 Va. 412, 414,525 S.E.2d 559,561 (2000). There are only two relevant facts here, neither of which is controverted: (1) Counts I-IX of the Shelton Plaintiffs' complaint alleges supposed meetings that occurred among Mayor Beck, Vice Mayor Howson, and Councilmembers Kelly, Fortune and Withers solely prior to July 1, 2002; and (2) prior to July 1, 2002, only Mayor Beck and Vice Mayor Howson were members of the City Council. Based on these two undisputed facts, the Court should affIrm the Circuit Court's ruling on the demurrer.

FOIA prohibits public bodies from holding closed meetings. See Va. Code Ann. §2.2-3707(A) ("All meetings of public bodies shall be open, unless a specific exemption applies"). FOIA defines the term "meeting" as:

[M]eetings 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,[[fn25]]) ifl ess than three, of the constituent

membership. . . .

Va. Code Ann. § 2.2-3701 (emphasis added). Thus, an informal gathering cannot constitute an illegal "meeting" under FOIA unless at least three members of the public body are present.

Virginia law could not be clearer, however, that Councilmembers Kelly, Fortune, and Withers were not "members" of the City Council upon their election. They were merely members-elect, and not even qualified to take offIce, until they took the oath of office and began their terms on July 1, 2002. See Va. Code Ann. § 15.2-1522 ("Every elected county, city, town, and district offIcer, unless otherwise provided by law, on or before the day on which his term of offIce begins, shall qualify by taking the oath. . . ."). Thus, as a matter of law, three of the five alleged participants in the "meetings" set forth in Counts I-IX were not members of the City Council. As such, there could be no meeting and no violation of FOIA.

The Circuit Court's holding in this regard is consistent not only with the plain meaning of the FOIA statute, but also with the manner in which similar provisions have been applied in other jurisdictions. In Wood v. Battle Ground School District, 27 P.3d 1208, 1215 (Wash. Ct. App. 2001), the court concluded that, for purposes of Washington's open meeting statute, members-elect to a public body were not members of that public body until sworn in, and therefore were not subject to an open meeting provision that by its terms applied to "members":

Although the [open meetings statute] defines "action" broadly, nothing suggests that members-elect have the power to transact a governing body's offIcial business before they are sworn in. Thus, they are not "members" of a governing body with authority to take "action." [Petitioner] contends that applying the [statute] to members-elect is consonant with the legislative purpose. We do not disagree but we concur with the California court that it is for the Legislature, not the judiciary, to determine a basic legislative question such as whether [members-elect are] covered.

Id.

In Wood, the Washington Court of Appeals relied on a decision by the California Court of Appeal holding that an amendment to California's open meeting law extending the statute to members-elect of a public body would not be applied retroactively. See 216 Sutter Bay Assoc. v. County of Sutter, 68 Cal. Rptr. 2d 492,506 (Cal. Ct. App. 1997). The 216 Sutter Bay court came to this conclusion because the pre-amendment California statute, which by its terms applied only to actual members of public bodies, did not regulate the conduct of members-elect. Id.

Thus, like the court in Wood, and the Circuit Court in the present action, the 216 Sutter Bay court correctly observed that it is not the place of the judiciary to rewrite statutes applying only to members of public bodies so that they apply to members-elect as well. Where the statute by its terms applies only to members of a public body, it is the province of the legislature to decide whether the scope of the statute should be amended to cover members-elect, and the courts should not engage in judicial legislation by ignoring the plain meaning of the statute as enacted. See also Tenn. Op. Atty. Gen No. 99-144, 1999 WL 728573, at *2 (July 30, 1999) ("Assuming that a member-elect has not yet qualified for the offIce, such an individual would not be a 'member' of a 'governing body' within the meaning of the Open Meetings Act.").[fn26]

In assigning their cross-errors, the Shelton Plaintiffs sought to avoid this clear and unambiguous application of FOIA by making three arguments. First, the Shelton Plaintiffs claim that the provision in FOIA providing that the statute should be interpreted liberally justifies changing the plain meaning of the definition of "meeting." Second, the Shelton Plaintiffs argue that Va. Code Ann. ~ 2.2-3702, which requires "members-elect" to become familiar with FOIA's terms within two weeks following an election (but before they take office), somehow makes members-elect subject to the statute's open meeting requirements before they begin their term of office. Finally, the Shelton Plaintiffs seek to rely on a clearly inapplicable provision in FOIA providing that citizen members of a subcommittee are subject to FOIA's open meeting requirements. None of these arguments has the slightest merit, and cannot justify departure from the plain meaning of the language chosen by the General Assembly to define the term "meeting."

a. Even a "Liberal" Construction of FOIA Cannot Change the Plain Meaning of its Terms.

The cardinal principle of statutory construction in Virginia is for courts to apply statutes as written. As this Court has stated:

When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutory language. Thus, when the General Assembly has used words that have a plain meaning, courts cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed.

Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680,682 (2002) (citations omitted). Indeed, this Court applied a similar method of construction for FOIA in Roanoke City School Board v. Times-World Corporation, 226 Va. 185, 191,307 S.E.2d 256,258 (1983) (observing that expansion or contraction of FOIA "cannot be done by judicial fiat").

Yet, the Shelton Plaintiffs implore this Court essentially to rewrite FOIA to change the word "members" to "members or members-elect" in FOIA's definition of "meeting" in contravention of the plain meaning of the statute. Even a liberal construction of FOIA cannot change the plain meaning of its terms. See Roanoke, 226 Va. at 191,307 S.E.2d at 258. This is especially true where the General Assembly created rights that do not exist at common law. See Jordan v. Town of South Boston Banks, 138 Va. 838, 122 S.E. 265, 267 (1924) (holding that when there is no preexisting common law a court must apply a statute's text only). By enacting FOIA, the General Assembly established new rights for the public to view the workings of government. See e.g., Roanoke, 226 Va. at 191,307 S.E.2d at 258 ("[T]here is no common law right of the public or press to attend meetings of the governmental bodies."). In doing so, the General Assembly sought to prohibit certain informal meetings of three or more full-fledged, voting members of public bodies, but did not include members-elect within this prohibition. As this Court previously has recognized, it is not the place of the courts to disrupt the balance struck by the General Assembly by creating requirements inconsistent with, or in addition to, the plain language of the text.

b. Members-Elect are Required to Receive and Become Familiar with FOIA So That They are Aware of FOIA's Provisions When They Take Office

Section 2.2-3702 requires candidates for public offices be provided with a copy of FOIA within two weeks of their election. The General Assembly's clear intent in enacting this provision was for members-elect to learn the rules under FOIA before they become members of a public body and subject to those rules; it does nothing to change the substantive scope of FOIA. If anything, § 2.2-3702 demonstrates the General Assembly's awareness of the period between an election and the time when a member-elect takes office. The General Assembly's considered judgment in enacting FOIA was that members-elect should be provided a copy of the FOIA statute, but that FOIA's open meeting requirements should be limited to meetings among actual "members" of the public body. Indeed, it makes no rational sense that the General Assembly would state a specific definition for the term "meeting" under FOIA but then to sub silentio change that definition through a provision that merely requires that victorious candidates be provided with a copy of the statute.

c. There Are No Private Sector Or Citizen Members of the City Council

In assigning their cross-errors, the Shelton Plaintiffs misleadingly claimed that FOIA's definition ofa "public body" supports their position. In defining "public body," FOIA states that the term "shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members." Va. Code Ann. § 2.2-3701. This provision simply means that if a committee of a public body has citizen members, it remains a public body. But this provision does not even apply unless the City Council creates a committee or other entity "to perform delegated functions of the public body or to advise the public body." See Va. Code Ann. § 2.2-3701. The City Council does not have "private sector or citizen members," and the Shelton Plaintiffs have never alleged that such a subcommittee existed. Thus, the definition of "public body" cannot justify rewriting FOIA's definition of "meeting" as requiring the assemblage of three or more actual members of the public body.

B. The Circuit Court Properly Struck the Shelton Plaintiffs' Evidence With Respect to the "Charlotte Street" Gathering

The Shelton Plaintiffs' Second Assignment of Cross-Error asserts that the Circuit Court erred in finding that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly did not violate FOIA by separately attending a citizen-organized gathering on a public street corner to hear citizens' concerns about neighborhood traffic safety. At the close of the Shelton Plaintiffs' evidence, the Circuit Court granted the motion of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly to strike the Shelton Plaintiffs' evidence with respect to Count XVII, and the Circuit Court entered judgment on that count in favor of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly.

In considering a motion to strike plaintiff s evidence, "a [chancellor] should view the evidence adduced at trial. . . accept[ing] as true all the evidence favorable to the plaintiff as well as any reasonable inference [the trier of fact] might draw therefrom which would sustain the plaintiffs cause of action." Polyzos v. Cotrupi, 264 Va. 116, 121,563 S.E.2d 775, 777 (2002) (internal quotations omitted) (alterations in original). This Court applies the same standard in reviewing a Circuit Court's decision to strike the plaintiffs evidence. Id.

Here, the evidence concerning the events occurring at the Charlotte Street gathering is not in dispute. The Shelton Plaintiffs elected to call only three witnesses at trial on this count - Mayor Beck, Vice Mayor Howson, and Councilmember Kelly. The uncontroverted evidence is that: (1) Mayor Beck, Vice Mayor Howson, and Councilmember Kelly were all separately invited to, and separately attended, a citizen-organized gathering in broad daylight on a public street corner where citizens stated their concerns with neighborhood traffic safety; (2) at the gathering, Mayor Beck, Vice Mayor Howson, and Councilmember Kelly did not discuss anything among themselves, but merely listened to and responded to questions and comments from their constituents; and (3) the issues discussed at the gathering were not pending before the City Council and were not likely to be pending before the City Council in the future. Based on this undisputed evidence, the Circuit Court correctly found that the Shelton Plaintiffs had failed to adduce evidence which, if true, would constitute an illegal meeting under FOIA.

1. The Facts Adduced at Trial

In or about July 2002, Mrs. Ruth Fitzgerald, something of a neighborhood activist, contacted her councilmember, Councilmember Kelly, to discuss concerns she and her neighbors had about traffic safety in the vicinity of Charlotte and Weedon Streets in Fredericksburg. J.A. 684, 766. Councilmember Kelly and Mrs. Fitzgerald discussed the possibility of Councilmember Kelly attending a neighborhood meeting on the subject. J.A. 767. Councilmember Kelly told Mrs. Fitzgerald that "if the neighbors would want to have a meeting, I would be happy to attend." J.A. 772.

Councilmember Kelly did not suggest that Mrs. Fitzgerald invite other members of the Fredericksburg City Council, nor did he invite other members of the City Council to the neighborhood gathering. J.A. 767-70. Councilmember Kelly did not know that Mayor Beck would be attending the neighborhood gathering, and he only knew that Vice Mayor Howson might be attending the gathering as a result of having been copied on an email from Mrs. Fitzgerald to her neighbors. J.A. 767-70. Councilmember Kelly invited Doug Fawcett of the Fredericksburg public works department and Pat Baber of the FRED bus system to attend the neighborhood gathering in order to provide general information to Councilmember Kelly's constituents. J.A. 770-71,773.

Vice Mayor Howson, who is a neighbor of Mrs. Fitzgerald, first learned of the neighborhood gathering in an email he received from Mrs. Fitzgerald. J.A. 725, 738. Vice Mayor Howson's understanding was that the gathering was called by his neighbors to discuss their concerns with neighborhood traffic safety in light of the City public works department's decision to deny their request for installation of a four-way stop sign. J.A. 726-27, 738. Vice Mayor Howson knew from Mrs. Fitzgerald's email that Councilmember Kelly was planning to attend the neighborhood gathering, but he was not expecting Mayor Beck to attend the gathering. J.A. 726, 729. Vice Mayor Beck did not discuss the neighborhood meeting in advance with either Mayor Beck or Councilmember Kelly. J.A. 726.

Mayor Beck learned of the neighborhood meeting from a telephone conversation with Mrs. Fitzgerald. J.A. 684. Mrs. Fitzgerald told Mayor Beck that there was a concern in her neighborhood over traffic safety in the vicinity of Charlotte and Weedon Streets and that she and her neighbors planned to hold a meeting on the issue. J.A. 684. Mrs. Fitzgerald later forwarded to Mayor Beck an email she had sent her neighbors concerning the gathering. J.A. 686-87. Mayor Beck's understanding of the purpose of the neighborhood gathering was that "there was concern about traffic, particular concern about the speed of the Fred buses that travel on Charlotte Street, concern about safety at the particular intersection of Charlotte and Weedon, and some of the neighbors wanting to explore ideas of how to improve safety." J.A. 690.

Mayor Beck told Mrs. Fitzgerald that he was not certain he would be able to attend the neighborhood gathering, but that he would try to attend. J.A. 688-89. Indeed, Mayor Beck did not even decide to attend the neighborhood gathering until about five or ten minutes before he actually attended. J.A. 689. While he knew that Mrs. Fitzgerald had invited Vice Mayor Howson and Councilmember Kelly to the neighborhood gathering, he did not discuss the gathering in advance with Vice Mayor Howson or Councilmember Kelly. J.A. 689, 704.

The Charlotte Street gathering took place at all times in broad daylight on the corner of Charlotte and Weedon Streets. J.A. 694-95, 737-38. Councilmember Kelly was the first to arrive at the Charlotte Street gathering. I.A.770. After several neighbors had arrived, as well as city employees Doug Fawcett and Pat Baber, Vice Mayor Howson was the second member of the City Council to arrive. J.A. 725, 770. As discussed above, neither Councilmember Kelly nor Vice Mayor Howson expected Mayor Beck to attend the citizen-organized gathering. 1.A. 729, 769. Mayor Beck arrived about fifteen minutes after the gathering had begun and greeted his constituents. J.A. 694, 725, 758. A total of fifteen or twenty persons attended the gathering, most of whom lived in the vicinity of the corners of Charlotte and Weedon Streets. lA. 692, 715.

At the gathering, several of the neighbors discussed potential ways to improve traffic safety at the intersection, including the possibility of a stop sign, speed bumps and other traffic calming devices. J.A. 695, 712, 772. Councilmember Kelly asked Doug Fawcett of the public works department to give an informational presentation to the neighbors about traffic controls. J.A. 773. Pat Baber of the FRED bus system drove a city vehicle down Charlotte Street at twenty-five miles per hour so that the gathered citizens could see how fast a vehicle looked when it was driving at the posted speed limit. J.A. 700. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly responded to questions and suggestions from various constituents. J.A. 728. As Vice Mayor Howson testified, "Periodically one of us would offer a suggestion or answer a question. That was how the afternoon went." J.A. 757. In further uncontroverted testimony, Vice Mayor Howson described the gathering as follows:

What I remember, again, there was maybe 20 people, maybe more than that, standing around and talking. And other than a very brief time when Mr. Faucett [sic] was addressing the group, the rest of the time it was like a party. You know, there were - two or three of us would be having conversations around - talking about what if we do this, what if we do that?[fn27]

J.A. 759-60. While Mayor Beck, Vice Mayor Howson, and Councilmember Kelly all at various times made comments to the gathered attendees, they did not have a conversation among themselves or direct their comments at each other. J.A. 706-07, 716, 754-55.

The evidence also was uncontroverted that nothing concerning traffic controls at Charlotte and Weedon Streets was pending before the City Council, nor was there likely to be any such matters pending before the City Council.[fn28] At a subsequent City Council meeting, Councilmember Kelly mentioned that he had attended the Charlotte Street gathering and the City staff was asked to look into traffic issues in general in Fredericksburg neighborhoods. JA. 777. The City Council has not taken up any business concerning traffic control issues.

2. The Undisputed Facts Adduced at Trial Fail as a Matter of Law to Constitute a Violation of FOIA's Open Meetings Provisions

As set forth above, the Charlotte Street gathering was nothing more than elected officials separately attending a citizen-organized meeting, on a public street corner, in order to hear the concerns of their constituents. This is a quintessential act of good government, the kind of good government that FOIA is intended to foster. The attendance by Mayor Beck, Vice Mayor Howson, and Councilmember Kelly at the Charlotte Street gathering was permissible for at least three reasons: (1) FOIA specifically provides that the statute shall not be construed to discourage free discussion between public officials and their constituents; (2) the issues discussed at the Charlotte Street gathering do not constitute "public business"; and (3) the undisputed evidence is that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly did not discuss anything with each other at the Charlotte Street gathering.

a. The FOIA Statute Explicitly Provides That It Shall Not Be Construed To Limit Constituents' Access To Their Elected Officials

Given the trial record, no FOIA violation can be found with respect to the Charlotte Street gathering unless FOIA is construed to prohibit three or more members of a public body separately (and without discussions among themselves) deciding to attend a gathering organized by citizens which takes place in broad daylight on a public street corner. Virginia Code § 2.2-3700 provides as follows:

This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

Va. Code Ann. §2.2-3700.

The gathering that occurred at Charlotte Street was not a meeting of the City Council, or even a meeting of three or more members of the City Council. It was a gathering of the people, organized by the people, to discuss a matter that was important to them. That three members of the City Council separately decided to attend - not to discuss matters among themselves, but to discuss matters with their constituents - is a testament to their responsiveness to the people, and cannot provide the basis for finding a FOIA violation. That the Shelton Plaintiffs' construction of FOIA is inconsistent with the dictate of §2.2-3700 becomes clear when considering the Shelton Plaintiffs' trial court argument as to what should have happened at Charlotte Street:

What should have happened in this case is Mayor Beck had no business at all attending that meeting knowing that the other councilmembers were going to be there and knowing the purpose of the meeting. . . .

J.A. 784. Nothing could do more to "discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth," Va. Code Ann. § 2.2-3700, than to construe FOIA to require the mayor of a city to refuse to talk to constituents on a public street corner because two other members of the City Counsel [sic] also had been invited to talk to citizens (at a citizen-organized gathering) at the same location. This is exactly the type of wrongheaded interpretation that the General Assembly sought to avoid through § 2.2-3700.

b. The Charlotte Street Gathering Did Not Involve the Transaction or Discussion of "Public Business"

FOIA provides as follows concerning the requirement that meetings of public bodies be open to the public:

Nothing in this chapter shall 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 or (ii) at a public forum. . . the purpose of which is to inform the electorate and not to transact business or to hold discussions relating to the transaction of public business. . .

Va. Code Ann. § 2.2-3707(G). Mayor Beck, Vice Mayor Howson, and Councilmember Kelly attended a citizen-organized gathering to hear citizen comments about traffic safety and the potential for the placement of a stop sign at the corner of Charlotte and Weedon Streets. The undisputed evidence at trial is that the City Council did not have any business pending before it on the issue of traffic controls, nor was it likely to have such matters come before it in the future. J.A.738-39. In WDBJ Television, Inc. v. Roanoke County Bd. of Supervisors, 1985 WL 306914 (Va. Cir. Ct., Roanoke County, Oct. 2, 1985), the Circuit Court for Roanoke County sensibly determined that an issue is a matter of "public business" for purposes of FOIA only if the issue will be or is likely to be voted on by the public body. Id. at * 1. The Court should adopt that reasonable interpretation of FOIA. Because the subject of the discussions at Charlotte Street had nothing to do with likely City Council business, § 2.2-3707(G) explicitly permits the attendance of three or more members of the City Council at such a public forum.

c. The Charlotte Street Gathering Was Not a Meeting of a Public Body

The trial evidence notably lacks any evidence that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly discussed anything with each other. Rather, the uncontroverted evidence is that the three members of the City Council arrived separately and milled around talking to the approximately twenty citizens who had congregated on the corner of Charlotte and Weedon Streets. While Mayor Beck, Vice Mayor Howson, and Councilmember Kelly all at various times made comments to the assembled citizens, they did not speak with each other or deliberate together on any issue, much less an issue of public business. FOIA's purpose is to prevent local government from being conducted in secret. Va. Code Ann. §2.2-3700. The Charlotte Street gathering not only occurred in broad daylight, but also did not result in Mayor Beck, Vice Mayor Howson, and Councilmember Kelly discussing or deliberating on any issue together, and therefore cannot be the basis for a supposed illegal meeting of the City Council.

C. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly Were Entitled to Entry of Judgment In Their Favor With Respect to Count XIV

The Circuit Court entered judgment in favor of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly with respect to Count XIV of the Shelton Plaintiffs' complaint, finding that the email communications in question did not involve the discussion of public business, but instead were mere exchanges of information. See J.A. 666-71. In so holding, the Circuit Court apparently determined that a communication does not relate to the discussion or transaction of public business when the purpose of the communication is to exchange information, while communications designed to create consensus did constitute the discussion or transaction of public business. See Va. Code Ann. § 3707(G) (providing that nothing in FOIA shall be construed to prohibit members of a public body from gathering "where no part of the purpose of the gathering or attendance is the discussion or transaction of any public business").

As Mayor Beck, Vice Mayor Howson, and Councilmember Kelly noted in their petition for appeal, the Circuit Court's distinction between communications designed to exchange information and communications designed to form consensus is a vague and unworkable standard that is found nowhere in FOIA's text. Nevertheless, the Circuit Court's entry of judgment in favor of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly may be affirmed as to Count XIV, without addressing the correctness of the Circuit Court's reasoning, because the correspondence in question unquestionably does not constitute a "meeting" under FOIA.

Count XIV alleged supposed ..email meetings," even though the communications involved were ordinary email correspondence with a lengthy passage of time between the transmission of an email and any response thereto. See J.A. 452-510,545. For the reasons set forth in connection with Count XI, a prohibited closed meeting occurs under FOIA only when there is an "assemblage" of three or more members of the public body. See Va. Code Ann. § 2.2-3700 (defining "meeting" under FOIA). The exchange of garden-variety email correspondence over a period of days does not involve the assemblage of the members of a public body and does not constitute a "meeting." Therefore, Mayor Beck, Vice Mayor Howson, and Councilmember Kelly were entitled to judgment on Count XIV because the correspondence at issue fails as a matter of law to constitute a "meeting."

CONCLUSION

For the foregoing reasons, the Court should reverse the Circuit Court's entry of judgment in favor of the Shelton Plaintiffs with respect to Count XI of the Shelton Plaintiffs' complaint. The Court also should reject the Shelton Plaintiffs' assignments of cross-error.

Respectfully submitted,

Howard H. Stahl

Steven K. Davidson (VSB #25210)

John F. O'Connor

Michael J. Baratz

STEPTOE & JOHNSON LLP

1330 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 429-3000

Attorneys for Appellants Mayor Bill

Beck, Vice Mayor Scott Howson, and

Councilmember Matt Kelly

______________________________

1. Ironically, the potential nominee whose name was mentioned in the email was never nominated to the library board because, as the City Council members discovered through the course of their written email correspondence, the potential nominee was not eligible as he did not live in the City of Fredericksburg.

2. The Court denied the Shelton Plaintiffs' motion for partial summary judgment against Councilmembers Tom Fortune and William Withers, and dismissed those two councilmembers on the basis that neither had authored any ofthe email communications at issue in Count XI. J.A.795.

3. The Court also granted the Shelton Plaintiffs' assignments of cross-error. The circumstances surrounding the Shelton Plaintiffs' assigned cross-errors are set forth, infra, in the portion of the argument addressing the Shelton Plaintiffs' assignments of cross-error.

4. The chart excludes emails sent to only one other member of the City Council because, even under the Circuit Court's reasoning, one-to-one email correspondence does not constitute a "meeting" under FOIA. See Va. Code Ann. § 2.2-3700 (defming "meeting" to require an assemblage of at least three members of the public body).

5. Councilmembers Fortune and Withers were named as defendants in the Circuit Court. By electing not to notice an appeal in their own right, the Shelton Plaintiffs were unable to bring Councilmembers Fortune and Withers before the Court with respect to the Shelton Plaintiffs' assignments of cross-error. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly have moved to dismiss the Shelton Plaintiffs' first and third assignments of cross-error on that basis.

6. See Trial Trans., Vol. II, at 10 (Dec. 13,2002) (statement of counsel for the Shelton Plaintiffs) ("The Court has made, in its ruling of summary judgment on Count 11, made new law; we concede that.").

7. See Va. Code Ann. §2.2-3701 (defining "public records" to include writings "set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored").

8. See Va. Code Ann. §2.2-3704 (mandating that "any public body that is subject

to [FOIA] . . . shall promptly" respond to a citizen's request for public records).

9. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly take no position as to whether chat room communications or pre-planned simultaneous email communications would constitute meetings under FOIA, and the Court need not resolve this question in considering this appeal. Here, there was no simultaneous communication, or anything close to it, but rather the ordinary exchange of written correspondence via email.

10. Indeed, the trial record unequivocally demonstrates that respondents were not communicating via chat room or any other electronic device that permitted simultaneous deliberation or discussion; rather, the communications were by ordinary email. See I.A. 543.

11. If the concept of assemblage is read out of the FOIA statute's definition of the term "meeting," such that a meeting occurs whenever three members of a public body communicate on an issue of public business, a City Council member would appear to violate FOIA even by mailing a letter to two other members of the City Council, as such an action would violate the open "meeting" provisions ofFOIA section 2.2-3707. See Va. Code Ann. § 2.2-3707(A) ("All meetings of public bodies shall be open, except as provided in § 2.2-3711."). This is the type of absurd result that follows from the Circuit Court's erroneous construction of the term "meeting" as it is used in FOIA.

12. See S. Bill 1322 (Ian. 12,2001), available at http://leg1.state.va.us/cgi-

bin/legp504.exe?011+ful+SB1322.

13. See S. Bill 1322 (as amended Feb. 2,2001), available at http://leg1.state.va.us/

cgi-bin/legp504.exe?011+ful+SB1322E.

14. 1999 Va. Op. Atty. Gen. 12,1999 WL 463384, at *1 (Jan. 6, 1999) ("In fact, §2.1-343.2 expressly provides that, while the transaction of public business must be authorized by votes taken at public meetings, this requirement is not to be construed 'to prohibit separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business. "').

15. The Attorney General's citations are to the FOIA statute as it existed prior to the amendment of the statute in 2001. There is no substantive difference between the provisions of the FOIA statute cited by the Attorney General and the analogous provisions of the current FOIA statute. The provisions to which the Attorney General cited in his opinion currently are found at Va. Code Ann. § 3707(A) and § 3710(B).

16. For purposes of clarity, the Attorney General's opinion defines "electronic mail" as follows:

Electronic mail is commonly understood to be the electronic transmission of keyboard-entered correspondence over communication networks. An electronic mail system enables the sender to compose and transmit a message to a recipient's mailbox, where the message is stored until the recipient retrieves it. The message may be sent to several recipients at the same time.

1999 Va. Op. Atty. Gen. 12, 1999 WL 463384, at *1-2 (footnotes omitted). Thus, in finding that emai} correspondence is not prohibited by FOIA, the Attorney General explicitly recognized that email, like letters, could be sent to more than one recipient.

17. Moreover, as discussed below, § 2.2-371O(B) ofFOIA expressly permits members of a public body to contact each other, even electronically, to ascertain the members' position on an issue, so long as no meeting occurs.

18. The Maryland Attorney General did observe, however, that a violation of Maryland's Open Meetings Act could occur if e-mail were used for simultaneous communication and deliberation:

If the members of a public body are able to use e-mail for "real time" simultaneous interchange, the result would be different. Then the analogy would be to a telephone conference call, the hallmark of which is the capacity for immediate group interaction and which can constitute a "meeting" under the Open Meetings Act. But that is not what occurred here.

1996 Md. Opp. Atty. Gen. 96-016, 1996 WL 305985, at *3 (citation omitted). Like the Maryland Attorney General, the Court need not reach the issue of "simultaneous interchange" by email because, with respect to Count 11, the shortest time between transmission of an email and a response to that email was more than four hours. See J.A. 390,543.

19. In Woodv. Battle Ground School District, 27 P.3d 1208, 1212 (Wash. Ct. App. 2001), the court held that an exchange of emails among public officials could constitute a "meeting." However, the Washington open meetings law is fundamentally different trom Virginia's in that the Washington statute defines meeting simply as "meetings at which action is taken." Id. at 1216 (citing Wash. Rev. Code § 42.30.020(4)). Indeed, the Wood court explicitly rested its holding on the Washington statute's "broad definition of 'meeting,'" and recognized that other states have narrower defmitions of the tenn "meeting." Id. at 1216-17. By contrast, in enacting Virginia's FOIA statute, the General Assembly explicitly defmed "meeting" so as to require an "assemblage" of members for an infonnal meeting to occur. Thus, in order to find that the exchange of ordinary email constitutes a "meeting" under Virginia's FOIA statute, the Court would have to disregard the General Assembly's decision to incorporate the concept of "assemblage" in the meeting definition. Moreover, unlike the present action, the Washington court was not faced with an Attorney General's opinion directly on point, an opinion the General Assembly had not chosen to overrule through amendment of Virginia's FOIA statute.

20. See Va. Code Ann. § 2.2-3701 (explicitly including "electronic recordings" in the definition of "public record"); id. § 2.2-3704 (granting public the right to inspect public records). The Attorneys General of Arkansas and North Dakota, in finding that email correspondence does not constitute a "meeting" under those states' FOIA  statutes, explicitly noted that email correspondence instead was subject to inspection and production like all other fonns of public records. See Ark. Op. Atty. Gen. 99-018, 1999 WL 182169, at *2 ("The electronically stored e-mail message would be a 'public record' subject to disclosure. . .. The e-mail message itself would not, however, be a 'meeting."'); N.D. Op. Atty. Gen. 98-0-05,1998 WL 1057738, at *4 n.8 ("Unlike telephone conversations, e-mail messages or letters between Board members are records subject to the open records and records retention laws, but are not a 'gathering' of Board members.").

21. See Va. Code Ann. § 2.2-3704 (obligating public bodies to respond to a citizen's request for public records); see also J.A. 28.

22. Va. Code Ann. § 2.2-3707(A).

23. See Va. Code Ann. § 2.2-3700 ("By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.").

24. Mayor Beck, Vice Mayor Howson, and Councilmember Kelly have moved to dismiss the Shelton Plaintiffs' first and third assignments of cross-error for failure to join necessary parties to this appeal, namely Councilmembers Fortune and Withers. Because the Court has not ruled on the motion to dismiss, Mayor Beck, Vice Mayor Howson, and Councilmember Kelly address the merits of these assignments of cross-error in this brief, subject to their position that Shelton Plaintiffs' first and third assigned cross-errors should be dismissed.

25. Four members represent a quorum of the City Council. Thus, the provisions relating to "a quorum, if less than three" do not apply.

26. In the Circuit Court and in their cross-petition, the Shelton Plaintiffs cite only one decision reaching a different conclusion. In Hough v. Stembridge, 278 So. 2d 288 (Fla. Dist. Ct. App. 1973), the court essentially rewrote Florida's open meetings law thirty years ago to extend that statute to members-elect of public bodies. However, the only court to consider this issue since that time explicitly rejected the Florida court's reasoning. See Wood, 27 P.3d at 1215 ("[N]othing suggests that members-elect have the power to transact a governing body's offIcial business before they are sworn in. Thus, they are not "members" of a governing body with authority to take action.").

27. See also J/A. 772 (testimony by Councilmember Kelly that he participated in "[n]umerous ongoing conversations with everybody present, anywhere from talking about stop signs to speed bumps, to painting curbs, issues relating to basically public safety and speeding at Charlotte and Weedon Street").

28. See J.A. 738 (testimony of Vice Mayor Howson) ("No there wasn't [any business regarding traffic concerns on Charlotte Street pending before the City Council], and it likely would not be. It's not the type of thing that we deal with."); J.A. 739 (noting that the City Council does not vote on stop signs).