The Virginia Coalition for Open Government - Fredericksburg FOI Case: Appellees

B. The facts clearly show that the exchange of e-mails was an "informal assemblage" and therefore a "meeting" as defined in Va. Code §§ 2.23701 and 2.2-3708.

C. "Simultaneous interaction" as interpreted and argued by Beck et al. is not a requirement to establish a prohibited e-mail meeting.

D. Appellants' reliance upon the Attorney General's 1999 Opinion is misplaced.

E. Beck et al.'s contention that the Act specifically permits the e-mails at issue here misrepresents what the Act permits and ignores what the Act forbids.

F. The facts show that Beck et af. violated Va. Code § 2.2-3710 regardless of whether or not there was a "meeting."

G. If the Court finds for Beck et al. it will have created a hole in the statutory scheme that the Legislature created.

-ASSIGNMENTS OF CROSS-ERROR

QUESTIONS PRESENTED

I. THE TRIAL COURT ERRED WHEN IT RULED THAT THE VIRGINIA FREEDOM OF INFORMATION ACT DOES NOT COVER THE ACTIVITIES OF ELECTED OFFICIALS BEFORE THEY ARE OFFICIALLY SWORN INTO OFFICE.

A. The Facts Alleged Established That Council member-elect Kelly Engaged In Activities Covered By The Provisions Of FOIA.

B. The Virginia General Assembly enacted the Virginia Freedom of Information Act to protect the public by requiring that the affairs of government be conducted in the open.

1. Virginia's FOIA Mandates Openness In Government.

II. THE CIRCUIT COURT ERRED IN HOLDING RESPONDENTS BECK'S, HOWSON'S AND KELLY'S MEETING ON THE CORNER OF CHARLOTTE ST. WAS NOT COVERED BY FOIA.

A. The Facts Establish That The Respondents Attended A Function At Charlotte Street Where The Purpose Of The Function Was The Discussion Of Public Business.

B. The Charlotte Street Meeting Constituted A "Meeting" As Defined By FOIA And Required Prior Public Notice.

III. THE CIRCUIT COURT ERRED WHEN IT HELD THAT THE DISCUSSION OF A PROPOSED HISTORIC PRESERVATION COMMITTEE WAS MERELY AN EXCHANGE OF INFORMATION.

A. Statement Of Facts Related To The Historic Preservation Meeting.

B. The Historic Preservation Discussion Between Beck, Howson And Kelly Constituted A Prohibited Electronic Communications Meeting.

CORRECTED STATEMENT OF THE CASE

This Case involves the application and construction of Virginia's Freedom of Information Act, Va. Code § 2.2-3700 et seq. (hereinafter "FOIA" or "the Act"). The case arose as a result of electronic communications (e-mails) among Appellants Beck, Howson and Kelly (hereinafter collectively "Beck et al.") which were obtained by Appellee/Cross-Appellant Timpone under FOIA. The e-mails clearly reflected various attempts by Beck et al. to discuss, debate, compromise and reach consensus on a number of public issues in private, without informing other members of the Fredericksburg City Councilor the public of their deliberations. The e-mails established that Beck et al. participated in face-to-face meetings without proper notice to the public; engaged in prohibited e-mail meetings to discuss and decide public issues before their decisions were formally announced at open Council meetings; and actually voted among themselves during one e-mail exchange. When Timpone and Shelton and Jenkins, the Appellees/Cross-Appellants (hereinafter collectively "Shelton et al.), became aware of what these e-mails represented. suit was filed to prohibit further violations of FOIA by Beck et al.

With regard to the appeal by Beck et al., the trial court held, properly, that an exchange of e-mails among three or more council-members in which they discussed public business and actually voted upon that business, constituted a prohibited meeting under FOIA, and was not in conflict with the January 6,1999 Opinion of the Attorney General and violated FOIA's prohibition on voting by electronic means. In the e-mails at issue in Count XI of the Petition, Beck et al. not only discussed alternative candidates for a position on the library board bye-mail, they actually voted among themselves for their preferred candidate prior to a Council meeting with the full Council. The trial court correctly applied FOIA in holding that the e-mail discussion among Mayor Beck, Vice Mayor Howson and Council-member Kelly constituted a prohibited meeting.

In its ruling on the other Counts of the Petition, the trial court, however, applied an improperly narrow construction of the Act in dismissing the claims. The trial court erroneously sustained Beck et al.'s demurrer to Counts I through IX of the Petition which related to actions taken by Beck et al. before Council-member Kelly was sworn into office on July 1, 2002. The e-mails at issue in Counts I through IX demonstrated that Kelly was already acting as a sitting Member of the City Council before he formally took office. These counts alleged, inter alia, that Beck et al. (a) drafted and sent a letter on Mayoral letterhead to the Virginia Marine Resources Council requesting that the state agency not act upon a request by the then-existing council; (b) gathered in secret to discuss and reach a consensus on the City's budget for the forthcoming year; and, (c) discussed via e-mail other matters that were expected to come before the full Council after they took office and attempted to achieve (and did achieve) agreement among themselves on these issues in private. It is also worth noting that some of Beck et al. clearly intended to secretly develop a consensus among themselves before informing other Council members, members-elect or the public of the favored positions.

The Circuit Court also erroneously ruled against Shelton et al. on Count XIV in holding that an e-mail discussion among Beck et al. of a proposed council action creating an Historical Preservation Committee, including the composition of the committee, was not a covered meeting under FOIA because the meeting was for "informational" purposes only. In reaching this erroneous conclusion, the trial court overlooked the fact that the so-called "informational" meeting also involved a discussion of the advantages and disadvantages of the proposed committee, how it would fit into the rest of the Council's agenda, and what statutory authority there was to support the proposal. In the end, the e-mails make clear that the participants in the meeting all favored the proposal. In fact, the proposal was eventually publicly announced and implemented, but without the (private e-mail) discussion that formed the genesis of the proposal.

Finally, the trial court erroneously granted a motion to strike the evidence after Shelton et al. rested their case in chief on Count XVII holding that the attendance of Beck et al. at a function to discuss traffic issues with a select group of citizens did not constitute a meeting covered by the public notice provisions of FOIA despite the uncontroverted testimony that Beck, Howson and Kelly all participated in the discussions of the traffic issues with those in attendance at the function. The evidence also established that when Mayor Beck arrived at the function and saw that Vice-Mayor Kelly and Council-member Kelly were already present, he commented that they would likely be sued for violating the Act.

CORRECTED STATEMENT OF FACTS

The e-mails which led the Circuit Court to determine that Appellants Beck et al. had violated FOIA's open meeting rule were not simple letters. Taken together the e-mails formed a dialogue among the three parties, Beck, Howson and Kelly, in which they discussed the advantages and disadvantages of two different candidates. They did this because they wanted to reach a consensus within their select group before approaching the full board. "I think (just between you and me) that the success of our retreat will hinge on our 5 reaching consensus beforehand." J.A. 54. Specifically, on July 5, 2002, Howson asked Beck, Kelly, Fortune and Withers if any members of the City Counsel were interested in serving on the Library Board. J.A. 388. That same day, Beck sent an e-mail to the others discussing two candidates: Mr. Withers and Mr. Cameron and speaking in support of Mr. Cameron. J.A. 390. Shortly thereafter Kelly chimed in, speaking in favor of Mr. Cameron, J.A. 394, and then sent a second e-mail saying "My vote is for Bev [Cameron]". J.A. 390. Mr. Howson then added "I also would support his appointment." J.A. 392. Two days later the idea of appointing Mr. Cameron to the Board was dropped when Mr. Withers privately pointed out to Beck that Bev Cameron was not a resident of Fredericksburg.. J.A. 400.

The e-mails clearly indicate deliberation, consideration of the advantages of appointing Mr. Cameron, and the actual casting of votes for him by the three Appellants. The participants were clearly discussing public business and attempting to (and actually did) reach a consensus. And all this was done secretly, without telling anyone outside the favored group what they were doing, and their actions were only discovered by fortuitous accident. This secret exchange of e-mails discussing and then voting in favor of one candidate was a prohibited meeting by electronic means and violated the statutory prohibition against electronic voting.

ARGUMENT

I. FOIA'S SOLE PURPOSE IS TO PROMOTE OPEN GOVERNMENT.[fn1]

In this case the Court is asked to place electronic communications (e-mail) within the context of the Virginia's FOIA. There is no question that sending a single e-mail to several other members of a public body is not a violation of FOIA. Nor is e-mail polling of other members to ascertain their position a violation. This Court is facing a different question, although equally simple: Can e-mail exchanges discussing public business constitute "meetings" subject to the notice and access requirements of the Act? Clearly the answer is "yes" and that is exactly what occurred in this case.

A. The principle of open government is simple: Open Decisions arrived at Openly.

Our form of government is a deliberative, republican democracy. For this system to work, the people must know what their elected representatives are doing and why they are doing it. Only in that way can the people decide whether or not to replace their representatives. The Federalist No. 57, at 318-19 (James Madison) (Clinton Rossiter ed., 1999). Governments "deriv[e] their just powers from the consent of the governed,"[fn2] but any consent, to be meaningful, must be informed. Only through open meetings may citizens hold their representatives accountable, making sure they are not only doing the right thing but for the right reason.[fn3] The statement of policy of the Virginia Freedom of Information Act reaffirms the central role that information plays in our democracy:

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

Va. Code § 2.2-3700(B) (emphasis added).

Then, to ensure that everyone understood the Legislature's intent, the Act states: "The provisions of this chapter 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...." Id. (emphasis added).

B. E-mail has expanded the ability to communicate exponentially and poses a serious threat to the public's need for open decisions arrived at openly.

E-mail has exponentially accelerated the ability of government to communicate internally with other components or levels of government, and externally to the public and the private sector.

E-mail combines the speed of a phone call with the substance of a letter or memo. ... . Like phone calls, an almost limitless number of e-mail messages may be exchanged within the same time frame that it would take for a single letter to be mailed, received, responded to and mailed again. Also like a phone call, the language used in e-mail is informal; abbreviations and "emotions" [sic] are frequently used to convey the tone the email writer intends.

Brief of Amicus Curiae Coalition for Open Government at 4-5 (citations omitted).

E-mail has fostered tremendous opportunities in terms of wide dissemination of information, allowing government employees to expand the storage and archival functions for records while at the same time allowing them to disseminate large or small documents quickly. Other than the restrictions imposed by laws such as FOIA, there is no longer a need for government workers to be in the same physical location or to travel to other locations to meet with fellow collaborators, since much of that discussion can be conducted via rapid e-mail communications allowing for quick, back-and-forth substantive discussions among all or several members of a public body. Distance is no longer an important factor. Public officials can as easily communicate with anyone anywhere in the world as they can with someone in the same office.

Because e-mail knows no boundaries, discussions between groups of individuals can and do easily occur outside the public purview. Such discussions present great potential for constituting a meeting, as defined in FOIA, as "a body or entity or as an informal assemblage of (I) as many as three members ... wherever, held, with or without minutes being taken, whether or not votes are cast, or any public body." Va. Code §2.2-3701. FOIA mandates that its provisions be construed liberally "to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government." Va. Code § 2.2-3700 (emphasis added). Therefore anything which would promote a decreased awareness of the operations of government would be contrary to FOIA's purpose.

II. THE COURT RULING THAT THERE WAS AN E-MAIL MEETING SHOULD BE UPHELD.

A. The facts clearly show that there was a discussion, debate, and vote to support Mr. Cameron's appointment to the Library Board.

The e-mails contained in the Joint Appendix and described in the Corrected Statement of Facts, supra, were not simple, garden variety letters from one member to all the others. Considered as a whole, taking in all the facts and circumstances, they form a dialogue among the three parties, Beck, Howson and Kelly, in which they discussed the advantages and disadvantages of two different candidates. The e-mails clearly indicate deliberation, consideration of the advantages of appointing Mr. Cameron, and voting for him by the three Appellants. The participants were clearly discussing public business and attempting to (and actually did) reach a consensus before presenting their plan to the public and the full Board. This behavior is fully in accord with their earlier statements intending to do just that: "I think (just between you and me) that the success of our retreat will hinge on our 5 reaching consensus beforehand." J.A. 54. "It is absolutely imperative that we have solid agreement on a near term [100 days] action plan ...." J.A. 44.

B. The facts clearly show that the exchange of e-mails was an "informal assemblage" and therefore a "meeting" as defined in Va. Code §§ 2.23701 and 2.2-3708.

Under Va. Code § 2.2-3701, a "meeting" is defined to include "an informal assemblage of (I) as many as three members '" of any public body." (Emphasis added.) The dictionary definition of "assemblage" is "a collection of individuals.... " Webster's New Universal Unabridged Dictionary 111 (2nd Ed. 1983). "Collection" has two relevant definitions in the same dictionary: "the body formed by a gathering ..." and "something that has gathered into a mass or pile, accumulation" Id. at 355. "Gather" also has two relevant definitions: "to cause to come together" and "to get or collect gradually from various places, sources ...." Id. at 758. In addition, Va. Code § 2.2-3700 specifically instructs the Court that Virginia's Freedom of Information Act will be "liberally construed". Thus, the Legislature has deliberately created an intentionally broad category of coming together which would extend over a period of time.

Section § 2.2-3708 is titled "Electronic communication meetings". Members of any public body discussing public business using "electronic communications" must, by definition, be in different locations--otherwise they would not need to use electronic communications. Furthermore, "electronic communications" means much more than e-mails.[fn4]

The facts therefore clearly establish that there was an informal assemblage of Beck, Howson and Kelly, that used electronic means to communicate (e-mails) and that discussed public business in a successful attempt to reach a consensus on who they should appoint to the Library Board.

Beck et al. are asking this Court to put on blinders and rule that, because of delays in the exchange of e-mails, delays they alone controlled, there could not have been an informal assemblage and therefore no violation of FOIA occurred. This, however, cannot be done if the Court refuses to don Beck et al.'s blinders. If the Court considers, as it must, all the facts and circumstances of the electronic communications involved, the substance and timing of the e-mails are clear and lead to specific conclusions: Beck et al. held an informal assemblage to discuss and decide public business and voted by e-mail for a specific candidate they intended to appoint to the Library Board.

Suppose Beck et al. agreed to sit down at their computers at a fixed time to discuss electronically the same public business at issue here and all of these e-mails were exchanged in only one hour (which would have been quite easy). Would that be an informal assemblage discussing public business? The answer is obviously "yes." How about the same facts, but the e-mail interchange takes place over one day? Does that mean that it is not an informal assemblage? No, it does not. An assemblage by electronic means enables the participants to read and respond over time, it is not restricted to any finite period of time.

Thus, for the Court to rule in their favor, Beck et al. must refute the fact of their "informal assemblage". The only way they can do that is to persuade the Court to impose a requirement that all participants be seated at their computers at the same time. This is not and should not be a statutory requirement. To impose this requirement would be to put the power to determine whether or not a meeting had taken place in the hands of the very people who might have reasons to prevent the public from obtaining the very knowledge necessary to ensure that FOIA's ideal of open government with decisions arrived at openly is achieved.

C. "Simultaneous interaction" as interpreted and argued by Beck et al. is not a requirement to establish a prohibited e-mail meeting.

As noted in the discussion of "informal assemblage", supra, there is no requirement of simultaneity in the Virginia's FOIA.[fn5] Beck et al.'s position that there is such a requirement flies in the face of the words of the statute itself, which specifically prohibits meeting by electronic communication means (including e-mail). V a. Code § 2.2-3710A. Further, the Act clearly contemplates that communications and deliberations will not be done simultaneously or they would not ban meetings by "electronic or other communications means". Va. Code § 2.2-3708A.

As previously argued in their unsuccessful demurrer and again in their unsuccessful Motion for Summary Judgment, Beck et al. rely upon a tortured interpretation of a 1999 Attorney General Opinion to support their position. See 1999 Va. Op. Atty. Gen. 12, 1999 WL 463384 (Jan. 6, 1999). Beck et al. argue that the Attorney General Opinion stands for the proposition that for there to be a "meeting" under the Freedom of Information Act, there must be a "simultaneous interaction" between the participants. The Opinion does not support this proposition. The only conclusion reached by the Opinion is that the Act "does not bar members of a local governing body from sending electronic mail communications to other members of the governing body." Id.

The Attorney General's Opinion, however, did not discuss the issue of what response to the original e-mail is required to establish a prohibited "meeting" under the Act. The Opinion is limited to the use of a "basic type of electronic mail system commonly in use today and as described in the opinion." 1999 Va. Op. Atty. Gen. at note 5. In other words, the opinion is applicable only to the factual scenario forming the basis of the original question to the Attorney General in which one member sends electronic mail communications to three or more other members without a response.

The Virginia Freedom of Information Advisory Council, recognizes that [i]n light of to day's technological advances, the discrepancies between a face-to-face simultaneous discussion and an electronic exchange are fast diminishing, making it difficult to draw the line between what type of electronic exchange constitutes correspondence, and what constitutes an electronic discussion.

Virginia FOIA Council Advisory Opinion AO-1-0l (January 3, 2001).

The advisory opinion further discusses that the use of an e-mail server would result in a prohibited meeting. According to Opinion, by using such a server, every participant could automatically see the message sent and would have the opportunity to respond and see all of the other responses to the original message. Id Finally, the Advisory Council concludes that "[w]hile this conversation might not ensue as instantaneously as a face-to-face conversation, the end result would be the same exchange and discussion of ideas outside of the public's view." Id. at 2. Although an e-mail server was not used by Beck et al., it is clear that their use of e-mails had the same practical effect in that each of them could automatically see the messages when sent and had the opportunity to respond and see all of the other responses to the original message.

Beck et al. also misquote a Virginia Freedom of Information Advisory Council November 18, 2002, summary of the law by incorrectly stating that simultaneous communication was required for an exchange of e-mail to constitute a meeting. J.A. 511. That is not what the Advisory Council concluded. In discussing the Attorney General Opinion referenced above, the Advisory Council stated that "[t]he underlying theme of the opinion seems to rest on the fact that the use of e-mail does not result in the simultaneous communication that occurs when members are sitting together physically." Id at 512. But the Advisory Council concluded that:

Until a line is established by the courts or the legislature as to whether electronic communications can cross the line between correspondence and a meeting, one might best heed the policy of FOIA that the law is written to ensure that public bodies deliberate in public. If a member of a public body is questioning whether an electronic communication might lead to the deliberation of public business by three or more members of that public body, then that communication should probably be saved for a public meeting.

Id. at 511.

The underlying policy referenced in the letter is expressly stated in the Act as follows:

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to records in the custody of public officials and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. . .

The provisions of this chapter 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.

Virginia Code § 2.2-3700(B).

Given the express mandate in the Act to ensure the open conduct of government and the directive to liberally construe the Act to promote this mandate, the line must be drawn to recognize that the use of e-mails, such as was done here, is a violation of the Act. Whenever e-mails are transmitted to three or more members of a governing body and a series of e-mails follow which constitute a discussion of public business between the members, there is a violation of not only the express mandate in the Act, but a violation of the prohibition against electronic meetings. It does not matter that the responses may not be "instantaneous" to the original e-mail. Such an interpretation requires an excessively narrow and constricted construction of the language of the Act. As correctly held by J. Scott in the Circuit Court, the focus of the inquiry "is the manner in which the "e-mail" is used in communications between three or more members of the elected body. . ." J.A. 293-294. In the case, the answer to that inquiry is that the manner of use constituted a clear discussion and deliberation of the issues between the members so as to constitute an illegal "meeting."

D. Appellants' reliance upon the Attorney General's 1999 Opinion is misplaced.

The initial question directed to the Attorney General requesting his opinion specified that a member of a public body had directed an e-mail to several other members. The facts set forth in the initial paragraph of the opinion clearly stated that the question dealt whether FOIA "prohibits one elected member of a local governing body from sending electronic mail communications to three or more other members...." 1999 Op. Va. Att'y Gen. 12 at 1. Even under those facts the Opinion recognized that there was the possibility of e-mail exchanges that might be prohibited under Va. Code §§ 2.2-3708, 3710, id at Fn. 5, or some other part of FOIA, id at Fn. 7.

But the facts of this case are radically different. Under the facts of this case, there was an exchange of electronic communications among three or more members in which they discussed the public's business and actually reached a voted consensus on future actions. Furthermore, the Opinion ignores the recognition that Va. Code § 2.2-3708 gives to the possibility that meetings through electronic communications such as e-mails can occur and should be prohibited. The Opinion, therefore does not apply to the facts of this case.[fn6]

In addition, to accept Beck et al. 's analysis would create a situation where the Court would permit members of a public body to discuss the public's business, analyze the pro's and con's, debate, and strive to develop and secretly vote on compromises and agreements which would only be announced in public at a later time after a pro forma vote. Worse, the public would have no knowledge of these discussions, compromises, agreements and votes unless and until some citizen filed an appropriate request under Va. Code § 2.2-3704 which was deemed by the participants to cover the topic they discussed, compromised, agreed and voted on. The result: the principle of open government with decisions arrived at openly would be destroyed--contrary to the explicit intent and language of the statute and its directive that the Court should construe Virginia's FOIA "liberally". Va. Code § 2.2-3700B.

E. Beck et al.'s contention that the Act specifically permits the e-mails at issue here misrepresents what the Act permits and ignores what the Act forbids.

Beck et al. argue that, in essence, Virginia's FOIA permits them to do whatever they wish, so long as it is done by a series of e-mails. "[n]on-simultaneous communications such as the serial e-mails here ... are expressly authorized by the statute." Brief of Appellants at 15. This is simply not the case. The statute specifically permits one member to contact another "for the purpose of ascertaining a member's position ...." Va. Code § 2.2-3710B(I) (emphasis added). The statute does not authorize deliberation, discussion, debate, argument or any other actions, especially not actions designed to help the participants reach (as they did in this case) a consensus on action to be taken. Should the Court accept Beck et al.'s position it will have read out of the statute the specific prohibition on doing the public's business by means of electronic communications.[fn7]

An analysis of the law and its legislative history clearly indicates that Appellants' behavior is prohibited.[fn8] Under Va. Code § 2.2-3710A Beck et al. could not vote and the legislative history they refer to as suggesting that the can has another interpretation--one quite inimical to Beck et al.'s position. The legislative definition of "meeting" in Va. Code § 2.2-3701 includes informal assemblages of "a quorum, if less than three, of the constituent membership". Thus, when the Senate struck the words "one-to-one-basis" and inserted other words permitting electronic communications "provided the contact is done on a basis that does not constitute a meeting"[fn9] the Senate clearly intended to cover small quorums and ensure that even when a quorum of two ascertained each other's position there was no discussion, debate or other attempts to reach a decision as there would be in a meeting. This, in fact, is a much more reasonable interpretation than one, such as the one put forward by Beck et al. that permits evasion of the strictures of FOIA, as in fact, Beck et al. almost succeeded in doing.

Under Va. Code § 2.2-3708 Beck et al. could not discuss, debate, vote or otherwise hold a meeting by electronic means. Furthermore, Va. Code § 2.2-3701's definition of "meeting" specifically incorporates § 2.2-3708. Therefore the statutory definition of "meeting" incorporates informally assembling via electronic communications means such as e-mails.

F. The facts show that Beck et al. violated Va. Code § 2.2-3710 regardless of whether or not there was a "meeting."

Regardless of anything else, it cannot be disputed that Beck, Howson and Kelly voted on the candidacy of Bev Cameron by electronic means. See Corrected Statement of Facts and the e-mails from Beck et al. at J.A. 390,392 and 400. But FOIA specifically prohibits just these actions in no uncertain terms: "no vote of any kind of the membership...of any public body shall be taken .... no public body shall vote by telephone or other electronic communications means" Va. Code § 2.2-371 OA. Thus, Beck et al. have clearly violated this section of FOIA and J. Scott's ruling that they did so should be upheld.

G. If the Court finds for Beck et al. it will have created a hole in the statutory scheme that the Legislature created.

Beck et al. make repeated comparison of the e-mails to letters and claiming that, because letters are permitted, their e-mails should also be permitted. But Virginia's FOIA does not expressly reference letters; although there would appear to be an implicit acknowledgment that an exchange of letters among members of a public body do not violate the FOIA prohibitions on closed meetings in Va. Code §§ 2.2-3707, 3708 and 3710. Unlike letters, "electronic or other communication means" are specifically mentioned in the statute. Va. Code § 2.2-3708A.

To accept Beck et al. 's argument that e-mails are merely letter correspondence is to ignore the legislature's prohibition on discussing and voting on the public's business using electronic communications such as e-mails which is contained in Va. Code §§ 9 2.2-3701,3708 and 3710. Furthermore, if Beck et al.'s argument is accepted by the Court it would be impossible to violate FOIA, no matter what was discussed in the communication.

Like phone calls, an almost limitless number of e-mail messages may be exchanged within the same time frame that it would take for a single letter to be mailed, received, responded to and mailed again.

Brief of Amicus Curiae Coalition for Open Government at 5. (Emphasis added)

But the speed of the exchange of e-mails and any delay in responding is solely at the discretion of the participants in the discussion. They control how slowly they respond to the e-mails they receive. The "hole" in FOIA that ruling in favor of Beck et al. would create is clear: the requirements of the Act could easily be avoided by deliberate taking delaying the exchange of electronic communications at the whim of the participants. This would put the power to determine whether or not a meeting had taken place in the hands of the very people who might have very real, personal, reasons to prevent the public from obtaining the very knowledge necessary to ensure that FOIA's ideal of open government with decisions arrived at openly is achieved Beck et al. want to tell the public that their behavior was approved by the Court, but Virginia's FOIA prohibits exactly the sort of discussion and vote which occurred in this case.

The facts clearly show that the exchange of e-mails was neither ordinary nor garden-variety. Ordinary, garden variety, e-mails are not exchanges among members of public bodies discussing public business for the purpose of reaching a private consensus among themselves. To find otherwise would be to ignore Twenty-First Century reality

and ignore FOIA's explicit language.

ASSIGNMENTS OF CROSS - ERROR

1. The Court erred in holding that Va. Code 2.2-3700 § et seq. does not apply to members-elect who met with certain current members to send official correspondence and decide public business and public actions to be taken immediately upon being sworn into office. (Counts I-IX).

2. The Court erred in narrowly construing what it means to "discuss" the public's business for the purpose of determining whether a covered meeting has occurred under Va. Code §§ 2.2-3700 et seq. (Count XVII).

3. The Court erred in narrowly construing what it means to "discuss" the public's business when it held that an e-mail meeting designed to give advance knowledge to selected members of the Council of a proposed committee and its proposed members, and the subsequent discussion of that proposal so as to achieve consensus in advance of Council discussion, was not a covered meeting. (Count XIV).

QUESTIONS PRESENTED

1. Whether the requirements of Virginia's FOIA statute, Va. Code §§ 2.2-3700 et seq. apply to members-elect of a public body who meet with members of the public body to plan and/or carry out actions affecting the public's business? (Question applies to the first Assignment of Cross-Error.)

2. Whether three Council members meeting and discussing public business with a group of citizens violates the requirements of Virginia's FOIA statute, Va. Code §§ 2.2-3700 et seq.? (Question applies to the second Assignment of Cross-Error.)

3. Whether Virginia's FOIA statute, Va. Code §§ 2.2-3700 et seq. covers an e-mail meeting among five members of a public body discussing in advance a proposed action so as to achieve consensus prior to presenting the proposal formally to the remainder of the Council. (Question applies to the third Assignment of Cross-Error.)

ARGUMENT

I. THE TRIAL COURT ERRED WHEN IT RULED THAT THE VIRGINIA FREEDOM OF INFORMATION ACT DOES NOT COVER THE ACTIVITIES OF ELECTED OFFICIALS BEFORE THEY ARE OFFICIALLY SWORN INTO OFFICE.

When the General Assembly enacted FOIA, it mandated that its provisions be "liberally construed" to "afford opportunity to citizens to witness the operations of government," and that any exemption from public access be "narrowly construed." See Virginia Code § 2.2-3700B. The trial court, however, broadly construed an exemption and narrowly construed the open government provisions when it held under the circumstances of this case that Council member-elect Kelly was not a member of a "public body" and therefore not covered by the provisions of the Act. However, the definition "public body" specifically contemplates that private sector or citizen members may be included as part of a public body. See Virginia Code § 2.2-3701. Moreover, members-elect hold an elevated status under FOIA by virtue of their statutory obligation to become familiar with the requirements of the Act. See Virginia Code § 2.2-3702. The facts, as established in the trial court, demonstrate that Councilmember-elect Kelly not only met with sitting members of the Council to discuss public business before he was sworn into office, he also transacted public business with these members, enabled them to send an official City Council document to a state agency and he acted on behalf of Beck and Howson in contacting that agency. Under these circumstances, Councilmember-elect Kelly was subject to the provisions of FOIA.

A. The Facts Alleged Established That Council member-elect Kelly Engaged In Activities Covered By The Provisions Of FOIA.

In ruling on a demurrer the court must assume all allegations contained in the Petition are true and shall make all reasonable inferences in favor of Petitioner. For purposes of a Demurrer, the standard for evaluating facts alleged in a Petition are well established. "The court considers as true all material facts alleged in a bill of complaint, all facts impliedly alleged, and all reasonable inferences that can be drawn from such facts." Riverview Farm Associates et al. v. Board of Supervisors of Charles City, County et al., 259 Va. 419, 427, 528 S.E.2d 99, 104 (2000) citing Moore v. Maroney, 258 Va. 21, 23, 516 S.E.2d 9, 10 (1999); Concerned Taxpayers of Brunswick County v. County of Brunswick, 249 Va. 320, 323, 455 S.E.2d 712, 713 (1995); Krantz v. Air Line Pilots Ass'n, Int'l, 245 Va. 202, 204, 427 S.E.2d 326,327 (1993).

The facts alleged in the Petition clearly demonstrate that Mayor Beck, Vice-Mayor Howson and then Council member-elect Kelly repeatedly met either in person or through electronic communications to discuss and decide city business in violation of the law. The original Petition and Request for Writ of Mandamus alleged nine (9) counts which occurred prior to Council member-elect Kelly being sworn into office as follows

. Count I alleged an exchange of e-mails in which Beck, Howson and Kelly discussed the problem facing the City Council on where to site the local Homeless Shelter and attempted to develop a consensus on a solution to the issue which they would implement immediately upon the new City Council being sworn into office. J.A. 4-5 and 29-35.

. Count II alleged an exchange of e-mails discussing the local real estate development known as Central Park. The e-mails discussed maintenance issues at the development, proposed to make the developer pay for the maintenance, and discussed exactly how to do that. J.A. 5-6.

. Count III alleged an exchange of e-mails in which Beck, Howson and Kelly to arrange a face-to-face meeting designed to reach "consensus" among them before Kelly is sworn in on July 1, 2002 so their program can be implemented immediately after his swearing-in. J.A. 6-7.

. Count IV alleged that there was at least one face-to-face meeting designed to reach "consensus" among them before Kelly is sworn in on July 1, 2002 so their program can be implemented immediately. J.A. 8-9.

. Count V alleged an exchange of e-mails in which Beck, Howson and Kelly discussed a proposal to build a parking facility which was then before the City Council and debated among themselves whether or not the Council should support it. J.A. 9-10 and 53-66.

. Count VI alleged an exchange of e-mails in which Howson announced that he was preparing a proposal dealing with the area of the City around the river known as "Riverwalk", received comments and suggestions about what should be in his proposal, and responding to Howson's request for a May 27, 2002, meeting so they will have resolved all the issues and be able to vote on the proposal as soon as the new Council takes office on July 1, 2002. J.A. 10-11 and 53-66.

. Count VII alleged an exchange of e-mails in which Beck, Howson and Kelly discussed the perceived problems with marketing' Fredericksburg as a tourism attraction, discussed the perceived problems with the City department in charge of doing that, and attempted to develop a consensus on what to do about it. J.A. 1112 and 67-74.

. Count VIII alleged an exchange of e-mails in which Beck, Howson and Kelly discussed the current City Council's negotiation of an easement over city land for the construction of a gondola, decided to send a letter on Mayor Beck's letterhead to the Virginia Marine Resource Commission requesting that the VMRC not act on the current City Council's request for approval of the easement, drafted the letter, presented the draft letter to another member of the current Council and to another member-elect on a take-it-or-leave-it basis and sent it. J.A. 12-l3 and 75-94

. Count IX based upon the e-mails contained in Amended Exhibit 9 to the Petition, alleged an exchange of e-mails discussing funding for an Interstate 95 interchange that they no longer want. J.A. l314 and 95-99.

The trial court sustained Beck et al. 's demurrers as to these Counts. J.A. 361. In sustaining the demurrers, the trial court held that council members-elect are not members of the "public body" until their terms begins, and therefore, not subject to the provisions of FOIA. J.A. 294-295. The trial court apparently rejected Shelton et al.'s argument that the council member-elect should be covered by the provisions of FOIA because the e-mails which were attached as exhibits to the Petition established that the sitting Council members and the member-elect met, discussed and reached a consensus on actions and plans to be implemented after the member-elect was sworn into office, that Councilmember-elect Kelly enabled Beck and Howson to send a letter to a Virginia state agency designed to interfere with the sitting Council's actions and represented Beck and Howson and himself in front of that agency. J.A. 234. The court rejected Shelton's argument that the member-elect acted as a defector member of the public body.

The e-mails provide numerous examples of public business being conducted by Beck et al. before Kelly was sworn into office. The most striking example is found in Count VIII which concerned the involvement of Council member-elect Kelly with the drafting and eventual delivery of a letter to the Virginia Marine Resources Commission. The e-mails between Beck, Howson and Kelly indicate that the letter which was drafted for the purpose of asking the state agency to delay in issuing a building permit would go on mayoral letter head and include the signatures of Beck, Howson, Kelly and other members-elect. J.A. 79. The e-mails specifically contemplate that the letter would read as follows: "The undersigned represent a majority of the Fredericksburg City Council that will be taking office on July 01, 2002. We are requesting that the Virginia Marine Resources Commission delay any vote on the Silver Cos' application for a permit to build a gondola over the Rappahannock River." Id. A subsequent e-mail from Kelly to Beck and Howson reports that Kelly, before he was sworn in to office, contacted the VMRC to confirm that the letter was actually sent and received by the VMRC. J.A. 83. These e-mails establish that Council member-elect Kelly actually met and transacted business with Beck and Howson and contacted the VMRC on behalf of the City Council prior to officially taking office. Another example is the exchange of e-mails started as a discussion of a proposal to build a parking deck that was about to be presented to the city council and expanded to cover other projects. In the course of that discussion, on May 20, 2002, Beck e-mailed Mr. Fortune and Mr. Withers as well as Howson, and Kelly

saying

We need to get together for a long serious discussion sometime after [June 17,2002] and before July 1. It is absolutely imperative that we have solid agreement on a near term [l00 days] action plan and some sort of long range vision that can be set out for the community and the city staff. It might be useful to handle our discussion like one of those goal setting meetings with flip charts that I hate. Please let me know some good dates to get together. And keep up the e-mail discussion."

J.A. 44. (Emphasis added).

B. The Virginia General Assembly enacted the Virginia Freedom of Information Act to protect the public by requiring that the affairs of government be conducted in the open.

1. Virginia's FOIA Mandates Openness In Government.

As specifically acknowledged by the Act: "The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government." Virginia Code 2.2-3700B. The Act requires that:

Unless a public body or public official specifically elects to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

Id. (emphasis added).

The legislative mandate to conduct an open government is emphasized by the following language in the Act:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law

Id. (emphasis added).

Several of the meetings at issue in the instant Petition involved two sitting members of the City Council (Mayor Beck and Vice-Mayor Howson) as well Councilmember-elect Kelly who had not yet been sworn into office. The fact that Councilmember-elect Kelly participated in the meetings does not alter the mandate of the Virginia Freedom of Information Act. The language and intent of the Act requires that elected officials who have not been sworn in to office be covered.

The Act specifically contemplates situations like the one under appeal today and considers them to be covered. The definition of "public body" in the Act contemplates application of the Act to the meetings of private sector or citizen members. Specifically, the definition of "public body" includes the following:

It shall include any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. Is shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.

Virginia Code § 2.2-3701.

The meetings at issue technically did not involve simply "private sector or citizen members." Participants in the meetings had been elected to the Council, if not yet sworn into office. Unlike "private sector or citizen members," these Councilmembers-elect are required to be familiar with the requirements of the Act. Section 2.2-3702 of the Act specifically requires that within two weeks of their election, the Councilmembers-elect were to have been provided a copy of the Act and to become familiar with its provisions. If Councilmembers-elect are not expected to follow the provisions of the Act, why are they required to receive and become familiar with the provisions of the Act before they officially take office?

There are no Virginia cases addressing this issue. There are only a few cases around the country to address the issue. Courts in California, Florida and Washington have answered this question in the context of their FOIA statutes. In 216 Sutter Bay Assoc. v. County of Sutter, 58 Cal. App. 4th 860, 68 Cal. Rptr. 2d 492 (1997), the court considered whether California's open meeting law (the "Brown Act"), Cal. Gov't. Code § 54950 et seq., applies to members-elect. The Brown Act's purpose is clearly stated, [fn10] but nowhere in the Act is there any instruction from the Legislature to the Courts indicating how the Act is to be construed. See Cal. Gov't. Code § 54950 et seq. The court in 216 Sutter, ruled that the Brown Act did not cover members-elect. 216 Sutter, 58 Cal. App. 4th at 878. The 216 Sutter Court's reasoning was simple: the California legislature had just recently amended the Brown Act, adding Cal. Gov't Code § 54952.l, which specifically applied the Act to members-elect. Id. Therefore, the court concluded that the Brown Act could not have applied to members-elect before the specific amendment. Id.

Four years later, the Washington open meeting law was challenged in Wood v. Battle Ground School District, 27 P.3d l208 (Wash. App. 2d 200l). Since the Washington open meeting law was modeled on the California and Florida law the Court looked to 216 Sutter for guidance. Id. at l2l5. After quoting from the Washington law's purpose,[fn11] the Wood court followed 216 Sutter and ruled that members-elect are not covered by the Act because nothing in the Act "suggests that members-elect have the power to transact a governing body's official business before they are sworn in." Id. This analysis is seriously flawed because, although the Wood Court mentioned the Legislature's instructions on how to construct the language of the Act, it did not note that California's Brown Act contains no similar instruction and failed to explain how, if at all, Rev. Code Wash. § 42.30.9l0 and its instructions to the Courts that the statute should be "liberally construed" affect the Wood Court's analysis. ld. In effect, therefore, the Wood Court read § 42.30.9l0 out of the law.[fn12]

Florida's Government in the Sunshine Law, F.S.A. § 286.01l, like California's, does not contain any instructions how courts should construe it. Despite this omission, a well-reasoned discussion of why members-elect are subject to coverage is found in Hough v. Stembridge, 278 So. 2d 288 (Fla. Dist. Ct. App. 1973). The court in Hough applied Florida's open meetings statute to a meeting between two councilmen-elect and one council member. The Hough court reasoned that the "obvious intent of the Government in the Sunshine Law was to cover any gathering of some of the members of a public board where those members discuss some matters on which foreseeable action may be taken by the Board." Id. at 289. The Hough court then went on to state that, to exempt members-elect from the requirements of the Sunshine Law would in effect permit as in the case sub judice members-elect of a public board or commission to gather with impunity behind closed doors and discuss matters on which foreseeable action may be taken by that board or commission in clear violation of the purpose, intent, and spirit of the Government in Sunshine Law. Hough v. Stembridge, 278 So. 2d at 289. The Hough court then concluded that "an individual upon immediate election to public office loses his status as a private individual and acquires the position more akin to that of a public trustee." Id

Among the acts discussed, Virginia's Act, Va. Code § 2.2-3700 et seq., contains the strongest statement that General Assembly intended the Act to be liberally construed of any of the laws. Compare Rev. Code Wash. § 42.30.910 ("The purposes of this chapter are hereby declared remedial and shall be liberally construed.") with Va. Code § 2.2-3700(B) ("The provisions of this chapter 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. Any exemption from public access to records or meetings shall be narrowly construed '" ."). Thus, Virginia courts should, if all possible, liberally construe the Act in addressing whether members elect are covered by the Sunshine Act.[fn13] In doing so Virginia should adopt Florida's recognition of the elevated status of a member-elect. Thus, the Hough decision supplies an answer to the previously asked question as to why the Virginia Act requires members-elect to be provided with a copy of the Act within two weeks of their election and to

become familiar with its provisions. Virginia Code § 2.2-3702.

It is clear that the Virginia General Assembly recognizes the special status of members-elect and that it intended that the provisions of the Act apply elected members such as then Council member-elect Kelly.

II. THE CIRCUIT COURT ERRED IN HOLDING RESPONDENTS BECK'S, HOWSON'S AND KELLY'S MEETING ON THE CORNER OF CHARLOTTE ST. WAS NOT COVERED BY FOIA.

The trial court heard evidence on Count XVII of the Petition which alleged that Respondents Beck, Howson and Kelly engaged in a "meeting" as that term is defined by the Act without providing prior public notice as required by the Act. At the conclusion of Petitioner's evidence, the court granted Respondents motion to strike on the grounds that the meeting was an informational forum for citizens and the Respondents did not discuss public business with each other as a group. The trial court erred in applying a narrow construction of what is meant by a "discussion" of "public business" under the Act. There is no requirement that the elected officials must engage in a discussion exclusively among themselves for the open meeting requirements of the Act to apply. The Act specifically contemplates the type of function attended by Respondents where there was a broad discussion with the other participants in the meeting. Moreover, the discussion that occurred was not an "informational forum." Instead, elected officials in attendance and the public engaged in an active discussion of public business. This was exactly the type of meeting that required prior public notice under the Act.

A. The Facts Establish That The Respondents Attended A Function At Charlotte Street Where The Purpose Of The Function Was The Discussion Of Public Business.

On July 25,2002, Mayor Beck, Vice-Mayor Howson and Council member Kelly attended a meeting of citizens at the intersection of Charlotte and Weedon streets in the City of Fredericksburg. J.A. 683, 724 and 766. The purpose of the meeting was to discuss the neighborhood's concerns over traffic at the intersection. J.A. 684, 726-727, 766-767. The meeting was called because the Public Works Department recently denied a request by a citizen to install a 4-way stop sign at the intersection. J.A. 727. Although the meeting was organized by someone from the neighborhood, Ruth Fitzgerald, it was Council member Kelly's idea to hold the meeting. J.A. 766-767. In advance of the meeting, Council member Kelly contacted Doug Faucett, Director of Public Works for the City of Fredericksburg, and asked him to attend. J.A. 770-771. Council member Kelly also contacted a representative of the local bus service about attending the meeting. J.A. 771. On July 19, 2003, Ruth Fitzgerald sent an e-mail to a number of citizens confirming the date for the meeting and confirming that Vice-Mayor Howson, Council member Kelly and Doug Faucett planned to attend. J.A. 788. Vice Mayor Howson, Council member Kelly and Mayor Beck all received copies of the e-mail. J.A. 688, 725 and 768. Other than the e-mail invitation sent by Ruth Fitzgerald, there

was no notice of the meeting provided to the general public of the City of Fredericksburg. J.A. 692, 732 and 771.

Vice-Mayor Howson and Council member Kelly were already at the meeting when Mayor Beck arrived. J.A. 694. About 20 citizens were present and they came and went throughout the course the meeting. J.A. 707. Mayor Beck, Vice-Mayor Howson and Council member Kelly all participated in the discussions concerning traffic issues during the meeting. J.A. 695. When the issue of speed bumps was suggested, Mayor Beck pointed out that they were not a viable option for a public street. J.A. 696. Vice-Mayor Howson answered some questions from the citizens and made comments about possible solutions such as increasing the fines for speeding at that intersection. J.A. 728. Specifically, Vice-Mayor Howson mentioned that new legislation gave the City Council the authority to increase fines in certain areas and suggested that it was something the Council could consider. Id They even conducted an experiment. J.A. 700.

At one point during the meeting, Mayor Beck commented that because three members of the City Council were present during the meeting someone may claim that the meeting violated FOIA. J.A. 714. The Mayor characterized his comment as a joke. J.A. 701 and 714.

The traffic issues discussed at the Charlotte Street meeting became an agenda item at a subsequent formal City Council meeting. J.A. 698. In that City Council meeting, Council member Kelly raised the issues discussed at Charlotte Street and referred the matter to staff to consider and offer recommendations. J.A. 698 and 778. The City Manager turned the matter over to Doug Faucett and to date the matter is still pending before the City Council. J.A. 778.

Upon these facts adduced during Petitioner's case in chief, the trial court granted Respondents' motion to strike Petitioners' claim that this informal meeting of the three members of the City Council violated the open meeting requirements of the Act. The trial court ruled as follows:

Considering the evidence in the light most favorable to the Petitioners, the Court specifically finds that this meeting was, excuse the term, scheduled as a consequence of citizen inquiry; that the meeting's purpose, in essence, was an informational forum in reference to traffic issues in a given neighborhood or on a specific street; that the three members of Council who appeared did not, according to the testimony which is uncontradicted, did not discuss anything with each other as a group of three or otherwise. The motion to strike is granted.

J.A. 784-785.

B. The Charlotte Street Meeting Constituted A "Meeting" As Defined By FOIA And Required Prior Public Notice.

The trial record conclusively establishes that Mayor Beck, Vice-Mayor Howson and Council member Kelly attended a meeting of citizens on July 25, 2002. It is also without dispute that the purpose of the meeting was to discuss traffic issues concerning a public street. Further, there is no dispute that there was no public notice of the meeting. FOIA, in pertinent part, defines a "meeting" as an "informal assemblage of (I) as many as three members. . . of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body." Va. Code § 2.2-3701. The July 25,2002, Charlotte Street meeting certainly satisfies the

definition of "meeting" under the Act as it constituted an "informal assemblage" of "three members. . .of the constituent membership" of the City Council of the City of Fredericksburg.

FOIA further requires that a "meeting" be open to the public and, as pertinent to this matter, that the pubic receive advance notice of the "meeting." Va. Code § 2.2-3707(B). It is clear from the trial record that there was no public notice of the Charlotte Street meeting. This failure to provide public notice of the meeting formed the basis of Petitioner's claim in Count XVII.

Certain meetings are exempted from the open meeting requirements of the Act. The Charlotte Street meeting, however, was not exempt.. The exemptions are found in §

3707 of the Act as follows:

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, candidate appearance, or debate, the purpose of which is to inform the electorate and not to transact public business or to hold discussions relating to the transaction of public business, even though the performance of the members individually or collectively in the conduct of public business may be a topic of discussion or debate at such public meeting.

Va. Code § 2.2-3707G.

In granting the Respondents' Motion to Strike, the trial court erred in narrowly construing what is meant by a "discussion" of "public business" under this section. Significant to the trial court's ruling was the fact that the members in attendance "did not discuss anything with each other as a group of three or otherwise." Contrary to the trial court's ruling, the section does not contemplate that the discussion of public business be limited to a discussion solely among the members present at the function. The section references both a "gathering" of two or more members and the "attendance" of two or more members "at any place or function" where the purpose is the "discussion" or "transaction" of public business.[fn14]

While the term "gathering" may be consistent with the trial court's interpretation in that it implies the members are together as a group, the term "attendance" has no such implication. To "attend" simply means to be present. See The American Heritage Dictionary Of The English Language. Had the General Assembly intended the narrow construction applied by the trial court it would not have added the term "attendance" to the section. It is clear the General Assembly contemplated that mere presence of two or more members "at any place or function" where the purpose is the "discussion" or "transaction" of public business is covered by the Act. In choosing to include the term "attendance" the General Assembly specifically contemplated the instant occurrence where the members attended a function and participated in the discussion of public business with all in attendance at the function.

The trial court further erred in finding that the discussion of public business at the Charlotte Street meeting was merely an "informational forum" for the public and, therefore, exempt from the open meeting requirements. While there was no question that the 20 or so members of the public in attendance at the meeting received information from Mayor Beck, Vice-Mayor Howson and Council member Kelly, the trial record citizens' complaints were, but for the purpose of collecting information as the Mayor of Fredericksburg as to whether there mayor may not be a matter of concern among the citizens." J.A. 710. Vice-Mayor Howson testified that the "main reason" he attended the meeting was to hear the concerns of the citizens about the traffic on Charlotte Street. J.A. 754. The trial record does not support the finding that the meeting was a forum to inform the electorate.[fn15] On the contrary, the purpose of the meeting was to inform the Mayor and other members of the City Council about citizen concerns. Section 3707(G)(ii) makes no exception for meetings intended to inform the public body.

Furthermore, the trial record establishes that this was not just a simple information gathering session. The members in attendance and the public engaged in an active discussion of public business. The testimony revealed that there was an actual discussion and consideration of a variety of options that could be undertaken by the City of Fredericksburg to address the traffic issues concerning public streets. They even conducted an experiment and decided that the posted speed limit seemed "pretty fast".

J.A. 700. This was clearly a function during which public business was discussed.[fn16] The members of public in attendance, voiced their concerns and the council members present discussed with them the possible solutions to the traffic problems. Significantly, the members present asked the two City employees who were present to take certain actions to examine the citizen concerns raised. Moreover, the traffic issues under discussion became a formal action item during a subsequent formal meeting of the City Council. The Charlotte Street meeting clearly involved a discussion of public business that required prior public notice. The trial court erred in finding that the meeting was exempt from the open meeting requirements of the Act.

Construing FOIA to require prior public notice of the Charlotte Street meeting does not discourage free discussion between public officials and citizens. On the contrary, it encourages and facilitates free discussion with all the interested citizens by notifying them of the opportunity to be heard and not merely relying on word-of-mouth or the invitations of private parties. This is the mandate of FOIA as provided by Virginia Code §2.2-3700. The essential problem with the Charlotte Street meeting is that three members of the City Council discussed matters of public business with only a select group of citizens without affording the opportunity for all those citizens who may be interested to attend. Open government is not about responsiveness to "constituents" as argued by Beck et al. FOIA's mandate for open government guarantees equal and free access to the process of government for all citizens.

III. THE CIRCUIT COURT ERRED WHEN IT HELD THAT THE DISCUSSION OF A PROPOSED HISTORIC PRESERVATION COMMITTEE WAS MERELY AN EXCHANGE OF INFORMATION.

The Historic Preservation e-mails which are the subject of Count XIV of the Petition are an example of the Respondents engaging in a prohibited electronic communications meeting prior to a regularly scheduled Council meeting to discuss a new proposal to be raised during the formal Council meeting. The trial court ruled on Summary Judgment that the meeting was not covered because it was for informational purposes only. The court however erred in its ruling by applying an unnecessarily narrow construction of what is meant by the "discussion" of "public business" under the Act. The e-mails in question did not simply "poll" the recipients about their position as is permitted under the Act. The original e-mail initiated a full discussion about the merits of the proposal and resulted in debate and deliberation among the recipients.

A. Statement Of Facts Related To The Historic Preservation Meeting.

Respondents engaged in a prohibited electronic communications meeting prior to a regularly scheduled Council meeting to discuss a new proposal to be raised during the formal Council meeting. The discussion began with Council member Kelly advising the "Gang" (Beck et al.) on August 5, 2002, about his intention at the next Council meeting to propose the establishment of a board to "look into a long term policy for historic preservation." J.A. 158-159. In his e-mail, Kelly discussed the reasons for creating such a board and the potential candidates for the proposed board. Id Kelly further solicited a discussion among the recipients of the e-mail about the concept in general and about his suggestions about who should be on the committee. Id. Specifically, Kelly writes that "Your suggestions on this point, the concept itself, or the make up of the board would be greatly appreciated." J.A. 159.

Mayor Beck and Vice-Mayor Howson respond with e-mails that contain their comments and suggestions. Id This exchange of e-mail clearly constitutes the discussion of public business and clearly establishes that Respondents engaged in a prohibited electronic communications meeting.

The next morning, Vice-Mayor Howson responded to all of the recipients of the original e-mail with a lengthy discussion about the merits of Council member Kelly's proposal. J.A. 161. Howson also added a further proposal to combine the historic preservation board suggested by Kelly with a marketing program of Howson's that had been languishing. Id. Howson wrote:

It would be of great service if I could simply tie your proposal to that work with a statement to the effect that "since Mr. Kelly has offered to take the lead on the preservation issues, TRACT, will now be able to focus on the marketing and streetscape issues."

Id.

Later that same day, Mayor Beck responded with his comments on both Kelly's and Howson's proposals. J.A. 166. There are other e-mails sent between the individual Respondents that were clearly prompted by the original request for a discussion by Respondent Kelly. As it turns out, the proposal was raised by Respondent Kelly at the next formal Council meeting.

The trial court granted Respondents' motion for partial summary judgment and dismissed Count 14. In dismissing the claim, the trial court held that this series of electronic communications was merely an "exchange of information" and therefore not a violation of FOIA. J.A. 671.

B. The Historic Preservation Discussion Between Beck, Howson And Kelly Constituted A Prohibited Electronic Communications Meeting.

Although not stated in the record, the trial court apparently relied upon Virginia Code § 2.2-3710 in finding that the Historic Preservation Discussion did not violate FOIA. In pertinent part, that section provides as follows:

. . . nothing contained herein shall 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, whether such contact is done in person, by telephone or by electronic communication, provided the contact is done n a basis that does not constitute a meeting as defined in this chapter.

Virginia Code § 2.2-3710.

Clearly, there was nothing improper with Council member Kelly making the Historic Preservation proposal at a formal Council meeting. Moreover, it would not have been improper for Kelly to "separately" contact the Council members to solicit their opinion on his proposal. See Virginia Code §2.2-3710. However, by soliciting and engaging in a discussion of the proposal with Beck and Howson jointly through his original e-mail and through the e-mail discussion that ensued, Beck et al. engaged in a prohibited electronic communication meeting. Section 2.2-3710 permits such contact provided that it does not constitute a "meeting." The ruling of the Circuit Court completely ignored the discussion among Beck et al. The Circuit Court also ignored the fact that the "information exchange" was not between all the Council members. Clearly, Beck et al. were trying to achieve a consensus before presenting the proposal to the entire Council.

In sum, Beck, Howson and Kelly assembled informally and exchanged e-mai1s. This exchange of e-mai1s comprised a discussion of public business for the express purpose of attempting to achieve a private consensus (which was achieved) before presenting their proposal to the entire counsel for formal ratification.

RELIEF REQUESTED

Shelton et al. request the following relief from the Court:

A. Deny Beck et al.'s Appeal

1. Uphold the Circuit Court's ruling that Appellants/Respondents Beck, Howson and Kelly violated FOIA with regard to Count XI.

B. Provide the Following Relief on Cross-Appeal

1. Reverse the Circuit Court's ruling on Demurrer that Council members-elect are not covered by FOIA and remand Counts I-IX for further proceedings consistent with this ruling.

2. Reverse the Circuit Court's ruling on the Motion to Strike Count XVII of the Petition and remand for further proceedings consistent with this ruling.

3. Reverse the Circuit Court's ruling on Summary Judgment dismissing Count XIV by requiring that a "consensus" be reached among the participants, remand and direct the entry of judgment against Beck, Howson and Kelly.

Respectfully submitted,

Gordon Shelton, Anthony Jennings, Patrick Timpone.

By Counsel

Footnotes:

1. For a more detailed discussion of these matters, the Court is invited to review Sections I and II of the ACLU's Amicus Curiae brief, which Appellees hereby incorporate by reference.

2. Thomas Jefferson, The Declaration of Independence, para. 2.

3. As U.S. Supreme Court Justice Louis Brandeis noted before he took the bench, "sunlight is said to be the best of disinfectants," Louis D. Brandeis, Other People's Money. and How the Bankers Use It (F. A. Stokes, New York) (1914).

4. "Wireless devices, such as cell phones and personal digital assistants (PDAs), with familiar names such as Palm and Blackberry, now have e-mailing, chat room and instant messaging capability. Some have walkie-talkie features. And some feature "text messaging," similar to chat rooms and instant messages." See Brief of Amicus Curiae Coalition for Open Government at 4-5.

5. Amicus Curiae ACLU has an interesting discussion of the concept of "simultaneity" in their brief at pp. 6-9.

6. Appellee's do not quarrel with the Attorney General's opinion in so far as it is limited to its facts: a single e-mail communication from one member to several others is not a meeting. It is when there is a dialogue or discussion wherein the parties clarify their positions and attempt to reach agreement that there is a violation of the statute.

7. The Court should note that ~ 2.2-3710B only provides a "safe harbor" for polling other members using electronic communications such as e-mail. All other e-mail actions are suspect.

8. The Coalition for Open Government makes a number of relevant points about when and how e-mail can be used by local officials without violating FOIA. COG's bottom line is "Members could still communicate with constituents, even constituent groups, via e-mail. They would also be free to forward documents, articles, spread sheets or other information to each other, even when related to public business. Members could express to others their opinion on matters of public business." Brief of Amicus Curiae Coalition for Open Gov't at 9.

9. Cf S. Bill 1322 (Jan. 12,2001), available at http://leg1.state.va.us/cgibin/legp504.exe?011+ful_sb1322 with S. Bill 1322 (as amended Feb. 2,2001), available at http://leg1.state.va.us/cgi-bin/legp504.exe?011+ful_sb 1322E.

10. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

Cal Gov Code 9 54950 (2003) Declaration of public policy.

11. The legislature finds and declares that all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of this state and subdivisions thereof exist to aid in the conduct of the people's business. It is the intent of this chapter that their actions be taken openly and that their deliberations be conducted openly.

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

Rev. Code Wash. (ARCW) 9 42.30.0l0 (2003).

This is identical to California's statement. Cf Note 1 supra.

12. However, this case should be relied upon for the proposition that the exchange of e-mails can constitute a meeting subject to the Act. The court in Wood found that in light of the broad definition of meeting under Washington law, which is similar to Virginia law, and the mandate to construe the statute liberally, again similar to Virginia law, "that the exchange of e-mail can constitute a "meeting." Wood, 27 P.3d at l2l7.

13. If Council-elect members are not expected to follow the provisions of the Act, why are they required to receive and become familiar with the provisions of the Act before they officially take office?

14. This section apparently uses "two or more" as a threshold to cover the situation where two would comprise a quorum.

15. Nor was this a purely social gathering, campaign event, debate, or emergency. J.A. 690-691.

16. Beck even made a reference to the fact that there might be a problem or violation under FOIA when he arrived at the gathering. J.A. 701.

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