The Virginia Coalition for Open Government - Fredericksburg FOI Case: Appellant's Reply

• D. The Shelton Plaintiffs' Contention That Mayor Beck, Vice Mayor Howson, and Councilmember Kelly "Voted" By Electronic Means Is Inaccurate and, In Any Event, Barred

• II. FOIA'S OPEN MEETING PROVISIONS DO NOT EXTEND TO MEMBERS-ELECT

• III. THE CITIZEN-ORGANIZED GATHERING AT CHARLOTTE STREET DID NOT CONSTITUTE AN ILLEGAL MEETING

• CONCLUSION

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

INTRODUCTION

The common theme running through the arguments of Appellees/Cross Appellants Gordon Shelton, Anthony Jenkins, and Patrick Timpone (collectively, the "Shelton Plaintiffs") is that the Court should ignore the plain language of Virginia's Freedom of Information Act ("FOIA"), Va. Code Ann. § 2.2-3700, et seq., and should in effect make "new law"[fn1] to override the considered judgment of the General Assembly. By its terms, FOIA permits members of public bodies to send correspondence to each other, and protects the public's interest in open government by requiring that such correspondence be maintained and produced pursuant to a FOIA request. See Va. Code Ann. § 2.2-3704. The Attorney General of Virginia confirms this construction, having opined as recently as 1999 that email correspondence, like all other forms of correspondence, is subject to FOIA's open records provisions but not its open meeting provisions. Indeed, the "solutions" proffered by the Shelton Plaintiffs and their supporting amici not only do violence to the plain language of the statute but would be impossible to implement. For these reasons, the Court should reverse the Circuit Court and hold that FOIA provisions applicable to meetings are necessarily not applicable to communications, such as correspondence.

With respect to the Shelton Plaintiffs' assignments of cross-error, the Court should dismiss the first and third assigned cross-errors because, as explained in the motion to dismiss filed by Mayor Beck, Vice Mayor Howson, and Councilmember Kelly, the Shelton Plaintiffs failed to join all of the necessary parties to their cross-appeal. To the extent the Court reaches the merits of the Shelton Plaintiffs' cross-appeal, the Court should affirm the Circuit Court. Virginia law could not be clearer that the open meeting provisions of FOIA apply only to members of public bodies. Therefore, any effort to expand the term "members" as used in FOIA to include "members-elect" is an unjustified departure from the statute as enacted by the General Assembly. Moreover, the Shelton Plaintiffs' effort to thwart a neighborhood gathering on a public street comer through FOIA's open meeting provisions runs counter to FOIA's clear statement that the statute should not be construed to discourage government officials' tree discussion of matters of public interest with their constituents. The citizen-organized gathering on Charlotte Street was a perfect exercise in American democracy and is not prohibited by FOIA.

ARGUMENT

I. FOIA DOES NOT PROHIBIT THE EXCHANGE OF ORDINARY EMAIL CORRESPONDENCE

A. The Shelton Plaintiffs' Argument Ignores the Plain Meaning of the FOIA Statute

FOIA permits the exchange of correspondence by members of public bodies, and protects the public's interest in open government by making such correspondence subject to disclosure in response to a FOIA request. See Va. Code Ann. § 2.2-3704 (regulating the disclosure of public records). The Shelton Plaintiffs seek to avoid this fact by arguing instead that the exchange of email correspondence, with the lapse in time between an email transmission and any response thereto in all cases in excess of four hours,[fn2] is in actuality a "meeting," and therefore subject to the prohibition on closed meetings.

However, FOIA's definition of the term "meeting" is written specifically to exclude serial communications in that the definition requires an assemblage of the members of the public body:

[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. The General Assembly could have written FOIA to prohibit informal communications of three or more members of a public body, but it chose not to do so. Instead, it prohibited informal communications among three or more members of a public body only if the members are assembled. No construction of the term assemblage can include correspondence that, like letters transmitted through the mail, is viewed by the recipients at various times that are personally convenient. Even the Shelton Plaintiffs define "assemblage" as requiring "a collection of individuals," while the record demonstrates that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly were never "collected" together, but instead simply reviewed their emails at various individually convenient times and places and responded to the extent that they believed appropriate.

The Shelton Plaintiffs suggest that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly have pulled the concept of simultaneity out of thin air. Shelton Plaintiffs' Br. at 11. However, as noted above, the term assemblage, chosen by the General Assembly instead of a broader term such as "communications," necessarily connotes real time communications. The Attorney General certainly recognized that FOIA's definition of "meeting" includes a temporal element in determining that "[t]ransmitting messages through an electronic mail system is essentially a form of written communication and . . . does not constitute 'conduct[ing] a meeting. . . through. . . electronic. . . means' as contemplated by [FOIA]." 1999 Va. Op. Atty. Gen. 12, 1999 WL 463384, at *1 (Jan. 6, 1999).[fn3]

Even though the Attorney General explicitly rested his opinion on the fact that email correspondence is just another type of written communication, and therefore does not constitute the conduct of a meeting, the Shelton Plaintiffs contend that simultaneity plays no role in the Attorney General's analysis. However, Virginia's Freedom of Information Advisory Council recognized - even after the filing of this action - that the absence of simultaneous communication in email correspondence was the determining factor in the Attorney General's opinion that email communications do not constitute a "meeting":

Sending an e-mail is the electronic transmission of correspondence over communication networks and does not constitute conducting a meeting. Thus, the Attorney General concluded that the electronic meetings provision of FOIA did not prohibit a member of a governing body from sending a message, even to multiple recipients at the same time. The underlying theme of the opinion seems to rest on the fact that the use ole-mail does not result in simultaneous communication that occurs when members are sitting together physically.

J.A. 512 (emphasis added).

The Shelton Plaintiffs' other efforts to avoid the clear meaning of the Attorney General's opinion faU equally flat. The Shelton Plaintiffs use an incomplete and misleading quotation from a footnote in that opinion to suggest that the Attorney General found that a member of a public body could send an email to the other members of the public body but that he did not address whether it was legal to respond to that email. Shelton Plaintiffs' Br. at 11-12. In support of this dubious construction, the Shelton Plaintiffs rely on language in footnote five of the Attorney General's opinion stating that the Attorney General "consider[ed] only the basic type of electronic mail system commonly in use today." 1999 WL 463384, at *2 n.5; see Shelton Plaintiffs' Br. at 12. From that fragment of a sentence, the Shelton Plaintiffs submit that the Attorney General's opinion was limited to the situation "in which one member sends electronic mail communications to three or more members without a response." Shelton Plaintiffs' Br. at 12. Of course, the Attorney General determined that FOIA "does not bar members of a local governing body from sending electronic mail communications to other "members of the governing body." 1999 WL 463384, at *2. There is nothing in that ultimate conclusion that excepts responding emails from the notion that emails are just a form of written communication and do not constitute the conduct of a meeting. Indeed, the "basic type of electronic mail system commonly in use" in 1999 certainly included the ability to push a "reply" button to respond to email correspondence.

Moreover, when footnote five of the Attorney General's opinion is read in its entirety, it becomes clear that what the Attorney General excluded from his opinion was electronic means of communication that allowed for real time communication, such as an Internet chat room:

For purposes of this opinion, I consider only the basic type of electronic mail system commonly in use today and as described in the opinion. Thus, I do not consider whether systems exist that contain features making them similar to communications by audio or video means or whether the use of such systems would result in the same conclusion.

Id. at *2 n.5 (emphasis added).[fn4] The record in this case is clear that the correspondence at issue here is garden-variety email, and not a chat room or other electronic system that is similar to audio or video systems in terms of real time communication. Thus, the Attorney General's 1999 opinion is directly on point and it is noteworthy that the General Assembly has not deemed it appropriate to amend FOIA in light of this opinion.

B. The Shelton Plaintiffs and Their Supporting Amici Offer Conflicting Constructions of FOIA That Would Lead to Nonsensical Results

The Shelton Plaintiffs and their supporting amici cannot even agree on what types of email correspondence FOIA would prohibit if their constructions of the statute prevailed. In any event, it is impossible to reconcile the views of the Shelton Plaintiffs with the language of FOIA, and generally would make it impossible for public servants to determine whether or not their use of email correspondence was legal.

The Shelton Plaintiffs advise this Court that "[a]n assemblage by electronic means enables the participants to read and respond over time, it is not restricted to any finite period of time." Shelton Plaintiffs' Br. at 10 (emphasis added). Thus, to the Shelton Plaintiffs, FOIA's definition of "meeting" does not contain a temporal element at all. By way of example, assume that Mayor Beck sent an email communication to Vice Mayor Howson and Councilmember Kelly on January 1. Vice Mayor Howson reads the email within a day or two, but Councilmember Kelly does not read Mayor Beck's email until April 1, either because his computer was broken or he was too busy to read his emails, but that he responds to the email on April 1. Under the Shelton Plaintiffs' reasoning, these two emails sent three months apart would constitute an illegal "electronic meeting," albeit one conducted over ninety days, because their reasoning divorces all concepts of time and space from the definitions of "meeting" and "assemblage."

In addition, the Shelton Plaintiffs' construction of FOIA would result in an illegal "meeting" whenever a letter sent through the mail by a member of a public body to two or more members of the public body generated a responsive letter. Section 2.2-3707 of FOIA prohibits closed meetings. See Va. Code Ann. § 2.2-3707(A) ("All meetings of public bodies shall be open, except as provided in § 2.2-3711."). If an exchange of written correspondence could constitute a meeting, and the concept of assemblage were read out of FOIA's definition of "meeting," then an exchange of letters among three or more members of a public body would run afoul of § 2.2-3707 no matter how much time elapsed between the letters.

The brief of amicus curiae Virginia Coalition for Open Government ("VCOG") proposes that the Court adopt a complicated matrix for determining when an email transmission constitutes an illegal meeting under FOIA, a matrix that bears not the slightest resemblance to the actual provisions of FOIA. See Brief of Amicus Curiae VCOG in Support of Affirmance at 9. VCOG's proposed matrix is internally inconsistent and would lead to irrational results. For example, if Mayor Beck sent an email to two members of the City Council and one of the recipients responded only to Mayor Beck, VCOG would say that there has been no violation of FOIA. Id. However, if the order of the two emails is reversed - so that Mayor Beck sends an email to only one member of the City Council but the recipient responds to Mayor Beck and copies another member of the City Council in his response - VCOG's matrix would result in a finding of illegality. Id. Thus, the transmission of just one email that was sent to two or more other members of a public body might - or might not - result in a FOIA violation, depending on whether there had been any other one-on-one communications, even though FOIA expressly permits one-on-one communications of all types by limiting the term "meeting" to an assemblage of three or more members.

The one common thread in the positions of the Shelton Plaintiffs and the VCOG is that their views of FOIA, if accepted by the Court, would effectively end the use of email correspondence by public officials. In an effort to seem minimally intrusive on the efficient operation of local government, both the Shelton Plaintiffs and VCOG take great pains to stress that their positions, if accepted, would allow public officials to send emails to each other. For example, the Shelton Plaintiffs contend that it is not the initial transmission of an email communication - even to two or more other members of the public body - that creates a FOIA violation, but the "exchange of electronic communications." Shelton Plaintiffs' Br. at 15. According to VCOG, under its "matrix," "Member X can. . . send one e-mail message to all the members as a group." VCOG Br. at 8. However, according to the Shelton Plaintiffs and VCOG, an admittedly legal email communication by one member of a public body to other members magically becomes part of an illegal meeting if one of the recipients happens to send a response. As asserted by VCOG:

Ultimately, the burden is on the recipients of these messages. Recipients must make sure that they are responding only to one other person at a time, not to two or more other members of the same public body.

VCOG Br. at 10.

The absurdity of this position is readily apparent. According to the Shelton Plaintiffs and VCOG, FOIA is clear that Mayor Beck is free to send an email communication to other members of the Fredericksburg City Council. But, they say, Mayor Beck would become a participant in an illegal "meeting" if, for example, Vice Mayor Howson replied to the email and copied Councilmember Kelly on his reply, even though Mayor Beck has no control over Vice Mayor Howson's decision to respond to the email. If that were the law, it would put Mayor Beck at risk of violating the FOIA by sending an initial, admittedly legal, email communication to other members of the City Council, depending on what members (over whom he has no control) do with the email communication. In that case, why would Mayor Beck ever take the risk of sending an email communication to other members of the City Council?

However, amici curiae the Virginia Municipal League ("VML") and Virginia Association of Counties ("VACo"), organizations that represent virtually all of Virginia's cities and counties, have observed that the availability of email communications fosters more effective local government and greater responsiveness of public officials to their constituents. As stated by these amici:

The ability to send and receive electronic mail communications allows constituents to have access to local government officials. In turn, local government officials can be more responsive to their constituents. Not only is communication by electronic mail convenient and quick, it is less expensive than sending regular mail or traveling to a meeting. . .. Unfortunately, the Circuit Court's ruling, if not reversed, would significantly reduce, if not. stop altogether, the use of electronic mail communications.

VML/VACo Br. at 17. It makes little sense to adopt a construction of FOIA that is not only contrary to its plain terms, but which would effectively deny public officials the ability to use efficient and inexpensive means of communication, particularly when the communications produce a written record that is subject to disclosure under FOIA. See Va. Code Ann. §2.2-3704.

The amicus curiae brief filed by the American Civil Liberties Union of Virginia ("ACLU") does not contend that the email communications involved in this action constituted an illegal meeting under FOIA. The ACLU proposes that the Court adopt a "multi-factored" approach to determining whether email correspondence constitutes an illegal meeting, an approach that would evaluate matters such as the degree of simultaneity, the number of participants, the number of emails involved, and the extent to which the email correspondence uses a "conversation-like" style. ACLU Br.at12. This approach suffers from two flaws and would require rewriting the law, an act that only the General Assembly can perform. First, this "multi-factored" approach ignores the plain meaning of FOIA's definition of "meeting," which does not include correspondence. Indeed, the ACLU, unlike the Shelton Plaintiffs, concedes that the Attorney General's 1999 opinion expressly provides that ordinary email correspondence, like that involved in this case, does not constitute a meeting under FOIA. Id. at 6.

The second flaw in the ACLU's proposed approach is that it would leave public officials utterly unable to determine in the first instance whether or not their email correspondence is legal under FOIA. Instead, public officials would be subjected to an after-the-fact judgment of their conduct based on a vague set of factors. The uncertainty that the ACLU's approach would engender, like the approaches suggested by the Shelton Plaintiffs and VCOG, would have the effect of discouraging perfectly innocent use of email correspondence to the detriment of local government and the public at large.

By contrast, the position of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly, and joined in by the Virginia Municipal League and Virginia Association of Counties, is both true to FOIA's language and capable of providing bright-line guidance to local government officials. A rule that simply follows the considered opinion of the Attorney General, and holds that ordinary email correspondence does not constitute a meeting gives effect to FOIA's definition of "meeting" and creates a rule easily followed by public officials and applied by courts. Public officials would know that they can exchange ordinary emails in the same way that they can send each other letters, subject, of course, to FOIA's requirement that such public records be available for public inspection. Public officials who elected to communicate with each other via chat room, or by agreeing to log onto their emails at prearranged times, would know that they are acting at their own risk, as the decision of this Court would have evaluated only the exchange of ordinary email communications.

C. Permitting the Exchange of Ordinary Email Correspondence Does Not Create a "Hole" in FOIA's Coverage

The Shelton Plaintiffs claim that a ruling permitting the exchange of ordinary email correspondence would leave a "hole" in FOIA. Nothing could be further from the truth. One of the most salutary characteristics of email correspondence is that it is quick and economical but, at the same time, leaves a perfect written record of exactly what transpired. Because emails produce written records that are subject to disclosure under FOIA, they are even more favorable to the notions of open government than one-on-one communications in person or by telephone, communications which are unquestionably legal but which produce no publicly available record. Indeed, as noted by the VML and VACo, the City of Fredericksburg has even established an email archive to facilitate the City's response to citizens' FOIA requests for email records. See VML/VACo Br. at16. Thus, a construction of FOIA permitting email correspondence creates no "hole" in FOIA's statutory scheme, as the public's right of access is protected through the open records provisions in FOIA, which make email correspondence subject to public inspection in the same manner as every other type of written public record.

D. The Shelton Plaintiffs' Contention That Mayor Beck, Vice Mayor Howson, and Councilmember Kelly "Voted" By Electronic Means Is Inaccurate and, In Any Event, Barred

Perhaps recognizing the weakness of their claims that email correspondence somehow constitutes a "meeting," the Shelton Plaintiffs argue that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly "voted" by email in violation of § 2.2-3710A. There was no vote. Councilmember Kelly merely announced his support for Bev Cameron's appointment to a regional library board, noting that "[m]y vote is for Bev." J.A. 390. And Vice Mayor Howson conveyed a similar sentiment, stating that he "would also support [Mr. Cameron's] appointment." J.A. 392.[fn5] These statements are mere announcements of the councilmembers' respective positions, conduct that FOIA specifically permits. See Va. Code Ann. §2.2-3710(B). In any event, the Shelton Plaintiffs did not allege in their Circuit Court petition that Mayor Beck, Vice Mayor Howson, and Councilmember Kelly had conducted an illegal "vote" in violation of §2.2-3710(B). See J.A. 1-27. By failing to raise this ludicrous argument in the Circuit Court, the Shelton Plaintiffs are barred from raising it here. Swiss Re Life Co. Am. v. Gross, 253 Va. 139, 144, 479 S.E.2d 857, 860 (1997); see also Va. S.Ct. Rule 5:25.

II. FOIA'S OPEN MEETING PROVISIONS DO NOT EXTEND TO MEMBERS-ELECT

As with their argument regarding email correspondence, the Shelton Plaintiffs ask this Court to rewrite FOIA's definition of "meeting" to change the word "members" to "members or members-elect." The Shelton Plaintiffs do not address the undeniable fact of Virginia law that one does not become a "member" of a public body until taking the oath of office. 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. . . ."). Rather, they try to argue that, having been elected, Councilmember Kelly was a de facto member of the City Council. However, even in the correspondence cited in the Shelton Plaintiffs' Brief, Councilmember Kelly plainly stated that he "will be taking office on July 1, 2002." Shelton Br. at 25. Simply put, if Councilmember Kelly had tried to vote at a City Council meeting prior to being sworn in on July 1, 2002, he would have been prevented from doing so because he was not yet a member of that body. Therefore, the Circuit Court correctly sustained the councilmembers' demurrer as to all counts involving supposed "meetings" prior to July 1,2002 because none of those so-called "meetings" involved the participation of three or more current members of the City Council.

III. THE CITIZEN-ORGANIZED GATHERING AT CHARLOTTE STREET DID NOT CONSTITUTE AN ILLEGAL MEETING

The Shelton Plaintiffs seek to avoid the following undisputed facts: (1) the Charlotte Street gathering was called and organized by private citizens, J.A. 772; (2) neither Vice Mayor Howson nor Councilmember Kelly expected Mayor Beck to attend, J.A. 726, 729, 767-70; (3) Mayor Beck, Vice Mayor Howson, and Councilmember Kelly spoke with various of the gathered citizens, but did not have a conversation with each other, J.A. 706-07, 716, 754-55; and (4) the gathering had been called so that citizens could discuss the potential for a neighborhood stop sign with each other and with their elected officials, and that the decision whether to install a stop sign is not a matter that the City Council deals with, J.A. 738-39. The Shelton Plaintiffs essentially argue that Mayor Beck either should have shunned the citizens who invited him to their gathering, or one of the other councilmembers should have left once Mayor Beck arrived. But FOIA cannot be construed to prevent citizen-organized gatherings such as this, particularly when the issues discussed are not matters of public business. See Va. Code Ann. §2.2-3700; id. §2.2-3707(G). Indeed, under the Shelton Plaintiffs' view of FOIA, a member of a public body could intentionally disrupt a perfectly legal gathering at which two other members of the same public body were present by showing up and in effect forcing the other public officials to leave in order to avoid a FOrA violation. Finally, the Shelton Plaintiffs suggest that Mayor Beck believed that a FOIA violation was occurring because he mentioned FOrA upon his arrival on the scene. However, as Mayor Beck repeatedly testified, he knew full well that the citizen gathering on Charlotte Street was legal but that he had recognized the strong possibility that the Shelton Plaintiffs would sue him over it in an attempt to cause political damage to the Mayor. J.A. 701, 715.

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

[CERTIFICATE OF SERVICE OMITTED.]

Footnotes:

1. The Shelton Plaintiffs conceded at trial that the Circuit Court's ruling constituted "new law" in Virginia. 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.").

2. See J.A. 382-403, 543.

3. Other state attorneys general have come to the common sense conclusion that the term "meeting," as used in state open meeting statutes, does not extend to the' exchange of email correspondence over an extended period of time. See 1996 Md. Op. Atty. Gen. 96-016, 1996 WL 305985, at *2-3 (May 22, 1996); Ark. Op. Atty. Gen. 99108, 1999 WL 182169, at *2 (Mar. 22, 1999); N.D. Op. Atty. Gen. 98-0-05, 1998 WL 1057738, at *4 n.8 (Mar. 3, 1998). The Shelton Plaintiffs do not respond to this authority. Indeed, as discussed in Appellants' opening brief, the only authority relied upon by the Shelton Plaintiffs for their tortured reasoning that email communications constitute the conduct of a "meeting" is Wood v. Battle Ground School District, 27 P.3d 1208, 1212 (Wash. Ct. App. 2001). However the definition of "meeting" in Washington's open meeting statute is broader than Virginia's, and does not include language requiring an assemblage or collection of members for a meeting to occur. Id. at 1216. Indeed, the Wood court explicitly recognized that the result might be different under state statutes with a less expansive definition of the term "meeting." Id. at 1216-17.

4. The Shelton Plaintiffs seek to rely on a 2001 advisory opinion from Virginia's FOIA Council opining that the use of "listservs" is inconsistent with therequirements of FOIA. Shelton Plaintiffs' Br. at 12. Regardless of the merits of that advisory opinion, on which Mayor Beck, Vice Mayor Howson, and Councilmember Kelly express no view, a "listserv" is not the "basic type of email system" referenced in the Attorney General's 1999 opinion, nor did Mayor Beck, Vice Mayor Howson, or Councilmember Kelly use a "listserv" for their email correspondence. Indeed, Virginia's FOIA Council observed in November 2002, after issuance of its opinion on listservs, that email exchanges were not illegal "meetings" under FOIA because they did not result in simultaneous communications. JA. 511-12. Thus, contrary to the Shelton Plaintiffs' contentions, Virginia's FOIA Council did not view its position on listservs as undercutting in any way the Attorney General's opinion on the legality of email exchanges.

5. Ironically, Mr. Cameron was not eligible for appointment to the library board, so his candidacy was never "voted" on by the City Council. J.A. 400.

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