The Virginia Coalition for Open Government - Fredericksburg FOI Case: Amicus brief of the ACLU of Virginia Inc.

The American Civil Liberties Union of Virginia Foundation, Inc. is a non-profit Virginia corporation affiliated with the American Civil Liberties Union (ACLU), the oldest and largest citizen membership organization devoted to preservation and furtherance of Constitutional rights in the United States. The ACLU has about 300,000 members across the United States, approximately 5,000 of whom are residents of the Commonwealth of Virginia.

Consistent with the Constitutional values of freedom of speech and the democratic form of government, the ACLU in Virginia and nationwide is deeply committed to government transparency and freedom of information, and frequently advocates in the legislature and the courts for these principles.

STATEMENT OF THE CASE

On September 24, 2002, three residents of Fredericksburg filed a petition for mandamus and injunction against the Mayor of Fredericksburg and four other members of the Fredericksburg City Council, alleging multiple violations of the Virginia Freedom of Information Act (FOIA). All but one of the petitioners' claims were dismissed or resolved in the councilmembers' favor.

The remaining claim, Count 11 of the petition, alleged that Mayor Beck and the other councilmembers had violated the open meetings provisions of FOIA by exchanging e-mails pertaining to public business. The Circuit Court agreed with the petitioners, holding that the exchange of e-mail between three or more members of a public body for the purpose of reaching a consensus on public business violates FOIA. Accordingly, the court granted summary judgment to the petitioners on Count 11 of the petition on January 8, 2003.

The respondents filed a Petition for Appeal, and the petitioners cross-appealed. This Court granted the writ of appeal on August 5, 2003.

QUESTION PRESENTED

Does the Virginia Freedom of Information Act, Va. Code § 2.2-3700 et seq., require that electronic mail exchanges among three or more members of a public body conform to the requirements for open meetings?

STATEMENT OF FACTS

Amicus relies on the statements of facts submitted by the parties. For purposes of this Brief, only the following facts are relevant:

Between July 3, 2002 and July 8, 2002, nine e-mail messages were exchanged among Mayor Beck, Vice-Mayor Howson, and Councilmembers Fortune, Kelly and Withers. All of the e-mails discussed a potential candidate for an upcoming vacancy on a regional library board. The length of time between e-mails ranged from just over four hours to over two days.

ARGUMENT

The rapidly expanding importance of the Internet is presenting new challenges in nearly every area of the law. See, e.g., Young v. New Haven Advocate, 315 F.3d 256 (4^th Cir. 2002) (personal jurisdiction); U.S. v. Simons, 206 F.3d 392, (4^th Cir.2000) (search and seizure); Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (freedom of speech). The present case requires the Court to interpret the Virginia Freedom of Information Act, Va. Code § 2.2-3700 et seq. (FOIA), in the novel context of electronic mail (e-mail) communications. Specifically, the Court must determine whether and when e-mail exchanges are "meetings" subject to the notice and access requirements of the statute.

This Brief aims to assist the Court in this analysis by elucidating the role of open meetings in our Constitutional scheme and by surveying the approaches that other courts have taken in addressing similar questions.

I. THE PRINCIPLE OF OPEN GOVERNMENT

In the deliberative democracy that we have chosen as our form of government, the people elect representatives to carry on the public's business.

The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of a republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one is such a limitation of the term of appointments as will maintain a proper responsibility to the people.

The Federalist No. 57, at 318-19 (James Madison) (Clinton Rossiter ed., 1999). In order for this system to work properly, however, the people must have an idea of what their elected officials are doing. Governments "deriv[e] their just powers from the consent of the governed,"[fn1] but any consent, to be meaningful, must be informed.

For this reason, all fifty states have statutes guaranteeing access to public documents and to the meetings of public bodies. Open meetings are particularly important as a window onto the deliberative process of government:

Our society firmly believes, on the one hand, that the right to participate in out democracy includes the right to be informed. The people can have no real power without factual knowledge of what their government is doing to and for them. To be well-informed, the public should have some access to the ongoing process of decision making; not only to know what is done, but also to why it is done and what alternatives are considered and rejected. A truly democratic electorate vitally needs to know this information.

Douglas Q. Wickham, Let the Sunshine In! Open-Meeting Legislation Can be Key to Closed Doors in State and Local Government, 68 Nw. U. L. Rev. 480, 481 (1973). Open meetings allow citizens to hold their representatives accountable, to make sure they are not only doing the right thing but for the right reason. In the presence of their constituents, public officials should be deterred from governing based on their own interests or powerful private interests.

Observing the deliberations of public officials not only gives citizens the opportunity to judge their representatives, but to learn from them. In forming their own opinions on public affairs, individuals may be unaware of the myriad political, moral, and practical considerations involved in public policy. The education provided by public meetings should encourage public participation that is ever greater not only in quantity, but quality.

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 ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. 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.

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. . . .

Va. Code § 2.2-3700 (B).

II. THE VIRGINIA FREEDOM OF INFORMATION ACT

The Freedom of Information Act provides that "[a]ll meetings of public bodies shall be open" subject to narrowly defined exceptions. Va. Code § 2.2-3707(A). "Meeting" is defined as "the 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, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. . ." Va. Code § 2.2-3701.

FOIA forbids local governments from holding electronic meetings. Section 2.2-3707(B) provides that "[n]o meeting shall be conducted through telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business, except as provided [by statute[fn2]]." Likewise, Section 2.2-3708 (A) states that "[i]t shall be a violation of this chapter for any . . . governing body . . . of local government . . . to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically assembled. . . ."

These provisions overrule the Court's holding in Roanoke City School Board v. Times-World Corp., 226 Va. 185, 307 S.E.2d 256 (1983), that a prearranged telephone conference call is not a "meeting." That decision stated that "[i]rrespective of one's preferred definition, whether it be coming together, assembling, gathering, or meeting, the physical presence of the participants is essential." 226 Va. at 192, 307 S.E.2d at 259.

Under the current statute, physical presence is not required for a "meeting" to take place. But an electronic meeting where members are not physically assembled is unlawful. The place of e-mail exchanges such as the one at issue here is not clear on the face of the statute.

III. FACTORS INVOLVED IN THE ANALYSIS OF ELECTRONIC MAIL UNDER THE FREEDOM OF INFORMATION ACT.

If the e-mails exchanged by members of the Fredericksburg City Council are "meetings," they are prohibited by the FOIA. The Attorney General has advised that e-mails are not meetings:

Transmitting messages through an electronic mail system is essentially a form of written communication and, in my opinion, does not constitute "conduct[ing] a meeting . . . through . . . electronic means" as contemplated by § 2.1-343.1(A).[fn2] Accordingly, it is my opinion that § 2.1-343.1(A) does not bar members of a local governing body from sending electronic mail communications to other members of the governing body. All official actions of the governing body must, however, take place at a meeting where the membership is physically present.

1999 Va. Opp. Atty. Gen. 12 (omissions in original). But the opinion adds a caveat: "This is not to say that, in a particular factual setting, communicating through electronic mail could not violate some other provision of The Virginia Freedom of Information Act or conflict with the policy of the Act." Id. n.7. In fact, courts and commentators have considered a number of factors when analyzing e-mail under open meeting statutes.

A. Simultaneity

Perhaps the strongest reason for considering an e-mail exchange not to be a meeting is that it does not necessarily involve all the participants communicating at the same time. We have grown accustomed to "meetings" in which participants are physically separated, such as teleconferences, videoconferences and chat rooms. But the word "meeting" still seems to connote some kind of temporal connectedness, and it seems counterintuitive to use the word to describe exchanges that are hours or days apart.

Nonetheless, both before and after the advent of e-mail, some courts have found violations of open meetings laws even when the communications at issue have not been close together in time. For example, in Blackford v. School Bd. of Orange County, 375 So.2d 578 (Fla. App. 1979), the court held that the state Sunshine Law was violated when a school superintendent held a series of meetings with individual school board members regarding a redistricting problem in the school district. The superintendent's "plan by which his board members would come visit his office in rapid fire succession to discuss, exclusively, this major redistricting problem," Id. at 580, was legally equivalent to a meeting in which everyone participated at once. In State v. City of Cincinnati, 668 N.E.2d 903 (Ohio 1996), the court held that a city council may not circumvent the state Sunshine Law by scheduling back-to-back closed meetings, each of which is attended by less than a majority of the council but which, taken together, are attended by a majority of the body. "To find that Cincinnati's game of 'legislative musical chairs' is allowable under the Sunshine Law would be to ignore the legislative intent of the statute, disregard its evident purpose, and allow an absurd result." Id. at 906.

Other courts have applied this reasoning to serial electronic communications. In Del Papa v. Board of Regents, 956 P.2d 770 (Nev. 1998), serial facsimile and telephone conversations were held to violate the open meeting law. There, the chair of the Board of Regents sent a fax to a majority of board members asking for feedback on a proposed press advisory, and members responded to him by phone. The court held that "a quorum of a public body using serial electronic communication to deliberate toward a decision or to make a decision on any matter over which the public body has supervision, control, jurisdiction or advisory power violates the Open Meeting Law." Id. at 778.

Some courts, in analyzing the propriety of serial communications, have looked to whether public officials have had an improper purpose of subverting the open meetings laws. Thus, in Board of Trustees v. Mississippi Publishers Corporation, 478 So.2d 269 (Mo. 1985), the court held that the use of telephone polls to conduct official acts violated the open meetings act "insofar as such telephone polls in fact circumvent the act by preventing public disclosure of deliberation and conduct of business." However, the court allowed "the recording of final votes by telephone where such vote is reduced to public record and all deliberation prior to the final vote has taken place in accordance with the open meetings act." Id. at 278-79.

Likewise, in Moberg v. Independent Sch. Dist. No. 281, 336 N.W.2d 510 (Minn. 1983), the court held that successive meetings of small groups of school board members Ð together amounting to a quorum Ð did not violate the Open Meeting Law where there was no showing of improper purpose. The court noted that

there is a point beyond which open discussion requirements may serve to immobilize a body and prevent the resolution of important problems. In the instant case, for example, it appears that the private discussions were conducted for the purpose of breaking the deadlock rather than for achieving some secret intended result. All members participate in at least one private meeting, but no clear majority was working together, nor was there any suggestion of improper influence or untoward pressure exerted by any members."

Id. at 517. But the court cautioned that "[i]ntra-agency persuasion an discussion becomes improper when designed to avoid public discussion altogether, to forge a majority in advance of public hearings on an issue, or to hide improper influences such as the personal or pecuniary interest of a public official." Under such circumstances, "serial meetings in groups of less than a quorum for the purposes of avoiding public hearings or fashioning agreement on an issue may also be found to be a violation of the statute depending upon the facts of the individual case." Id. at 517-18. Of course, the problem with such an analysis is how to discern whether an improper purpose exists, and the Moberg court provided no guidance on the matter.

To the extent that the Court determines that temporal proximity is an essential element of a "meeting," it must confront the question of precisely how close together the communications must be. After all, even in the classic form of a meeting, participants (ideally) do not speak all at the same time. An e-mail exchange, like the one at issue here, can take place over the course of days. But e-mail can also be exchanged very rapidly among multiple participants, in a way that more closely resembles a telephone conference call than written correspondence. There seems to be no principled basis for allowing e-mails if five hours elapse between them, but not if only five minutes elapse.

In sum, while simultaneity would appear, at first blush, to be an obvious requirement for a "meeting," many courts have determined that it is not necessarily so, at least when the serial communications are the functional equivalent of a face-to-face meeting.[fn3]

B. Interactivity/Deliberation

A second potential basis for ascertaining whether e-mail communications are "meetings" is the degree of interactivity. Some courts have held that a meeting has not taken place when information flows only in one direction. For example, in Ryant v. Cleveland Township, 608 N.W.2d 101 (Mich. App. 2000), a member of the Cleveland Township Board of Supervisors attended a planning commission meeting to address the commission on a zoning issue. Several other township board members, amounting to a quorum, were present at the meeting, but did not speak. The court held that a "meeting" under the state open meeting law involved "deliberation" on public issues, defined as an exchange of ideas. Since there was no deliberation among the board members, there was no meeting.

Conversely, when an exchange of views does occur, it can violate the open meeting statute even when the conversations take place over a period of time. The North Dakota Attorney General has advised that "there is a threshold at which multiple conversations (in person or over the telephone) on a particular subject, each involving two or three Board members, collectively involve enough Board members (a quorum) that the conversations have the potential effect of forming consensus or furthering the Board's decision-making process on that subject. . . .[I]t is appropriate for a member who was absent from a meeting to contact the other members, if the conversations are limited to finding out what happened at the meeting. Similarly, it would be appropriate for the presiding officer of a governing body to contact the other members to determine which items to include on the agenda of the next meeting, as long as the conversations do not include information-gathering or discussion regarding the substance of the issues on the agenda. It is only when those meetings become steps in the decision-making process (information gathering, discussion, formulating or narrowing of opinions, or action) regarding public business that the open meetings law is triggered." N.D. Atty. Gen. Op. No. 98-0-05.

In Wood v. Battle Ground Sch. Dist., 27 P.3d 1208 (Wash. App. 2001), the court considered an exchange of e-mails regarding public business among a majority of School Board members over several days. The court concluded "that the exchange of e-mails can constitute a 'meeting.'" But the court also "recognize[d] the need for balance between the right of the public to have its business conducted in the open and the need for members of governing bodies to obtain information and communicate in order to function effectively. Thus, we emphasize that the mere use or passive receipt of e-mail does not automatically constitute a 'meeting.'" Id. at 1217. The court went on to explain that the exchange of e-mail is a meeting only if "the participants . . . collectively intend to meet to transact the governing body's official business," and "communicate about issues that may or will come before the Board for a vote. . ." Id.

Similarly, the Kansas Attorney General has concluded that serial e-mail communications may violate the Kansas Open Meetings Act. The Attorney General did "not believe . . . that 'real time' is a necessary condition for an interactive communication to constitute a meeting under [the statute]." Kan. Atty. Gen. Op. No. 98-26. When public officials deliberate by e-mail, "[t]he members have, by any standard, discussed the issue. All that remains is for them to walk into the next meeting and vote. The public will never know why the members voted the way they did, and the purpose of [the statute] is defeated." Kan. Atty. Gen. Op. No. 98-26.

As the foregoing opinions illustrate, the element of interactivity is closely linked with legislative deliberation. As explained supra Part I, public access to the deliberative process is essential if citizens are to hold their representatives accountable for both the actions they take and the reasons they take them.

C. Multi-Factor Approach

In an advisory opinion, the Attorney General of Wisconsin considered both simultaneity and interactivity in his analysis of e-mail exchanges under the open meetings law. Letter from Bruce A. Olsen, Assistant Attorney General of Wisconsin, available at http://www.doj.state.wi.us/dls/docs/100301ltr.doc (Oct. 3, 2000). The Attorney General first likened an e-mail message to an ordinary letter or memorandum, which does not by itself constitute a meeting. But he then went on to explain:

The sender of the electronic mail message, however, has no control over when the message is received or opened, and has no control over whether, when and to whom the recipient replies or forwards the message or its attachments. Because of these inherent features of electronic mail, there is a substantial risk that the transmission of an electronic mail message will result in the near-simultaneous exchange of information between members of a governmental body on a subject matter within the body's realm of authority. In such a circumstance, the closest analogue is the telephone conference call, which has been held to constitute a meeting subject to the open meetings law, including the requirement of prior notice.

Id. The Attorney General therefore anticipated that a court confronted with an e-mail transaction would consider a number of factors, including:

(1) the number of participants involved in the communications; (2) the number of communications regarding the subject; (3) the time frame within which the electronic communications occurred; and (4) the extent of the conversation-like interactions reflected in the communications. To the extent that these factors demonstrate a quality of exchange that more closely resembles a telephone conference call, it is likely that a court would find the communications to be a meeting, held in violation of the open meetings law because it was conducted without the required prior notice. To the extent that the factors demonstrate a quality of exchange that more closely resembles an exchange of correspondence, it is likely that a court would determine that a meeting has not occurred.

Id.

This approach is attractive because it captures the reality that e-mail is both similar and dissimilar to other familiar forms of communication. Depending on the particulars of the case, it can resemble a telephone conference or a traditional letter. As usual, however, a test that is sensitive in particulars can be highly unpredictable. For example, it is hard to discern how the balance of factors described by the Wisconsin Attorney General would work themselves out in the present case. The number of participants (a majority of City Council) and the "conversation-like" nature of the exchange make it seem more like a meeting. On the other hand, there are relatively few e-mails over a relatively long period of time, like an ordinary exchange of written correspondence.

CONCLUSION

The Virginia Freedom of Information Act does not provide clear guidance as to the treatment of e-mail exchanges among members of public bodies. Others addressing this issue have, in various ways, emphasized the elements of simultaneity and interactivity. In considering these and other factors, the Court should bear in mind the central role that open meetings play in our representative system of government.

Dated: September 15, 2003

Respectfully submitted,

THE AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INC.

By Counsel:

________________________________

Rebecca K. Glenberg (VSB #44099)

American Civil Liberties Union of

Virginia Foundation, Inc.

6 North Sixth Street, Suite 400

Richmond, Virginia 23219

(804) 644-8080

(804) 649-2733 (FAX)

Footnotes:

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

2. Electronic meetings are allowed under certain circumstances for state, but not local, public bodies (§ 2.2-3708), for meetings of the University of Virginia Board of Visitors (§ 2.2-3709), and "as may be specifically provided in Title 54.1 for the summary suspension of professional licenses."

3. Since recodified as § 2.2-3708 (A).

4. Some state public meeting statutes specifically provide that only simultaneous discussion can be considered a "meeting." See, e.g. Claxton Enterprise v. Evans County Board of Commissioners, 549 S.E.2d 830 (Ga. App. 2001) (Where state statute defines meeting as occurring "at a designated time and place," serial telephone calls do not constitute a meeting. ) In Virginia, FOIA expressly allows for one kind of serial communication, "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." Va. Code § 2.2-3710(B). But the statute does not explicitly address serial communications for other purposes, such as deliberation of public policy.

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