TABLE OF AUTHORITIES [OMITTED FROM ONLINE FILE]

• STATEMENT OF THE IDENTITY OF THE AMICI CURAE, THEIR INTERETS IN THE CASE AND THE SOURCE OF THEIR AUTHORITY TO FILE

• ASSIGNMENT OF ERROR

• QUESTION PRESENTED

• STATEMENT OF THE NATURE OF THE CASE

• STATEMENT OF THE FACTS

• SUMMARY OF THE ARGUMENT

• ARGUMENT

• I. THE CIRCUIT COURT ERRED IN FINDING THAT THE EXCHANGE OF ORDINARY EMAIL CORRESPONDENCE CONSTITUTES A "MEETING" UNDER VIRGINIA'S FOIA STATUTE.

• A. Virginia's FOIA Statute Specifically Encompasses "Meetings," Which By Definition

Require At Least An Informal Assemblage.

• B. FOIA Expressly Permits Electronic Communications Among Members to Ascertain Their Positions on Issues of Public Business.

• C. The Circuit Court Failed to Find There Was A Meeting, Looking Instead to Whether a Dialogue or Consensus Was Established.

• D. The Circuit Court Failed To Accord The Proper Deference To The Attorney General's Opinion That Ordinary Email Exchanges Do Not Constitute A Meeting.

• E. If Allowed To Stand, The Circuit Court's Opinion Will Hinder Local Government's Ability To Conduct Business.

• CONCLUSION

CERTIFICATE [OMITTED FROM ONLINE FILE]

STATEMENT OF THE IDENTITY OF THE AMICI CURAE. THEIR INTEREST IN THE CASE. AND THE SOURCE OF THEIR AUTHORITY TO FILE

The Virginia Municipal League ("VML") is an association of political subdivisions of the Commonwealth of Virginia, currently consisting of thirty-nine (39) cities, one hundred fifty-five (155) towns and fourteen (14) urban counties, which is formed and maintained pursuant to §15.2-1303 of the Code of Virginia for the purpose of promoting the interest and welfare of its members as may be necessary or beneficial. VML is an instrumentality of its member political subdivisions.

The Virginia Association of Counties ("VACo") is a non-profit, statewide,  independent association organized in 1934 to support county officials and to effectively  represent, promote and protect the interests of counties to better serve the people of  Virginia. VACo's membership includes all 95 counties and one city. It was formed  and is maintained pursuant to g 15.2-1303 of the Code of Virginia for purposes like  VML and is in like manner an instrumentality of its member counties and city.

The outcome of this case is extremely important to the memberships of VML and VACo in that the case involves issues of great significance to Virginia's political subdivisions, including when electronic correspondence constitutes a "meeting" subject to the requirements of the Virginia Freedom of Information Act ("FOIA"), Va. Code Ann. §§ 2.2-3700, et seq., the ability of their members to rely on Attorney General opinions, and, importantly, their power to use electronic mail communications at all.

If the Circuit Court's decision that various non-simultaneous electronic mail communications constitute a "meeting" is not overruled, local governments will be unsure what weight to accord opinions of the Attorney General and will be constructively prohibited from using electronic communications. Such a prohibition will be burdensome, will retard the responsiveness of our local governments and will diminish the effectiveness of their governing bodies.

VML and VACo have been authorized by their governing bodies to participate as amici curiae in this important case. Accordingly, VML and VACo support the position of the Respondents-Appellants, Mayor Bill Beck, Vice Mayor Scott Howson, and Councilmember Matt Kelly, and urge the Court to reverse the Circuit Court's determination that the electronic mail communications at issue constituted a "meeting" subject to FOIA requirements.

The electronic mail communications at issue did not satisfy the Virginia FOIA definition of "meeting" because there was no meeting as a body or entity or assemblage of persons. The reach of FOIA's open meeting requirements will be expanded impermissibly if the Circuit Court's decision is allowed to stand, particularly when the FOIA statute makes it clear the General Assembly intended to prohibit only closed meetings, not the exchange of information by ordinary electronic mail communication, exchange that is important to members of Virginia's local governments and their constituents.

ASSIGNMENT OF ERROR

1. The Circuit Court erred in holding, as a matter of law, that the exchange of ordinary written email correspondence constitutes a prohibited "meeting" in contravention of the open meeting requirements of the Virginia FOIA, Va. Code Ann. § 2.2-3700 et seq.

QUESTION PRESENTED

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

STATEMENT OF THE NATURE OF THE CASE

At issue in this appeal is the plain meaning of the definition of "meeting" set forth in Virginia's FOIA statute, Va. Code Ann. § 2.2-3700, et seq. Because Virginia's FOIA statute requires defined meetings to be open to the public, if the exchange of electronic mail communications over the course of several days constitutes a "meeting," such exchange would be prohibited by the statute. The Circuit Court erred in ruling that the electronic mail correspondence at issue constituted a prohibited meeting.

This case was filed September 24, 2002, after three Fredericksburg residents (hereinafter the "Shelton Plaintiffs") reviewed documents they obtained through a proper FOIA request. The documents obtained included copies of the emails at issue. The Shelton Plaintiffs then filed an eighteen-count petition in the Circuit Court for the City of Fredericksburg alleging, inter alia, a violation of the FOIA by Fredericksburg Mayor Bill Beck, Vice Mayor Scott Howson, and Councilmembers Matt Kelly, Dr. Tom Fortune and William Withers, Jr. (the "City Councilmembers"). The basis of the alleged FOIA violation was that the City Councilmembers held secret meetings by electronic mail communications, or in person. The alleged "secret meetings" held by electronic mail communications were reflected in the hard copies of the electronic mail communications produced in response to the FOIA request.

The trial court sustained several demurrers of the City Councilmembers. Prior to the trial, the Shelton Plaintiffs voluntarily dismissed three more of the counts. The trial court then granted the Shelton Plaintiffs' motion for partial summary judgment as to Count XI against Mayor Beck, Vice Mayor Howson, and Councilmember Kelly, and denied the summary judgment motion of Mayor Beck, Vice Mayor Howson, and Councilmember Kelly as to this count. The trial court also denied a motion for partial summary judgment against Councilmembers Tom Fortune and William Withers, and dismissed those two defendants. J.A.795. Judgment was entered on January 8, 2003, and Appellants timely noted their appeal. This Court granted Mayor Beck, Vice Mayor Howson and Councilmember Kelly leave to appeal the Circuit Court's ruling on August 5, 2003.[fn1]

STATEMENT OF FACTS

Your Amici Curae incorporate by reference the Statement of the Case and Statement of Facts set forth in Appellant's brief as if fully set forth herein. Your Amici Curae emphasize that there were a total of nine emails between the Appellants concerning a candidate to fill a vacancy on a regional library board. J.A.382-403. These nine emails were exchanged over the course of several days, and the shortest interval between emails was more than four hours. JA. 382-403 (see J.A. 390).  Ultimately, the potential candidate mentioned was not eligible to fill the vacancy on the library board because he did not meet residential requirements. J.A. 400.

SUMMARY OF THE ARGUMENT

The Virginia FOIA statute only prohibits members of political subdivisions from conducting a closed meeting, providing specifically "All meetings of public bodies shall be open. . . ." Va. Code Ann. § 2.2-3707(emphasis added). This unmistakable clear language is an unambiguous statement of the General Assembly's intent to limit Virginia's FOIA requirements to meetings, which term the General Assembly defined.

By statutory definition, a "meeting" requires the gathering of a body or entity, or the informal assemblage of persons, except in specified instances when the meeting is by telephonic or video equipment. Virginia's FOIA statute clearly and unequivocally defines a "meeting" as

[T]he meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to §2.2-3708, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership. . ..

Va. Code Ann. §2.2-3701. Thus, as here, where the communications are not by telephonic or video equipment, the members must be sitting physically (1) as a body or entity, or (2) as an informal assemblage, and the body, entity or informal assemblage must include three members or a quorum, if less than three. The requirement that the political body be sitting, or at least informally assembled, imputes a contemporaneous requirement in the definition of meeting, which requirement is not met here.

Further, the General Assembly has decided specifically not to prohibit members from separately contacting the membership, or any member of any public body, "for the purpose of ascertaining a member's position with respect to the transaction of public business. .. by electronic communications.... " Va. Code Ann. §2.2-3710(B). The emails at issue concerned an upcoming vacancy on a regional library board. J .A. 382-403. Thus, the correspondence at issue concerned the appellants' positions concerning public business.

The Circuit Court also failed to accord deference to the Attorney General's opinion that the plain meaning of "meeting", as defined in the FOIA statute does not include ordinary email correspondence, recognizing such correspondence is "essentially a form of written communication ...." 1999 Va. Op. Atty. Gen. 12, 1999 WL 463304, at *1-2 (Jan. 6, 1999). The General Assembly is presumed to be aware of Attorney General opinions; therefore, its subsequent failure or refusal to  amend the statute to address the opinion is evidence the opinion is correct. Browning-Ferris. Inc. v. Commonwealth. 225 Va. 157. 161-62.300 S.E.2d 603.605-06 (1983).

Finally, while the Circuit Court correctly held not all email communications between three or more members of a public body are a violation of FOIA, its reasoning extending FOIA's reach to the electronic mail communications at issue was erroneous. The Circuit Court looked first to whether a dialogue was established, or whether a consensus was reached, instead of determining whether there was an informal assemblage, or meeting, of the City Councilmembers. J.A.659-61.

The effect of the Circuit Court's decision is to place an unreasonable burden on Virginia's public bodies by imposing requirements not contemplated by Virginia's General Assembly. If not overruled, the Circuit Court's decision will force Virginia's public bodies to provide notice appropriate to a "sitting" meeting when, in fact, they are only exchanging ordinary correspondence. This is an impossible task that will force members of public bodies to stop using such correspondence, both electronic mail and, literally, regular mail. Because such a consequence would expand FOIA's reach and render the members of our public bodies ineffective, it should be avoided.

ARGUMENT

I. THE CIRCUIT COURT ERRED IN FINDING THAT THE EXCHANGE OF ORDINARY EMAIL CORRESPONDENCE CONSTITUTES A "MEETING" UNDER VIRGINIA'S FOIA STATUTE.

A. Virginia's FOIA Statute Specifically Encompasses "Meetings," Which By Definition Require At Least An Informal Assemblage.

The court must apply the plain meaning rule to the interpretation of an unambiguous statute. City of Winchester v. American Woodmark Corp.. 250 Va. 451, 457,464 S.E.2d 148, 152 (1995).

While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.

Id., City of Virginia Beach v. ESG Enterprises. Inc., 243 Va. 149, 152-53,413 S.E.2d 642, 644 (1992).

Virginia's FOIA statute protects the public's interest in local government meetings by imposing requirements to ensure such meetings are conducted in a manner open to the public. See Va. Code Ann. §2.2-3707 (providing "All meetings of public bodies shall be open, except as provided in §2.2-3711."). The plain language of Virginia's FOIA statute imposes requirements only on meetings at which public business is discussed or transacted. Va. Code Ann. §2.2-3708. Specifically, that  section provides as follows:

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

Id. (emphasis added). Thus, by this provision, the General Assembly implements the stated purpose of Virginia's FOIA statute to ensure "every meeting of a public body shall be open to the public...." Va. Code Ann. §2.2-3700B. And while the provisions of the FOIA statute are to be liberally construed, courts cannot ignore the fact that the General Assembly has chosen to regulate the public's access to meetings, not every communication among members of a public body.[fn2] Indeed, the statute specifically provides "[No] record shall be withheld or meeting closed to the public. . .." Id. (emphasis added). The statute goes on to define "meeting" specifically, illustrating the General Assembly's intent to limit the reach of FOIA's requirements to meetings as defined in the statute. The statutory definition of meeting does not encompass the exchange of electronic mail communications over the course of several days.

The FOIA statute defines the term "meeting" as

[t]he meetings, including work sessions, when sitting physically, or through telephonic or video equipment pursuant to §2.2-3708, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership... .

Va. Code Ann. §2.2-3701 (emphasis added). Thus, it is plain that the General Assembly meant that a "meeting" was nothing less than a "meeting," which by definition does not occur unless persons are physically sitting together (as a body or informal assemblage) or are communicating via telephone or video equipment. That is, meeting in such a manner that the participants can see or hear one another.

Section 2.2-3708 only applies to meetings wherein public business is discussed or transacted, through electronic or other communications where members are not physically together, and meetings or work sessions where members are assembled. As emphasized above, the very definition of meeting in §2.2-3701 contemplates (1) sitting physically as a body or entity or as an informal assemblage; or (2) through telephonic or video equipment pursuant to §2.2-3708. Importantly, the General Assembly did not define "meeting" as work sessions through electronic communications pursuant to §2.2-3708, but instead limited the definition to work sessions through telephonic or video equipment. Accordingly, to meet the definition of meeting, the exchange of electronic communications at issue must have occurred among members sitting physically "as a body or entity" or in the context of an "informal assemblage."

Although the FOIA statute does not define "assemblage," it is well settled that in the absence of a statutory definition, a statutory term is given its ordinary meaning in the context in which it is used. Commonwealth v. Orange-Madison Coop. Farm Service, 220 Va. 655, 658, 261 S.E.2d 532,534 (1980), citing Loyola Fed. Savings v. Herndon, 218 Va. 803,805,241 S.E.2d, 753 (1978). "Assemblage" is defined by Merriam Webster's Collegiate Dictionary as "1: a collection of persons or things: GATHERING 2: the act of assembling: the state of being assembled....". By its choice of the word "assemblage," the General Assembly chose to prohibit only "gatherings" of a political subdivision or governing body, and meetings or work sessions through telephonic or video equipment. See Va. Code Ann. §2.2-3701. By its very nature, an assemblage contemplates a collection of two or more people who have the ability to exchange information. Absent an assemblage, there could be no simultaneous exchange of information, a key factor in the definition of "meeting." Having chosen to prohibit only "meetings" and defining the same as "sitting physically... as a body or entity, or as an informal assemblage," except in situations involving telephonic or video equipment, the General Assembly has not included electronic communications in the definition of meeting. Thus, the General Assembly has not extended the FOIA statute to the exchange of information by ordinary emails, absent a showing there was some sort of informal assemblage during the exchange of emails.

Here, there is no dispute that the Councilmembers were not sitting physically or communicating through telephonic or video equipment to conduct a meeting pursuant to §2.2-3708. Further, there was no evidence there was an "informal assemblage" because the emails at issue were sent hours, and in some cases days, apart. J.A.382-403.

The Circuit Court's conclusion that various emails among three City Councilmembers constitutes a "meeting" impermissibly extends the plain language of the FOIA statute to a situation where there was never an "informal assemblage" of Councilmembers. To find that this sort of communication constitutes a meeting would extend the FOIA statute's reach to situations in which city Councilmembers left voicemails on other member's telephone answering services. Further, it would encompass instances in which members wrote letters to each other. Finally, if the court ignores the requirement of an assemblage, the definition adopted by the Circuit Court urged by Appellees would extend to various conversations among members. For example, if Councilman A talked to Councilman B, then Councilman B talked to Councilman C, and Councilman C then talked to Councilman A, the Circuit Court's definition of "meeting" would extend FOIA's open meeting requirements to this exchange of information even though the three never spoke or assembled at the same time. This is an absurd result that the General Assembly specifically sought to prevent when it excluded one-to-one contact from the definition of a "meeting" except in the rare instances in which two persons constitute a quorum. See Va. Code Ann. §2.2-3701. Nowhere in Virginia's FOIA statute can one determine the intent of the General Assembly to extend FOIA's requirements to such communications.[fn3]

B. FOIA Expressly Permits Electronic Communications Among Members to Ascertain Their Positions on Issues of Public Business.

The trial court erred in finding the emails at issue were not permissible communications among members. The FOIA statute states

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

Thus, the FOIA statute expressly permits communications, even electronic communications, among members to ascertain their positions on issues of public business. Va. Code Ann. §2.2-3710(B).

The electronic communications at issue consisted of nine emails, similar to written letters or voicemails, concerning a potential candidate for the library board. There was no "discussion" or transaction of public business. Instead, as contemplated and allowed by the FOIA statute, one member contacted two other members, by separate emails, ascertaining their positions with respect to a potential candidate for the library board. To hold that this communication and the email responses thereto constitutes a "meeting" would rewrite Va. Code Ann. §2.2-3710(B), leaving it meaningless. There could be no situation where a member could separately contact any part of the membership to ascertain a member's position because the contact itself would constitute a meeting. This was not the General Assembly's intent, as clearly shown by the permissive language in Va. Code Ann. §2.2-3710(B).[fn4]

C. The Circuit Court Failed to Find There Was A Meeting, Looking Instead to Whether a Dialogue or Consensus Was Established.

Of course, the Circuit Court was required to find there was a "meeting" before applying the provisions of FOIA that, by their nature, are only applicable to meetings. As noted above, where the communications are not by telephonic or video equipment, the court must find persons were physically sitting as a body or entity, or that there was an informal assemblage. See Va. Code Ann. § 2.2-3701. Here, the trial court improperly read the definition of meeting in § 2.2-3701 to extend to communications by telephonic or video equipment, and to electronic communications, a concept not embraced by § 2.2-3701. See Va. Code Ann. § 2.2-3701. Instead of determining whether the Councilmembers at issue sat as a body or entity, or as an informal assemblage, as required in § 2.2-3701, the trial court looked to whether three or more members communicated "by electronic communications, including e-mail, for the purpose of . .. coming to a consensus, and ... because of the nature of the dialogue that is established, a consensus perhaps is reached, then that is a violation, in the Court's opinion, of the FOIA statute." J.A.659-61. Thus, the trial court failed to look at the elements necessary for the statutory definition of meeting, which elements do not include whether there was a dialogue.

D. The Circuit Court Failed To Accord The Proper Deference To The Attorney General's Opinion That Ordinary Email Exchanges Do Not Constitute A Meeting.

Over four years ago, the Virginia Attorney General concluded: "§ 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." 1999 Va. Op. Atty. Gen. 12, 1999 WL 463384 at *1-2 (Jan. 6, 1999)(footnotes omitted).[fn5] The Attorney General based his conclusion on the fact that the FOIA statute "prohibits a local governing body from conduct[ing] a meeting through any communication means other than the physical assembly of its members." Id. at * 1. And the Attorney General concluded "the basic type of electronic mail system commonly in use today" does not constitute a meeting. ..." Id. at *2 n.5

Section 2.1-343. 1 (A)[fn6] means other than the physical assembly of its members. It does not, however, prohibit all forms of communication among the members of a local governing body when that body is not physically , assembled or sitting. In fact, § 2.1-343.2 expressly provides that, while the transaction of public business must be authorized by votes taken at public meetings, this requirement is not to be construed "to prohibit separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member's position with respect to the transaction of public business."

....

Transmitting messages through an electronic mail system is essentially a form of written communication and, in my opinion, does not constitute "conduct[ing] a meeting ... through ... electronic ... means" as contemplated by §2.1-343. 1 (a). Accordingly, it is my opinion that §2.1343.1 (A) does not bar members of a local governing body from sending electronic mail communications to other members of the governing body. All official actions of the governing body must, however, take place at a meeting where the membership is physically present.

Id. at *1-2 (emphasis added)(footnote omitted).

Although the Attorney General's opinion is not controlling authority or binding, it is illustrative of legislative intent and it serves as a guideline for the benefit of public officials. See Richard L. Deal and Associates, Inc. v. Commonwealth, 224 Va. 618, 621-22,299 S.E.2d 346,348 (1983); Bd. of Supervisors v. Marshall. 215 Va. 756, 762, 214 S.E.2d 146, 150 (1975) (recognizing Attorney General's construction of statute entitled to due consideration).

With respect to legislative intent, "The Legislature is presumed to have knowledge of the Attorney General's interpretation of the statute[s], and its failure to make corrective amendment evinces legislative acquiescence in the Attorney General's view." Browning-Ferris. Inc. v. Commonwealth, 225 Va. 157, 161-62,300 S.E.2d 603, 605-06 (1983) (citations omitted).

When this case was tried in December 2002, the Attorney General's opinion had been in effect for almost four (4) years. Although § 2.2-3701 was amended in 2001, the General Assembly did not extend the amendment to include email communications in the defamation of meeting where the members were not sitting as a body or entity. Indeed, it chose only to extend the defamation to encompass communications by telephonic or video equipment. See Va. Code Ann. § 2.2-3701. And the General Assembly did not make any further amendments during the 2002 session (or the 2003 session after the trial). Given the General Assembly's lengthy acquiescence to the Attorney General's Opinion, the trial court should have followed the Attorney General's opinion as the proper interpretation of the statutory provision at issue.

For the past four years, local governments have relied on the Attorney General's opinion regarding emails. The contrast between the Circuit Court's opinion and the Attorney General's opinion highlights the conflict presented to Virginia's public governing bodies. While members of those bodies thought they were justified in relying on the Attorney General's opinion, they are now subject to a legal actions citing the Circuit Court's opinion if they exchange information electronically, without instantaneous replies, similar to exchanging letters or leaving voicemails to each other. However, if members act in accordance with the Attorney General's opinion, electronic communications sent hours - or even days apart - could not constitute a meeting. In fact, such electronic communications are indistinguishable from letters or voicemails sent from one member to another. Nothing in Virginia's FOIA statute supports an argument that the exchange of letters or voicemails was intended to constitute a meeting; however, the Circuit Court's opinion opens the door to this absurd result.

E. If Allowed To Stand, The Circuit Court's Opinion Will Hinder Local Government's Ability To Conduct Business.

Pursuant to Virginia's FOIA requirements regarding the retention of records, electronic mail communications are retained or archived and are available for public viewing upon a proper FOIA request. Such a request occurred in June, resulting in the review of five thousand (5,000) email printouts to identify those responsive to the request in this case. See The Freelance-Star, August 7,2003 "City plans to archive e-mail" by Elizabeth Pezzullo. The sheer volume of the electronic mail communications being retained illustrates not only how important such communications are, but also how much members of local governments depend on this form of communication.

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. Given the volume of electronic mail handled by Fredericksburg on this single issue, it is clear that both constituents and local government officials are taking advantage of this form of communication. Unfortunately, the Circuit Court's ruling, if not reversed, would significantly reduce, if not stop altogether, the use of electronic mail communications. For example, under the Circuit Court's opinion, a local government official could only respond to a constituent's inquiry regarding public business by responding directly to the constituent. That same local government official could not send his response to other members of local government because, under the Circuit Court's analysis, if more than one member responds to the email, there would be an impermissible meeting. To avoid such a result, the official would have to provide all the notice and other requirements imposed on meetings before sending this email to other local government officials. Such a consequence is not only absurd, it contemplates a procedure (calling an open meeting) that few would take. The result? The local government official may choose to reply to the constituent, but that official does not know the positions of other members and vice versa. Thus, the local government official is unable to respond to the constituent's concerns, a result that diminishes openness in the conduct of governmental affairs.

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 Plaintiff s complaint.

Respectfully submitted,

Howard W. Dobbins (VSB #05394)

Elizabeth M. Horsley (VSB #37429)

Williams Mullen

A Professional Corporation

1021 E. Cary Street

P.O. Box 1320

Richmond, VA 23218-1320

(804) 643-1991

(804) 783-6507 (FAX)

Counsel for Amici Curae

Footnotes:

1. The Court also granted the Shelton Plaintiffs' assignments of cross-error, which crosserror your Amici Curae do not address.

2. Of course, the FOIA statute also governs access to records; however, there is no dispute that copies of the emails at issue were kept properly and produced pursuant to a FOIA request.

3. An internet chat room or other type of situation constituting an informal assemblage (persons seated at their computers) could meet the statutory definition of meeting if simultaneously convened to discuss or transact business. However, extending the reach of the FOIA statute to ordinary electronic mail communications would also extend it to voicemails and letters, a result not intended by the General Assembly, and one that would have a chilling effect on local government's ability to communicate.

4. Indeed, the General Assembly amended this section specifically to allow contact by electronic communication. Compare Va. Code Ann. §2.1-343.2 prior to the amendment, providing:

Unless otherwise specifically provided by law, no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business. . . other than a vote taken at a meeting conducted in accordance with the provisions of this chapter. Notwithstanding the foregoing, 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.

5. The citations are to Virginia's FOIA statute prior to the 2001 amendments; however, there is no substantive difference between the sections cited and those currently found at Va. Code Ann. §§2.2-3707(A)and 2.2-3710(B).

6. The Attorney General's citations are to the FOIA statute prior to the 2001 amendment. There is no substantive difference between the provisions of the FOIA statute cited by the Attorney General and the analogous provisions of the amended FOIA statute. The provisions to which the Attorney General cited in his opinion are found at Va. Code Ann. §2.2-3707(A) and §2.2-3710(B).