March 1, 2002

Charles A. Landis
Onancock, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence of December 10, 2001, and our discussions during the weeks of January 14 and January 21, 2002.

Dear Mr. Landis:

You have asked whether a meeting that was held by a private organization and attended by members of the Onancock Town Council constitutes a "meeting" under the Virginia Freedom of Information Act (FOIA).

You have stated that the Onancock Town Council scheduled a meeting to discuss the proposed development of land owned by the town. You stated that no public comment would be taken at the town council meeting. Prior to the meeting of the town council, the Onancock Preservation Group (OPG) held its own meeting in the town council chambers.¹ OPG, a private organization, was created to focus on the preservation of historical properties in Onancock. OPG advertised its meeting in the local newspaper, which indicated that the purpose of the meeting was to discuss the preservation of historical properties in the town. No specific properties were mentioned in the advertisement. You alleged that despite the general description of the advertisement, OPG's real purpose was to make its position on such town-owned properties known to the town council members that OPG hoped would attend. You further allege that the mayor and at least the council members in attendance learned of OPG's "political action" agenda via a seven-page email sent to them prior to the meeting. You stated that you did not receive the email because you are not a member of OPG, nor did all of the council members. You stated that the mayor was the past president of OPG and at least one council member present was also a member of OPG.

You stated that minutes were taken of the OPG meeting and were distributed to members of OPG. You also believe these minutes were distributed to the members of the town council who attended the OPG meeting. Finally, you state that you obtained a copy of these minutes. The minutes revealed that the participation of members of the town council was limited to asking clarifying questions and included a comment by one council member that "private groups such as this made better decisions than the Council."

1. Your first question is whether the meeting of OPG, which included the attendance of the mayor and two council members, is considered a "meeting" under FOIA.

Section 2.2-3701 of the Code of Virginia defines a "meeting" 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. A "public body" includes any legislative body; any authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. 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. Under FOIA, a meeting requires the gathering of three or more members, or a quorum of less than three, of a public body and the discussion or transaction of public business (Emphasis added).

Clearly, OPG is not one of the entities enumerated within the definition of a public body. The information you presented also does not indicate that OPG was created by the public body to either perform a delegated function or advise the public body. Therefore, by definition and the plain language of the statute, OPG's meeting cannot be considered a meeting under FOIA because OPG is not a public body.²

Subsection G of § 2.2-3707 permits 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... (Emphasis added).

Whether the three members of the public body may gather at a private meeting without the private meeting becoming a meeting under FOIA hinges on whether the members of the public body "discussed" or "transacted" public business and whether such gathering was prearranged to discuss or transact public business. FOIA does not define "the discussion or transaction of public business."³ Applying the statutory construction rules, in the absence of a statutory definition, a term is considered to have its ordinary meaning given the context in which it is used.⁴ The Webster New Collegiate Dictionary (1977) defines discuss as "to investigate by reasoning or argument." The Attorney General has opinioned that discussions of the public business occurred when the physical gatherings were "for the purpose of deliberating policy or preparing to take action."⁵

The information you presented indicated that OPG conducted the meeting. As you stated, OPG informed the members of the governing body of its desire to obtain rights to the town land. The members of the public body merely attended the meeting. They asked clarifying questions. They did not debate any issues relating to the proposed development of the town land. In fact, the only comment made by one of the members of town council was a statement that private organizations make better decisions than the council. It appears that the council members received information from OPG without actively participating in the discussion. The council members did not deliberate public policy, nor did they prepare to take any actions. Based upon the facts you have presented, the council members did not engage in discussions of public business.

FOIA does not govern the meetings of private entities, nor does it limit the topics that may be discussed in the presence of public officials. Nothing in FOIA prohibits public officials from listening to matters of public concern. To opine that a private meeting would fit within the definition of a "meeting" under FOIA because of the attendance of three public officials without taking into account the public officials' participation in the discussions, even when the topic relates to matters of public concern, would virtually prohibit public officials from attending any private event or meeting. Subsection G of § 2.2-3707 indicates that the legislature did not intend to prohibit members of a public body from attending private events provided that public business is not discussed by such members.

In summary, the meeting held by OPG is not a meeting under FOIA because OPG is not a public body. Three members of a public body may gather at private meetings so long as they do not discuss or transact public business. The members of the public body that attended the private meeting did not discuss public business if they did not actively participate in the discussion, even though the topic of discussion was a matter of public concern.

2. Your second question is whether the records of OPG, (i.e. agendas, minutes, etc.,) are public records.

Based on the foregoing, OPG is not a public body, therefore its records are not public records under FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. You stated that the town council chambers are commonly used by many private organizations for meetings in your town.

2. AO-10-00 (December 12, 2000).

3. There is clearly nothing in the information you presented that amounts to any transaction of public business; therefore, it will not be discussed.

4. Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 Va. 655, 261 S.E. 2d 532 (1980); 1991 Op. Atty. Gen. Va. 413; 1986-87 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., § 46:01.

5. 1984-1985 Op. Atty. Gen. Va. 426.