Local governments and public access advocates will look to the Virginia Supreme Court in 2004 for resolution of the hot-button issue of the times: can the use of e-mail by members of a public body ever be considered to be an illegal electronic meeting.

Electronic meetings are not allowed at the local level; they are allowed only on a limited basis for state agencies.

Shortly after publication of the June 2003 edition of NEWS, Virginia's high court agreed to review the case of Beck v. Shelton from Judge John W. Scott's Fredericksburg Circuit Court. The court will hear oral arguments on the case Thursday, Jan. 15, at 9 a.m., with a ruling likely on March 5, April 23, June 11, Sept. 17, Oct. 31 or Nov. 5, the last day of each of the court's sessions throughout the year.

In December 2002, Scott ruled that an e-mail exchange between Fredericksburg Mayor Bill Beck, Vice Mayor Scott Howson and Councilman Matt Kelly was an improper electronic meeting because the messages were used to reach consensus on a matter of public business: who to appoint to a city government vacancy. Scott ruled that another e-mail exchange was not an illegal electronic meeting because the messages merely passed on information to fellow council members, they were not part of a consensus-building discussion.

The case was brought by Gordon Shelton, Anthony Jenkins and Patrick J. Timpone, political rivals of the three officials,

Both sides appealed the rulings, which also included two issues unrelated to e-mail. Beck stressed in the "Brief of Appellants" that FOIA allows e-mail correspondence among members, "though subject to production in response to a FOIA request[.]"

Beck argued that there was no meeting because a "meeting" under FOIA's terms "cannot exist unless either the public body is physically sitting, or sitting as a body through telephonic or video equipment, or where there is an informal assemblage of three or more members of the public body." There is no assemblage when public body members are sitting down to their computers at different times over the course of several hours to read and respond to e-mail. These exchanges are nothing more than letter correspondence, Beck said, though he did concede that the simultaneous exchange of messages in a chat room would constitute an electronic meeting.

Beck also pointed out that FOIA explicitly allows one-to-one polling of public body members by e-mail to ascertain positions on issues of public business. The Beck camp also said Scott's ruling ignored a 1999 Attorney General's opinion that said a single e-mail sent from one member of a public body to several others on that same body did not constitute a public meeting.

Finally, Beck argued that Scott's ruling "has the effect of impeding good government" by making officials less accessible to their constituents via e-mail.

The "Brief of Appellees" stressed that, when taken as a whole, the e-mail exchange constituted a dialogue among the three officials.

Shelton argued that there was indeed an informal assemblage, that the term was deliberately broad, and that an assemblage is not restricted to any finite period of time. Limiting that term to instances where the members agreed to be sitting at their computers at the same time would "put the power to determine whether or not a meeting had taken place in the hands of the very people who might have reasons to prevent the public from obtaining the very knowledge necessary to ensure that FOIA's ideal of open government with decisions arrived at openly is achieved."

Shelton argued there is no requirement in FOIA that there be simultaneous interaction for a meeting to have occurred. Plus, the AG's opinion did not address aback-and-forth exchange. An opinion by the Freedom of Information Advisory Council did, however, find that some electronic correspondence, even when not instantaneous, would result in an exchange and discussion of ideas outside of the public view.

Finally, Shelton said that to accept Beck's argument that e-mails are nothing more that letter correspondence "is to ignore the legislature's prohibition on discussing and voting on the public's business using electronic communications[.]"

(Beck filed a reply brief, too.)

The Virginia Municipal League and the Virginia Association of Counties filed a joint friend-of-the-court brief in support of Beck. The brief echoed the same arguments regarding informal assemblages, one-on-one polling and giving deference to the AG's opinion. It also expressly rejected Scott's reliance on consensus-building as the key element instead of whether a meeting had physically occurred.

VML and VACo also hammered away at the notion that Scott's ruling, if allowed to stand, would diminish government efficiency and responsiveness.

The ACLU filed a neutral amicus brief that chronicled how other state courts and statutes have addressed e-mail. Some states require that there be simultaneous exchange of information before a meeting has occurred; some require interactivity and deliberation; and some take a multi-factor approach. The ACLU did not urge Virginia's Supreme Court to adopt one approach over another, just to "bear in mind the central role that open meetings play in our representative system of government."

The Virginia Coalition for Open Government filed an amicus brief supporting Scott's ruling on the e-mail meeting, though not for the same reasons given by Scott. The Coalition's position is that FOIA prohibits the back-and-forth exchange of e-mail between three or more members of the same public body. The Coalition proposed the bright-line rule so that officials would know exactly what was permissible e-mail use and what was not.

The Coalition also noted technical problems with making "simultaneity" a prerequisite to finding an electronic meeting, as well as acknowledging that emerging technologies, such as PDAs, text-messaging on cell phones and chat rooms, will also be implicated by a court ruling on the status of e-mail as electronic communication.

The Coalition pressed the court to give deference to the FOI Advisory Council's opinion, as it would be the first acknowledgement by the state's high court of the council's expertise on FOIA.

The Coalition brief was filed by Wise County Clerk of Court, and board member, Jack Kennedy; board member Harry Hammitt, publisher of Access Reports; and Megan Rhyne, the Coalition's associate director.