E-mail meetings hurt open government in Virginia

by Forrest "Frosty" Landon
Reprinted from the Fredericksburg Free Lance-Star, Oct. 19, 2003.

There's an old saying that suggests if you're not confused by a complicated issue, you're clearly misinformed.

The Fredericksburg City Council e-mail case, now headed to the Virginia Supreme Court, has a lot of folks confused—and a lot more misinformed.

Strip away confusion and misinformation, and what's really at stake is the commonwealth's decades-old statute that broadly mandates open meetings of governmental bodies and bans outright any electronic meeting, in any form and at any time, by any city, county or town.

In Virginia, we don't recall governors or load a ballot with pure-democracy initiatives; our form of Madison-type representative government generally empowers public officials to act on our behalf—and we wait for the next election to applaud good public servants and throw out the bums.
In the e-mail case, that's threatened.

"Affairs of government are not intended to be conducted in an atmosphere of secrecy," the Virginia Freedom of Information Act reminds us. Exceptions to this FOIA mandate are to be narrowly construed; public-meeting guarantees must be broadly interpreted.

That's so policy deliberation and decision-making—not just pro forma public votes—occur in the sunshine. Otherwise, James Madison's theories come unraveled. We can hardly cast informed votes if we can't observe governmental deliberations as they take place.

Our coalition's board of directors believes "use of e-mails to discuss public business among three or more public officials (or between two, if a quorum) must be subject to rules for public meetings."

That issue is at the heart of Beck v. Shelton.

As Fredericksburg Circuit Judge John Scott found, when three or more members of the Fredericksburg City Council exchanged e-mails, public business got discussed—and that constituted an impermissible meeting.

(Where we think Judge Scott erred was in holding that one e-meeting was illegal because "consensus" was reached—and another, lacking such consensus, was legal. FOIA makes no such distinction, nor should it.)

Gutting the open-meetings law is certainly not Mayor Beck's intent; nor is it the intent of his allies, the Virginia Municipal League and the Virginia Association of Counties. All are members of our coalition; all share our open-government principles. But we're dealing here with an area of untested law; neither Beck nor his associates, in my judgment, was acting in bad faith. Nor should the General Assembly be faulted for failing to define fully an e-meeting-by computer; the law seldom keeps up with technology, in Richmond or elsewhere.

Fatal connection'
But the FOI statute explicitly covers "informal assemblages." My dictionary offers lots of common-sense definitions of "assemblages" and "assemble." One speaks of "connecting," another of "coming together." Narrowly (or broadly) interpreted, that covers a "meeting" by computer—a meeting that's clearly illegal if three or more local officials exchange public-business messages.

As we've said in a friend-of-the-court brief, because e-mails can so rapidly be sent, received, responded to, and further discussed, an electronic meeting occurs before participating members of a local public body even realize it.

Nobody doubts the legality of a one-on-one e-mail exchange (when not involving a quorum), or the legality of an e-mail sent by one elected official to all or several other members of a public body. Members of a public body may separately contact other members to ascertain their positions on any public issue. Recipients can respond to the sender, or they can have a one-on-one exchange with another recipient.

What they must not do is click "reply all" or in any way respond so the whole group is privy to the exchange. At that point the communication is not like letters, a fax, or voicemail; it must be treated as an illegal meeting. If elected officials can figure out any e-mail system, they can find the "reply to sender" button. That's not an onerous expectation; it won't discourage good people from seeking public office, and it won't paralyze local government in Fredericksburg, Fairfax, or Fries.

Premising the existence of an illegal meeting on whether messages were exchanged "simultaneously," as some also urge, simply does not give local officials a workable solution—or citizens an open-government guarantee.

Public bodies would be left to define simultaneity. "Chat room" and "instant messaging" discussions obviously would be covered, but what about two "IM" members exchanging views—and a third providing a deliberately delayed response?

(An unscrupulous official could sit poised by his computer, waiting for the requisite amount of time to elapse before continuing the exchange—or manipulating a computer's internal clock to post-date the actual time his e-mail was sent.)

A 1999 opinion by the state attorney general holds that a single member of a governing body could send e-mail to several other members. Nobody quarrels with that ruling, for it involves only one-way, "garden variety" e-mail sent to at least two other elected officials. But it should not be stretched to cover back-and-forth exchanges among three or more officials. Those who misstate the opinion do a disservice to the AG.

Voice of authority
Much more on point is the 2001 opinion from the Freedom of Information Advisory Council—an agency created by the legislature in 2000 to foster FOIA compliance and provide authoritative, impartial interpretations of open-government law. Its opinions are "presumed to be correct and entitled to great weight unless plainly wrong," a senior assistant attorney general has properly stated.

The advisory council opined that when "e-mail and all subsequent responses are automatically viewed by all members of the public body the nature of the electronic transmission crosses the line between correspondence and discussion."

To date, that's the only Virginia opinion that's grasped some of the knotty e-mail issues raised in Beck v. Shelton.

Whatever the various debates about e-mail meetings, one thing remains inarguable: officials' e-mails are clearly subject to Virginia's public-records law. When electronic messages deal wholly with public business, they thus can be inspected and copied by any Virginia citizen (whatever the motive—political mischief or otherwise). Likewise, if contents are partially exempt from disclosure, a record custodian must always excise the confidential portions—and disclose everything else.

Some suggest that e-mails are a great boost to public access, establishing a "paper" (i.e., digital) trail that never existed when such officials used the phone or the street corner to govern in the shadows. Indeed, when e-mails are archived at a single access point, as now occurs in Fredericksburg, access to documents may well be enhanced.

But this argument ("e-mail meetings don't matter!") fails to address a potentially far greater downside: If exchanges of electronic mail are not subject to e-meeting rules, public meetings will become less frequent and more meaningless—a post-discussion record may be attainable, but only if citizens have the time or know-how to obtain it. And if obtained, it may come too late for anybody to have input before a pro forma public vote.

(Even if record access is timely, e-mails won't capture what only the human eye will observe at a face-to-face meeting.)

To keep local government fully transparent in the Internet age, the Virginia Supreme Court should uphold the heart of Judge Scott's opinion. For, as the Fredericksburg Circuit Court wisely sensed, improper electronic meetings can easily occur when "assemblages" of elected public officials gather at the computers, simultaneously or not.