September 22, 2004

Mr. Tom Choman
Fairfax, Virginia 22035-1186

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 August 16, 2004.

Dear Mr. Choman:

You have asked a question concerning the interaction of the Virginia Freedom of Information Act (FOIA) and the federal Americans with Disabilities Act (ADA).¹

By way of background, you indicate that you serve as chairman of the Fairfax Area Disability Services Board ("the Board"). You explain that the General Assembly created a state-level Disability Services Council and established local-level disability services boards. You indicate that the mission of the Board is to "include people with disabilities into mainstream community life by identifying, communicating, and advocating their diverse capabilities and needs to state and local governments and the private sector; and to help provide resources to meet the needs of persons with physical and sensory disabilities." Subsection B of § 51.5-47 of the Code of Virginia requires that each local disability services board have no less than 30 percent of its membership comprised of individuals or family members of individuals with physical, visual, or hearing disabilities. You indicate that members of the Board's executive committee with physical and sensory disabilities would like to meet via telephone to discuss agenda items for upcoming full Board meetings. You do note that the monthly full Board meetings are conducted with the members being physically present.

Subsection A of § 2.2-3708 states that it is a violation of FOIA for any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government or any committee thereof to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communications means where the members are not physically assembled. On its face, this provision would prohibit the Board or any of its committees from holding a meeting under FOIA where the membership was not physically assembled. However, the ADA requires that reasonable accommodations be made for persons with disabilities such that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."² In light of the provisions of FOIA relating to electronic meetings and the requirements of the ADA, you ask how the Board would provide a reasonable accommodation to a Board member with a disability who is not able to be physically present at a meeting while still complying with FOIA.

The question you pose raises an interesting issue relevant not only to local disability services boards, but also to any local public body whose membership includes individuals with sensory or physical disabilities. Upon analysis of the question, however, the answer seems to hinge not on an interpretation of FOIA, which on its face prohibits local public bodies from holding any kind of electronic meeting, but on an analysis of the ADA. Before one can determine whether the requirements of the ADA would supercede the requirements of a state open meetings law, one must first determine what would be a "reasonable accommodation" under the ADA, and whether allowing a local public body to hold a teleconference would be the only means to provide the accommodation required by law. This office only has the statutory authority to interpret FOIA and therefore lacks the requisite legal authority and the expertise to opine on the requirements of the ADA. As a result, I am unable to offer an opinion as to whether allowing a member of the Board with a disability to participate in a meeting via telephone is required by the ADA, despite the clear prohibition found in FOIA. Perhaps this is an issue that should be addressed legislatively by the General Assembly. Alternatively, you may wish to seek an opinion from your county attorney or from the Office of the Attorney General pursuant to § 2.2-505 of the Code of Virginia.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹42 U.S.C.S. § 12131 et seq.
²42 USC § 12132.