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January 3, 2001
Ms. Bridgette Blair
The Winchester Star
Winchester, VA
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 telephone conversation of
December 4, 2000.
Dear Ms. Blair:
You have asked whether the use of a proposed e-mail network,
consisting of the members of city council, the city manager, and
the city attorney, among others, would constitute a meeting under
the Virginia Freedom of Information Act (FOIA) and should be
prohibited unless open to the public. The public body refused your
request to be included in the network, and told you that public
access was limited to requests for specific e-mails.
You indicate that this network would be similar to a "mailing
list server" or "discussion group" ("server"). On such an
electronic communications system, each message posted on the server
would be addressed to a server address, instead of individual
user's addresses. The message is then automatically broadcast to
everyone on the server's list as an e-mail message. In order to see
any of the messages posted, one must be on the server list.1
Responses to previously sent messages are sent out the same way, so
that all server participants automatically see them. Thus, every
participant would see and be able to participate in electronic
discussions taking place via e-mail. This differs from ordinary use
of e-mail, where the sender must decide specifically to whom to
send the message, and recipients decide to whom to respond -- to
the initiator of the message only, or to all or some of the other
recipients of the message.
FOIA defines a meeting at § 2.1-341 of the Code of
Virginia. It reads:
"Meeting" or "meetings" means the
meetings including work sessions, when sitting physically, or
through telephonic or video equipment pursuant to § 2.1-343.1,
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.
Section 2.1-343.[fn1] sets forth procedural requirements that
would allow a state body to meet electronically, but the same
section prohibits local bodies, such as the city council, from
meeting by electronic means.
In light of today's technological advances, the discrepancies
between a face-to-face simultaneous discussion and an electronic
exchange are fast diminishing, making it difficult to draw the line
between what type of electronic exchange constitutes
correspondence, and what constitutes an electronic discussion. A
recent opinion of the Attorney General found that transmissions
through an e-mail system from one member of a public body to three
or more members of the same body was a form of written
communication, and thus did not constitute a meeting.[fn2] This
opinion focused on the traditional use of e-mail -- when a sender
chooses the particular recipients of a message. In such a
situation, e-mail is equated with sending a paper memo or letter to
multiple recipients. The situation involving the use of an e-mail
server presents additional issues and concerns, and leads one to
come to a different conclusion as to the nature of the
communication.
As noted above, if a user chooses to send a message via the
server, every participant would automatically see the message.
Likewise, each participant would have the opportunity to respond
and would see all of the other responses to the original message.
Any participant could then respond to a response, and in essence, a
discussion results. In this light, this use of electronic
communications in a server environment appears to be more akin to a
meeting than to mere correspondence. The network would allow an
electronic conversation to ensue, in which ideas concerning public
business could readily be exchanged among all members of a public
body. Members would utilize the system with the intent of
broadcasting a message and receiving all subsequent responses and
discussion of the original message. While this conversation might
not ensue as instantaneously as a face-to-face conversation, the
end result would be the same exchange and discussion of ideas
outside of the public's view.
FOIA dictates that its provisions be construed liberally to
promote an increased awareness by all persons of governmental
activities and afford every opportunity to citizens to witness the
operations of government.[fn3] Subsection B of § 2.1-343
prohibits any meetings through telephonic, video or electronic
means where the members are not physically assembled. In light of
FOIA's policy of openness, the server seems more like an electronic
meeting prohibited by § 2.1-343 than traditional
correspondence. A message broadcast on the server could easily
spark a discussion among the members of the public body, via
e-mail, concerning a matter of public business. Conducting business
on the server would not give citizens the opportunity to witness
the operation of government. Furthermore, only allowing citizens to
request copies of particular e-mails from the server after the fact
removes the citizen from witnessing first-hand the conduct of
government as would take place at a physically-assembled meeting.
As such, FOIA prohibits public bodies from utilizing such
electronic means of communication among the various members of the
body. Allowing citizens to join the server list so that they might
also receive all posted e-mails would not remedy the situation,
since FOIA prohibits any electronic meeting of a local public body,
regardless of whether the public is allowed to participate.
Individual members of a public body could still utilize
traditional e-mail to send correspondence to one or several members
of a public body. When such e-mail and all subsequent responses are
automatically viewed by all members of the public body, however,
the nature of the electronic transmissions crosses the line between
correspondence and discussion. Once a discussion ensues, it is
governed by the meeting provisions of FOIA, which plainly prohibit
any meetings where the members of a local public body are not
physically assembled.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
Footnotes:
1. PC Webopedia Definition and Links (last modified March 6,
1997) (http://www.webopedia.internet.com/TERM/L/Listserv.html).
2. 1999 Op. Atty. Gen. Va. 12.
3. Va. Code Ann. § 2.1-340.1 (Michie 2000).
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