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January 16, 2001
Ms. Sandy Hart-Davenport
Damascus, 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 letter of December 11, 2000.
Dear Ms. Hart-Davenport:
You have asked a series of questions concerning meetings of the
Damascus Planning Commission ("the Commission") and the application
of the Virginia Freedom of Information Act (FOIA). You indicate
that you requested, in writing, to be notified of all meetings of
the Commission. On Friday, December 8, the chairman of the
Commission called you at 7:00 p.m. to notify you of a meeting
scheduled for Monday, December 11 at 7:00 p.m. Notice for this same
meeting had also been published in the paper and posted on the
front door of the town hall. The chairman told you that he received
an agenda for the meeting late in the day on December 7, and that a
copy had been delivered to each Commission member during the day on
December 8. Furthermore, he informed you that an agenda packet for
the meeting was available to view at the Town Hall, but you note
that as of 5:00 p.m. Friday, the packet was not there.
1. Your first question is whether the notice given for the
meeting was reasonable under the circumstances. To determine
whether notice was appropriate, one must first determine if the
meeting was a regular, special, or emergency meeting. For regular
meetings, subsection C of § 2.1-343 of the Code of Virginia
requires that notice be posted at least three working days in
advance of the meeting. For special or emergency meetings,
subsection D of § 2.1-343 only requires that notice be
reasonable under the circumstances. Your written request for
notice of all Commission meetings, which you forwarded with your
questions to this office, indicates that the regular meetings of
the Commission are held on the fourth Monday of the month. Based on
this information alone, it appears that the meeting scheduled for
December 11 was not a regular meeting. Therefore, the meeting would
be a special or emergency meeting, requiring notice to be
reasonable under the circumstances. Whether notice was reasonable
in this instance is a question for the court, and not for this
office.
2. Your second question asks if notice was given to you
contemporaneously with notice given to the members of the public
body. You do not indicate specifically when the members were
notified, other than to say that they received a copy of the agenda
earlier during the day that you were notified, or when the meeting
notice was posted at the town hall.
Subsection D of § 2.1-343 requires that notice for special
meetings be given to the public contemporaneously with the
notice provided members of the public body. FOIA contemplates
two different ways that notice may be given to the public. The
general notice provisions at subsection C of § 2.1-343
requires that notice be posted at the office of the clerk of the
public body and at a location where notices are regularly posted.
Additionally, subsection E of § 2.1-343 allows any person to
file a written request to be personally notified of all meetings of
a public body. Section 2.1-340.1 dictates that the provisions of
FOIA should be liberally construed to promote an increased
awareness by all persons of governmental activities and afford
every opportunity to citizens to witness the operations of
government. Reading the various notice provisions together, in
light of this policy of openness, it would appear that when a
public body calls a special or emergency meeting, it must not only
post notice at the two designated locations when it notifies the
members, but must also give notice to those that have requested it
contemporaneously with the notice given to the members.
3. Your third question asks whether members of the Commission
were properly notified of the meeting. You point out §
15.2-2214, outside of the scope of FOIA and relating specifically
to meetings of local planning commissions, which requires the
secretary of a given commission to mail all members written notice
of a special meeting at least five days in advance. This same
section waives the five-day notice if the time and place of a
special meeting were fixed at a regular meeting or if the members
file a written waiver of notice.
Based on the facts you have presented, I am unable to determine
if notice was properly given to the members of the Commission. You
indicate only that the members received a copy of the agenda on
December 8, but not whether this also served as their notice for
the special meeting. Furthermore, I do not know whether the time
and place for the special meeting were set at a previous regular
meeting, or if the members had waived the notice requirement of
§ 15.2-2214.
4. Your fourth question asks if the Commission violated your
written request to be notified of all its meetings. Subsection E of
§ 2.1-343 allows a person to annually file a written request
for notification. Upon receipt of such request, a public body must
give notice of all meetings directly to the requestor and may do so
electronically, so long as the requestor does not object. The
provision does not expressly require that individual notice be in
writing or be given via the same means as is given to the members
of the body. However, it could be inferred that notice of regular
meetings should be given to requesting individuals in writing,
following the spirit of subsection C of § 2.1-343, which
requires written notice to be posted. When time constraints make
written notice impossible or impractical for special or emergency
meetings, it can be inferred that the requestor should be notified
via the same means as members of the public body.
Whether the Commission properly honored your request to be
notified hinges on whether you were given notice contemporaneously
with the members of the public body. As stated in the response to
question two, the facts you present indicate neither when notice
was given to the members nor when posted at the designated
location. Therefore, I cannot make a judgement as to whether your
request to be notified was honored.
5. Your fifth question asks whether there was a violation
concerning access to the agenda packets. Subsection F of §
2.1-343 requires that [a]t least one copy of all agenda packets
and, unless exempt, all materials furnished to members of a public
body for a meeting shall be made available for public inspection at
the same time such documents are furnished to the members of the
public body. You indicate that the agenda was made available to
the members of the public body on December 8. Therefore, a copy of
the agenda should have also been available for public inspection
that day. The copy of the agenda that your forwarded with your
questions indicates that other items, such as applications and site
plans to be considered at the meeting, would likely be available by
3:00 p.m. the day of the meeting. So long as the members did not
have access to this information prior to 3:00 p.m., there is no
requirement that materials be available for public inspection for a
certain amount of time prior to a meeting.
6. Your sixth question asks who is responsible for providing the
members of a public body with a copy of FOIA, and whether it is a
violation to fail to provide it. You indicate that you know that at
least one member of the Commission was not provided with a copy.
Section 2.1-341.1 requires all members of a public body to be
provided with a copy of FOIA within two weeks of election,
reelection, appointment or reappointment. The provision places this
responsibility on the public body's administrator or legal counsel.
Technically, failing to provide a copy of FOIA to the members would
be a violation, because subsection E of § 2.1-346 states that
failure to follow the procedures is a violation of FOIA.
7. Your seventh question asks if a violation has occurred, who
is responsible -- the Commission as a group, the chairman or
secretary of the Commission, or the town attorney or administrator.
In enforcement proceedings, a petition for injunction or mandamus
under § 2.1-346 would be brought against the public body as a
whole. However, if during the course of an enforcement action for
injunction or mandamus the court finds that a particular member
willfully and knowingly violated FOIA, the court may impose
civil penalties against such member in his individual capacity
pursuant to § 2.1-346.1.
8. Your final question asks about how to proceed if a violation
has occurred. FOIA provides enforcement mechanisms in §
2.1-346, and allows any person denied a right or privilege granted
under FOIA to file a petition for mandamus or injunction against a
public body. A single denial of rights under FOIA is sufficient to
invoke a cause of action.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
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