Present: All the Justices
BILL BECK, ET AL.
GORDON SHELTON, ET AL.
March 5, 2004
Record No. 030723
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG, John W.
Scott, Jr., Judge
OPINION BY JUSTICE DONALD W. LEMONS
In this appeal, we consider several issues relating to The
Virginia Freedom of Information Act ("FOIA" or the "Act"), Code
§§ 2.2-3700 to -3714, including: 1) whether
"members-elect" are "members" of a public body for the purpose of
application of FOIA; 2) whether the use of electronic mail
("e-mail") for communication between three or more members of a
public body constitutes a "meeting" for the purposes of FOIA; and,
3) whether a particular gathering of citizens attended by three
members of the Fredericksburg City Council constituted a "meeting"
under the Act.
Facts and Proceedings Below
Gordon Shelton, Anthony Jenkins, and Patrick J. Timpone
(collectively, "Shelton") filed an 18-count petition for writ of
mandamus and injunction against William M. Beck, Mayor of the City
of Fredericksburg; W. Scott Howson III, Vice-Mayor of the City of
Fredericksburg; and three Councilmen, Thomas P. Fortune, William C.
Withers, Jr., and Matthew J. Kelly [fn1] (collectively,
"Defendants" or "Beck"). While citing multiple incidents of alleged
violations of FOIA, the gravamen of the complaint was that
Defendants "deliberately e-mailed each other in a knowing, willful
and deliberate attempt to hold secret meetings, avoid public
scrutiny" and "discuss City business and decide City issues without
the input of all the council members and the public." Shelton
asserted that various exchanges of email, face-to-face meetings,
and one public gathering on the streets of Fredericksburg
constituted "meetings" under FOIA for which there was no notice
pursuant to Code § 2.2-3707 and no emergency or other
exception which would relieve the Defendants from the obligations
imposed upon them concerning public meetings.
Defendants prevailed on demurrers or at trial on fourteen of the
eighteen counts and Shelton voluntarily dismissed three other
counts before trial.[fn2] The trial court held that the Act did not
apply to conduct of members-elect of the Fredericksburg City
Council, that certain e-mail communications did constitute a
"meeting" as defined in FOIA, and that a particular gathering of
citizens and council members, the Charlotte Street gathering, was
not a "meeting" under the Act. While holding that Defendants
violated the .
open meeting provisions of FOIA, the trial court found that the
violations were not "willful or knowing," declined to impose any
penalty, and declined Shelton's motion for attorney's fees. The
final order was silent regarding Shelton's request for a writ of
mandamus or injunctive relief. Beck appeals the adverse judgment of
the trial court and Shelton assigns cross-error.
Application of FOIA to "Members-elect"
In Counts I - IX of his petition, Shelton alleged various
violations of FOIA by face-to-face meetings and e-mail
communications between Mayor Beck, Vice Mayor Howson, and then
council members-elect Kelly, Fortune, and Withers. Kelly, Fortune,
and Withers did not become council members until they took their
respective oaths of office and began their respective terms on July
1, 2002. Under the facts of this case, pursuant to Code §
2.2-3701, an informal assemblage of three members may trigger the
application of the open meeting requirements of FOIA.[fn3] In these
counts, Shelton alleges "meetings" between two members of council
and three members-elect. Defendants demurred to Counts I - IX,
asserting that as a matter of law the application of FOIA does not
extend to members-elect of a public body. If FOIA does not apply to
members-elect, then only two members are alleged to have met and
the threshold requirement of an assemblage of three members was not
met. The trial court agreed and sustained the demurrers.
In support of his assignment of cross-error, Shelton argues that
the definition of "public body" specifically contemplates that
"private sector or citizen members" may be included as a part of a
public body, that members-elect have a "statutory obligation to
become familiar with the requirements of the Act," and that the
provisions of FOIA are to be "liberally construed." For these
reasons, Shelton maintains that the provisions of FOIA are
applicable to conduct of a member-elect as if she were a member of
the public body.
Under Code § 2.2-3701, the definition of "public body" is
(ii) any committee, subcommittee, or other entity however
designated, of the public body created to perform delegated
functions of the public body or to advise the public body. It shall
not exclude any such committee, subcommittee or entity because it
has private sector or citizen members.
This provision simply includes committees, subcommittees, or
entities within the types of public bodies covered by FOIA,
irrespective of participation by private sector or citizen members.
It does not expand the meaning of "members" in the definition of
"meetings" also contained in Code § 2.2-3701. Furthermore, the
City Council does not have private sector or citizen members and
did not use a committee or subcommittee structure. The full body or
a quorum of the City Council cannot logically be presumed to be a
committee or subcommittee of itself.
Additionally, it is true that members-elect are to familiarize
themselves with the provisions of FOIA after they are elected and
before they take office.
Any person elected, reelected, appointed or reappointed to any
body not excepted from this chapter shall (i) be furnished by the
public body's administrator or legal counsel with a copy of this
chapter within two weeks following election, reelection,
appointment or reappointment and (ii) read and become familiar with
the provisions of this chapter.
Code § 2.2-3702. However, nothing in this statutory
provision alters the application of FOIA or modifies the meaning of
"members" in Code § 2.2-3701.
Finally, Shelton argues that the statutory admonition of
"liberal construction" found in the policy statement of Code §
2.2-3700(B) justifies extending the term "members" in Code §
2.2-3701 to include "members-elect." We do not believe that the
legislature was inviting the judiciary, under the guise of "liberal
construction," to rewrite the provisions of FOIA as we deem proper
or advisable. To the contrary,
[w]hen the language of a statute is plain and unambiguous, we
are bound by the plain meaning of that statutory language. Thus,
when the General Assembly has used words that have a plain meaning,
courts cannot give those words a construction that amounts to
holding that the General Assembly meant something other than that
which it actually expressed.
Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d
680, 682 (2002) (citations omitted).
We will not rewrite Code § 2.2-3701 to change the word
"members" to the phrase "members or members-elect." It is not our
prerogative. If the legislature chooses to do so, it is properly
within its power to do so. The trial court did not err in holding
that the open meeting provisions of FOIA did not apply to meetings
of members of a public body that reach the required threshold of
participants under Code § 2.2-3701 only by inclusion of
It is not disputed that on several occasions after July 1, 2002,
more than three members of City Council corresponded with each
other concerning specific items of public business by use of
e-mail. It would serve no useful purpose to relate the particular
subjects of the communications because the issue before us involves
the method of communication.
Succinctly stated, assuming all other statutory requirements are
met, does the exchange of e-mails between members of a public body
constitute a "meeting" subject to the provisions of FOIA? Beck
assigns error to the trial court's holding that it does.[fn4]
Indisputably, the use of computers for textual communication has
become commonplace around the world. It can involve communication
that is functionally similar to a letter sent by ordinary mail,
courier, or facsimile transmission. In this respect, there may be
significant delay before the communication is received and
additional delay in response. However, computers can be utilized to
exchange text in the nature of a discussion, potentially involving
multiple participants, in what are euphemistically called "chat
rooms" or by "instant messaging." In these forms, computer
generated communication is virtually simultaneous.
In the case before us, the e-mail communications did not involve
virtually simultaneous interaction. Rather, the e-mail
communications at issue in this case were more like traditional
letters sent by ordinary mail, courier, or facsimile. The record
contains printed copies of the e-mails in question. The shortest
interval between sending a particular e-mail and receiving a
response was more than four hours. The longest interval was well
over two days.
The trial court held that such use of e-mail constituted a
"meeting" pursuant to Code § 2.2-3702 and that Defendants held
such meetings in private, without notice to the public and without
opportunity for the public to attend in violation of the open
meeting requirements of Code § 2.2-3707. The trial court held
that the issue was not the electronic nature of the transmission;
rather, "It is how the e-mail is used." While we agree with the
trial court that "how the e-mail is used" is the dispositive
consideration, we disagree that this case presents circumstances
constituting a "meeting" for the purposes of FOIA.
FOIA deals with public access to records and meetings of public
bodies. There is no question that e-mails fall within the
definition of public records under Code § 2.2-3701. As
previously stated, the issue in this case is whether the exchange
of e-mail also constitutes a "meeting" under FOIA. Code §
2.2-3708 provides that
[i]t shall be a violation of this chapter for any political
subdivision or any governing body . . . to conduct a meeting
wherein the public business is discussed or transacted through
telephonic, video, electronic or other communication means where
the members are not physically assembled.
By definition, a violation under § 2.2-3708 presumes a
"meeting" as defined in FOIA. Code § 2.2-3701 provides in
"Meeting" or "meetings" means the meetings including work
sessions, when sitting physically, or through telephonic or video
equipment pursuant to § 2.2-3708, 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. The gathering of employees of a public
body shall not be deemed a "meeting" subject to the provisions of
Clearly, the conduct in question did not involve "sitting
physically" in a "work session." Consequently, the key to resolving
the question before us is whether there was an "assemblage." The
term "assemble" means "to bring together" and comes from the Latin
simul, meaning "together, at the same time." Webster's Third New
International Dictionary 131 (1993). The term inherently entails
the quality of simultaneity. While such simultaneity may be present
when e-mail technology is used in a "chat room" or as "instant
messaging,"[fn5] it is not present when e-mail is used as the
functional equivalent of letter communication by ordinary mail,
courier, or facsimile transmission. The General Assembly
anticipated this type of communication when it provided:
nothing contained herein shall be construed to prohibit (i)
separately contacting the membership, or any part thereof, of any
public body for the purpose of ascertaining a member's position
with respect to the transaction of public business, whether such
contact is done in person, by telephone or by electronic
communication, provided the contact is done on a basis that does
not constitute a meeting as defined in this chapter . . .
Code § 2.2-3710(B). Under the terms of this provision, it
is anticipated that some electronic communication may constitute a
"meeting" and some may not. As previously stated, the key
difference between permitted use of electronic communication, such
as e-mail, outside the notice and open meeting requirements of
FOIA, and those that constitute a "meeting" under FOIA, is the
feature of simultaneity inherent in the term "assemblage."
The Attorney General of Virginia has had occasion to render an
opinion on this subject. 1999 Op. Atty. Gen. 12. The question
presented to the Attorney General was "whether § 2.1-343.1(A),
a portion of The Virginia Freedom of Information Act, §§
2.1-340 through 2.1-346.1 of the Code of Virginia, prohibits an
elected member of a local governing body from sending electronic
mail communications to three or The Attorney General did not
consider the dynamics presented in "chat rooms" or "instant
messaging," but did consider the precise use of e-mail at issue in
this case. For the purposes of the Opinion, the Attorney General
used the following definition: more other members of the governing
Electronic mail is commonly understood to be the electronic
transmission of keyboard-entered correspondence over communication
networks. An electronic mail system enables the sender to compose
and transmit a message to a recipient's electronic mailbox, where
the message is stored until the recipient retrieves it. The message
may be sent to several recipients at the same time.
Id. at 13. Concluding that "[t]ransmitting messages through an
electronic mail system is essentially a form of written
communication," the Attorney General opined that such communication
does not constitute a "meeting" under FOIA. Id.
While it is not binding on this Court, an Opinion of the
Attorney General is "entitled to due consideration." Twietmeyer v.
City of Hampton, 255 Va. 387, 393, 497 S.E.2d 858, 861 (1998). This
is particularly so when the General Assembly has known of the
Attorney General's Opinion, in this case for five years, and has
done nothing to change it. "The legislature is presumed to have had
knowledge of the Attorney General's interpretation of the statutes,
and its failure to make corrective amendments evinces legislative
acquiescence in the Attorney General's view." Browning-Ferris, Inc.
v. Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06
We hold that the trial court erred in its determination that the
e-mail communications at issue in this case constituted a "meeting"
under FOIA. Count XI of Shelton's petition must fail because it is
premised upon e-mail communications constituting a meeting under
E-mails Concerning Historic Preservation
In Count XIV of Shelton's petition, it is alleged that a
"meeting" took place by e-mail communication between at least three
members of City Council. The trial court granted summary judgment
to Defendants, holding that the alleged meeting was for information
purposes only and was not for the purpose of discussing public
business. Shelton assigns cross-error to the trial court's holding.
Shelton argues that the trial court too narrowly construed what it
means to "discuss" the public's business. It is unnecessary to
address this assignment of cross-error because we have held that
the e-mail communications at issue in this case do not constitute a
"meeting" under FOIA.
The Charlotte Street Gathering
In July, 2002, citizens living near the intersection of
Charlotte and Weedon Streets in the City of Fredericksburg were
concerned about the lack of a stop sign at the intersection and
other issues related to traffic safety. Two city employees and
three members of City Council were separately invited by concerned
citizens to attend a gathering at the intersection in the middle of
the day on July 25, 2002. Approximately 20 people were in
attendance. After hearing testimony and the arguments of counsel,
the trial court found as a matter of fact that the gathering
scheduled as a consequence of citizen inquiry; that the
meeting's purpose, in essence, was an informational forum in
reference to traffic issues in a given neighborhood or on a
specific street; that the three members of Council who appeared did
not, according to the testimony which is uncontradicted, . . .
discuss anything with each other as a group of three or
On appeal, Shelton maintains that such a gathering was a
"meeting" under the terms of FOIA. We disagree. The public policy
of the Commonwealth "ensures the people of the Commonwealth ready
access to public records in the custody of a public body or its
officers and employees, and free entry to meetings of public bodies
wherein the business of the people is being conducted." Code §
2.2-3700(B). But FOIA "shall not be construed to discourage the
free discussion by government officials or employees of public
matters with the citizens of the Commonwealth." Id. Obviously, the
balance between these values must be considered on a case-by-case
basis according the facts presented. Here, FOIA gives additional
Nothing in this chapter shall be construed to prohibit the
gathering or attendance of two or more members of a public body (i)
at any place or function where no part of the purpose of such
gathering or attendance is the discussion or transaction of any
public business, and such gathering or attendance was not called or
prearranged with any purpose of discussing or transacting any
business of the public body or (ii) at a public forum, candidate
appearance, or debate, the purpose of which is to inform the
electorate and not to transact public business or to hold
discussions relating to the transaction of public business, even
though the performance of the members individually or collectively
in the conduct of public business may be a topic of discussion or
debate at such public meeting.
Code § 2.2-3707(G).
The trial court was not plainly wrong or without evidence to
support its judgment that the Charlotte Street gathering was a
citizen-organized "informational forum" and that no part of the
purpose of the gathering or attendance was the discussion or
transaction of any public business. The undisputed evidence at
trial was that City Council did not have any business pending
before it on the issue of traffic controls, nor was it likely to
have such matters come before it in the future. The trial court did
not err in granting summary judgment to Defendants on Count
The trial court did not err in granting summary judgment for
Defendants on Counts I - IX of Shelton's petition. These counts
were premised upon FOIA being applicable to members-elect of a
public body. Members-elect are not "members" under the plain
language of Code § 2.2-3701. Count XI of Shelton's petition is
premised upon e-mail communications constituting a "meeting" under
FOIA. Under the facts of this case, such e-mail communications did
not constitute a "meeting" under FOIA, and the trial court erred in
holding that it did. The trial court granted Defendants' motion for
summary judgment on Count XIV on the basis that the e-mails were
for informational purposes and did not constitute a meeting. We
need not address this reason for the trial court's holding because
we have already concluded that e-mail communications in this case
did not constitute a "meeting" under FOIA. Finally, the trial court
did not err in holding that the Charlotte Street gathering was not
a "meeting" under FOIA. We will affirm the trial court's judgment
with respect to Counts I-IX and XVII. We will affirm the trial
court's judgment with respect to Count XIV, albeit for different
reasons. We will reverse the trial court's judgment with respect to
Count XI. Having disposed of all matters, and nothing remaining for
the trial court to consider, we will enter final judgment for
Affirmed in part, reversed in part, and final judgment.
1. Fortune and Withers are not appellants herein.
2. Only Counts I-IX, XI, XIV, and XVII are specifically before us
3. The definition of "meeting" in Code § 2.2-3701 would apply
to a quorum, if less than three. Four members represent a quorum of
the City Council; consequently, under the circumstances of this
case, a meeting of at least three members is required before FOIA
open meeting requirements are implicated.
4. Shelton raises for the first time on appeal that a vote was
taken by e-mail. Nothing in the record supports such an allegation
and furthermore it is barred from consideration under Rule
5. This issue is not before us and we do not decide it today.
6. The question was premised upon FOIA prior to its recodification
in Title 2.2 of the Code of Virginia. The language involved is
substantially the same in the recodification. See Code §§
2.1-340 to -- 346.1 (1968).