FOI Advisory Council Opinion AO-11-05
August 5, 2005
Brenda L. Stewart
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 July 25, 2005.
Dear Ms. Stewart:
You have asked whether certain gatherings between members of the Chesterfield School Board and the Chesterfield Board of Supervisors regarding a bond referendum held in November, 2004 were subject to the Virginia Freedom of Information Act (FOIA). You indicate that while this same matter was the subject of a prior advisory opinion from this office,1 certain facts have come to light that were not presented or considered in that prior opinion, and therefore you ask for a new opinion from this office.
In examining any gathering to determine whether it is subject to FOIA, it must be determined whether those gathered form a public body and whether the gathering itself comprises a meeting as those terms are used in FOIA. The definition of public body in § 2.2-3701 includes not only traditional public bodies such as a school board and a board of supervisors, but also 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. The same section defines the term meeting to include 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. Section 2.2-3707 sets forth the various requirements for holding meetings, including that all meetings be open and noticed to the public and that minutes be taken. However, subsection G of § 2.2-3707 excludes from these requirements certain gatherings of two or more members that do not involve the transaction or discussion of public business. Therefore, any time three members of a public body, or a quorum if less than three members, gather to transact or discuss the public business of that body, such a gathering is a meeting subject to FOIA.
As factual background, you indicate that a Liaison Committee was created to facilitate communication between the Board of Supervisors and the School Board regarding financial and policy matters. According to the minutes of the School Board from January 13, 2004, the chair and vice chair of the School Board were appointed to serve as representatives to the Liaison Committee from January through December, 2004. According to the minutes of the Board of Supervisors meeting dated January 14, 2004, two members of the Board of Supervisors, including its vice chair and another member, were appointed to serve on the Liaison Committee.
It appears that during the months of February and March, 2004, two members of the School Board met privately with two members of the Board of Supervisors to discuss a school bond referendum to be held in November, 2004. No notice was given of these private gatherings nor were they open to the public. The School Board members were its chair and vice chair, who together comprised the School Board's designees to the Liaison Committee. One of the Board of Supervisors members to attend these private gatherings was its vice chair, who also was designated to serve on the Liaison Committee; the other Board of Supervisors member who participated in these private gatherings did not serve on the Liaison Committee.
Regarding the Liaison Committee, you did not state how it was created, when it was created, or who created it. It is not clear whether the School Board and the Board of Supervisors each created their own separate Liaison Committee, or whether each Board acted to create a single joint Liaison Committee serving both Boards. In the quoted minutes of the Board of Supervisors, the Liaison Committee is described as the School Board Liaison Committee. The quoted minutes of the School Board simply refer to it as the Liaison Committee. Applying the law to these facts, it is not clear whether the Liaison Committee is in itself one public body, i.e. a joint committee of both the School Board and the Board of Supervisors, or two separate public bodies that meet together for a shared purpose, i.e. the Liaison Committee of the School Board that meets jointly with the School Board Liaison Committee of the Board of Supervisors. The legal analysis of the facts presented differs somewhat depending on the exact status of the Liaison Committee as a single public body serving both Boards or as two distinct public bodies representing each Board separately, as explained below. However, in either event, the Liaison Committees under consideration would be public bodies subject to FOIA. A single joint Liaison Committee would be a committee of both Boards performing delegated functions for and advising both Boards. If each Board has its own Liaison Committee, then each is a committee of its respective Board performing those same functions on behalf of the Board that created it.
First to be considered is if the Liaison Committee is a single public body that is a joint committee created by both the School Board and the Board of Supervisors. If so, then it is a public body comprised of two members of each Board. Three out of the four members of the Liaison Committee were present at the private gatherings, and the subject under discussion was the upcoming bond referendum, which clearly falls under the public business of the Liaison Committee to discuss financial and policy matters. Therefore these private gatherings would have been meetings of the Liaison Committee subject to FOIA, as they involved three or more members of the public body discussing the public business of that body. If this is the case, then these private gatherings should have been open and noticed to the public, and met the other requirements for meetings under FOIA. The responsibility for satisfying these requirements would fall upon the Liaison Committee itself, and thus ultimately be a joint responsibility of both the School Board and the Board of Supervisors.
Alternatively, consider if the Liaison Committee was not a single joint committee of both Boards, but instead each committee was a separate entity, a public body representing its respective Board. In this case, meetings of the two Liaison Committees together would be a joint meeting of separate public bodies, each of which would be responsible for satisfying the notice and other requirements of FOIA. Under the facts as presented regarding the private gatherings, a separate analysis is therefore required for each committee. Both members of the School Board's Liaison Committee attended the private gatherings. Therefore this gathering would meet the definitional requirements of a meeting as a quorum of that committee, and therefore be a meeting of the School Board's Liaison Committee subject to FOIA. However, in regard to the Board of Supervisors, only one member of its School Board Liaison Committee was present at the private gatherings. The other member of the Board of Supervisors who attended the private gatherings was not a member of the School Board Liaison Committee. None of the facts presented indicate that the two Board of Supervisors members together formed a committee or other entity of that Board. Therefore, the private gatherings would not have been a meeting of the Board of Supervisors' School Board Liaison Committee (or other committee of the Board of Supervisors) subject to FOIA. In this scenario, the end result is still that the private gatherings should have been open and noticed to the public, but rather than as meetings of a joint Liaison Committee, they would solely be considered meetings of the School Board's Liaison Committee. In this case, the School Board's Liaison Committee (and ultimately the School Board) would have had sole responsibility for satisfying the meeting requirements of FOIA.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1Freedom of Information Advisory Opinion 12 (2004).
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