FOI Advisory Council Opinion AO-23-03


September 22, 2003

Ms. Betty Ostergren
Mechanicsville, Virginia

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 e-mail of August 20, 2003.

Dear Ms. Ostergren:

You have asked questions concerning a meeting of the Board of Game and Inland Fisheries ("the Board") under the Virginia Freedom of Information Act (FOIA).

You indicate that you requested notice of all meetings of the Board, and that you received the following notice via the U.S. Mail:

Meeting Notice
Board of Game and Inland Fisheries
4016 West Broad Street
Richmond, Virginia
August 20, 2003

Board Chairman Hoffler will meet with the two recently appointed members of the Board for an orientation session. This meeting will not affect the already scheduled August 21, 2003 Board of Game and Inland Fisheries meeting that will be held in Richmond, beginning at 9:00 a.m.

Upon receiving this notice, you indicate that you inquired as to a more specific location of the meeting, such as a room number, as well as the time that the orientation meeting was scheduled on August 20, 2003. You also asked if an agenda was available for either of the meetings, whether agenda materials would be made available for public inspection for the August 20 meeting, and whether public comment would be received at either meeting. You indicate that you were directed to the Commonwealth Calendar, which indicated that the August 20 meeting would convene at 12:00 p.m., but did not receive an answer about whether public comment would be received. You further indicate that you were told that there was no formal agenda for the August 20 meeting, as it was just a new member orientation. You indicate that when you attended the meeting, an agenda was available and that you were provided with a copy. You ask if the notice of the meeting was deficient under FOIA.

Subsection A of § 2.2-3707 of the Code of Virginia requires that [a]ll meetings of public bodies be open, except as provided in § 2.2-3711. Subsection C of § 2.2-3707 requires that [e]very public body shall give notice of the date, time, and location of its meetings and that [n]otices for meetings of state public bodies on which there is at least one member appointed by the Governor shall state whether or not public comment will be received at the meeting and, if so, the approximate point during the meeting when public comment will be received. Subsection E of § 2.2-3707 states that [a]ny person may annually file a written request for notification with a public body. . . [t]he public body receiving such request shall provide notice of all meetings directly to each such person. Finally, while there is no requirement that a public body create an agenda for a meeting, subsection F of § 2.2-3707 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.

As noted above, subsection C of § 2.2-3707 requires that a meeting notice must contain the date, time and location of the meeting. If any of these three elements are lacking from either the notice posted generally or the notice provided directly to individuals who request it, then notice of the meeting would be insufficient. It appears that in this instance, you were provided with the date and location of the August 20 meeting, but not the time. In addition to the requirement to include the date, time, and location on a meeting notice, if the Governor appoints a member of the public body, a sufficient notice must also indicate whether public comment will be received, and at approximately what point during the meeting this will occur.

You also raise a question about the availability of an agenda in the facts you provided. FOIA does not require that an agenda be created for a meeting. Therefore, failure to provide you a copy of the agenda when you requested it is not necessarily a violation of the law if no such record existed at the time of your request. It is possible that an agenda was created after your request, in which case FOIA simply requires that the agenda be available for public inspection at the same time it was made available to the members of the public body. FOIA does not, however, require a public body to honor a standing request for records that do not currently exist, but may be created at some later time.

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

Maria J.K. Everett