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Issue A
The annexation committee wants to meet to discuss the county's annexation policies in general. Is this a public "meeting" under the Act?


Yes. Generally, a meeting is any assembly of three or more members of the public body. However, a meeting can occur with fewer than three members if a quorum of the "body" is present. Here, the "body" is the annexation committee. Even though there would be only two board members present, there would be a quorum of the body.
(Va. Code § 2.1-341.)

Issue B
Because an assembly of the annexation committee would be a meeting, what public notice requirements apply?


Public notice of the date, time and place of all meetings must be posted. (Of course, this would apply to board meetings, as well as committee meetings.) The notice can be in any prominent public location where notices are regularly posted. The notice must be posted at least three working days before the meeting. If a special meeting is called on less than three working days' notice, the public must be given notice at the same time as the members of the body.

The best practice is to post notice of the date and time of all regular meetings of the council, boards, commissions, and committees. An additional posting should be made for special meetings.

Additionally, the Act allows a citizen to file a written request for direct notification of meetings. These requests are valid for one year, and they obligate the body to send the citizen notices of meetings. The Act does not say how the citizen is to be notified, but it does say that the body can use e-mail only if the citizen does not object. Finally, with respect to regular meetings, the board need send only one notice per year. The Act does not require that regularly recurring meetings be noticed separately.
(Va. Code § 2.1-343; 1991 Opinions of the Attorney General 5)


Issue C
When the committee meets, does someone need to take minutes?


In this case, no. Minutes must be taken whenever the governing body meets, but they need not be taken in committee meetings unless a majority of the governing body sits on the committee. In this scenario, only two board members serve on the annexation committee, so there is no requirement that minutes be kept.
(Va. Code § 2.1-343(I))


Issue D
After meeting, the committee forms some recommendations for an annexation policy. It instructs the county administrator to poll the other board members to develop a sense for their opinions. Is this permissible?


Yes. The act expressly allows this type of informal polling.
(Va. Code § 2.1-343.2)

Issue E
One committee member meets with another member of the board to explain the committee's recommendation on annexation. Is this a meeting?


No. This would not be an annexation committee meeting, so the general rule applies. The Act is triggered only if three or more members of the public body meet.
(Va. Code § 2.1-341.)

Issue F
A Town in the county wants to discuss a potential annexation agreement with the County. The annexation committee meets with the Town Council to discuss possible terms of the agreement. Is this a meeting?


No. This is a special rule. Under Va. Code § 15.2-2907, members of one governing body may meet with members of another governing body to negotiate an annexation agreement (or anything else under the jurisdiction of the Commission on Local Government) without triggering the Act at all. This type of meeting would be completely exempt from all of the Act's requirements.

Remember, though, that this exemption is limited to annexation, boundary line adjustments, and the like. The Board could not meet with a Town Council for other reasons without complying with the Act.
(Va. Code, § 15.2-2907.)

Issue A
At a regularly scheduled meeting, a very large crowd attends. The crowd is too large for the meeting room. The Board wants to recess and reconvene in a larger room but is concerned the notices it posted and sent to the press would then be inaccurate. Can the Board move the meeting?


Yes. The Attorney General has ruled that a meeting can be reconvened at a different place and time without further notice under the Act. Bear in mind, however, that other statutes may limit the right to reconvene. For example, § 15.2-2204 requires that new notices be mailed if a zoning hearing is continued.
(1991 Opinions of the Attorney General 5)

Issue B
Several people in attendance at the meeting demand to be heard. They have an attorney who claims that the Freedom of Information Act guarantees their right to speak in a public meeting. Must the Board allow them to speak.


No. With the obvious exception of public hearings, citizens have no right to speak in public meetings. The Act does nothing to change this.

Issue C
One member of the audience attempts to videotape the meeting. Is this permissible?


Yes. The Act specifically authorizes any person to film, photograph, or tape any meeting. However, the public body may adopt rules which assure that the recording does not interfere with the meeting.
(Va. Code § 2.1-343(H).)

Issue D
A supervisor believes that discussion of the matter should take place in closed session. He makes the following motion: I move that we retire to closed session to discuss a personnel matter. Would this type of closed session be permissible here?


No, for two reasons. First, this type of personnel issue must be discussed in open session. Section 2.1-344(A)(1), which authorizes closed sessions for personnel matters, applies only when the discussion concerns specific individuals. Creating a new job classification would not fit this exception to the open-meeting requirements.

Second, the motion quoted here was procedurally defective. A motion for a closed session must
(i) state the subject matter of the meeting,
(ii) state the purpose of the meeting,[1] and
(iii) refer to the specific exemption in the Act which allows the closed session. For example, a proper motion for a closed session to discuss a specific employee might read as follows: I move that we retire to closed session. The subject matter is a specific employee. The purpose is to discuss his performance. The FOI authorization is section 2.1-344(A)(1).


We have attached a script for closed-session motions. This script can be used as a guide for many closed-session issues.
(Va. Code § § 2.1-344, 344.1)

Issue E
Could the board retire into closed session for a legal matter, on the theory that it would ask the county attorney what he thought about the DPU


No. The provision allowing closed sessions for legal matters is limited to the discussion of actual litigation, probable litigation, or other specific legal matters requiring the provision of legal advice. The wisdom of creating a DPU position would be a question of policy, not a question of law.
(Va. Code, § 2.1-344(A)(7).)

Issue A
Is the New York Times eligible for the benefits provided by the Act?


Yes. The County must provide records to any citizen of the Commonwealth, any newspaper or magazine with a circulation in Virginia, or any radio or television station broadcasting into the Commonwealth.
(Va. Code, § 2.1-342(A).)

Issue B
Does it matter that the Times request was verbal?


No. The Act does not require FOI requests to be in writing or specifically refer to the Act.
(1990 Op. Atty. Gen. Va. 9)

Issue C
When must the County respond to the Timesrequest?


The Act requires the County to make one of four responses within five working days:

1. That the records will be provided. Note that the Act does not require that they actually be provided within the five day period. This response can even be verbal.
2. That the records will be withheld because
(i) their release would violate the law or
(ii) their release is not required under the Act. This type of response does need to be in writing, and it must describe the withheld records and explain why they are exempt.
3. That some of the records will be provided, and some will be withheld. This type of response must be in writing and make the same disclosures as when all the records will be withheld.
4. That it is not practically possible to determine whether the records are available within the five day period. If it made this response, the County would have another seven working days to respond.
(Virginia Code, § 2.1-342(B).)
Issue D
The records requested by the Times have been scanned and converted to electronic form. Do any special rules apply?


Not really. Just as it would have to provide access to paper records at a reasonable cost, it must do so for electronic records.
(Virginia Code, § 2.1-342(G).)

Issue E
The records requested by the Times are quite voluminous. How can the County recoup its costs in searching and copying?

The Act specifically provides that the public body can charge its actual cost incurred in searching and supplying the records. This would include its actual cost of labor and duplication.

If the County determines that the cost is likely to exceed $200, it may require the Times to deposit the estimated cost. The time spent waiting for the Times to make the deposit doesn't count toward the County's deadlines.
(Virginia Code, § 2.1-342(F).)

Issue F
Suppose the Times had requested a list of all applications for rezoning from R-1 to B-1. The County could certainly compile such a list, but it does not keep one on file. What are its duties?

The Act provides that a public body has no duty to create a record which doesn't already exist. Therefore, the County's response could well be that no such documents exist. Of course, there is no reason that County could not compile the list if it so chose.

One caveat: If the records are stored in an electronic database which can provide for different types of output reports, the public body must configure the database to produce the requested report again, charging its reasonable expenses.
(Virginia Code, § 2.1-342(D) & (G).)

Issue G
Suppose the Times had asked the County to send it copies of all future rezoning applications. Would the County have to comply?

No. The Act only applies to records in existence as of the date of the request.
(1991 Op. Va. Atty. Gen. 7)

Issue A
Can one Board member telephone another member to lobby for the creation of the position?


Of course. Unless the two members formed a quorum of a committee with jurisdiction over the question, there is no meeting.
(Va. Code § 2.1-341.)

Issue B
The two members conversing want to add a third supervisor to their call. Would this be permitted under the Act?

No. With the addition of the third supervisor, the conversation becomes a meeting. The Act prohibits local governments from meeting electronically.
(Va. Code § 2.1-343.1.)

Issue C
Could three or more board members exchange email on the DPU proposal or exchange ideas in an electronic chat room?

A member can contact other board members using email, just as he could send a letter to them. It would be perfectly proper for all of the members to exchange their views on the DPU by email. Certainly, however, it would be possible to go too far with email (or any written correspondence). Supervisors must refrain from holding a de facto meeting through written communication. They could not, for example, decide who would make the motion to hire the DPU. (Indeed they would not be allowed to decide anything.)

Discussion of the public business in an electronic chat room would probably not be permissible. While email is equated with written communication, chat room conversations as their name implies are closer to verbal communications. Because such chat rooms allow real-time interaction on a sentence-by-sentence basis, we believe that a court would hold chat-room discussions to be electronic meetings, prohibited by the Act.
(1999 Va. AG LEXIS 1)

Issue D
Several members find themselves at a social function. Other guests there want to discuss the DPU topic. Can the members engage in the discussion?

Probably, but be careful here. The act contains an exemption for social functions if (i) the purpose of the function is not for the discussion of public business and (ii) the members attendance was not prearranged for the purpose of discussing public business. In this case, the gathering was purely social and nothing was pre-arranged, so there was no meeting. Nevertheless, a wise Supervisor might do more listening than talking in this situation.
(Va. Code § 2.1-343(G))

Issue E
A citizens group wants to discuss the DPU issue in a public forum. It has invited all of the Supervisors to attend. Can they?

Yes. The same exemption that applies to social events applies here as well. So long as the purpose of the event is to inform the electorate, rather than conduct business or deliberations, the Act allows the Supervisors to attend.
(Va. Code, § 2.1-343(G))

Issue A
In the closed session, the Board asks a real estate appraiser to provide a briefing. Is this permissible?

Yes. The county can invite anyone whom it thinks will assist them in their discussion.
(Va. Code, § 2.1-344.1(F).)

Issue B
Can the Board decide on a bidding strategy in the closed session?

The standard answer to this type of question is that no action can be taken in closed sessions, but the Act is not quite that restrictive. The Act anticipates that some voting might be done in a closed session. It provides that


[n]o resolution, ordinance or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body following the meeting, reconvenes in open session and takes a vote of the membership on such resolution, ordinance or motion which shall have its substance reasonably identified in the open meeting.

Under this provision, the Board could vote to authorize bidding in closed session. However, it must confirm that vote when it reconvenes into open session. The confirming vote must reasonably identify the closed session discussion, but it need not specify every single factor. Here, the confirming vote might specifically mention the bidding authority, but omit the county's maximum bid.
(Va. Code, § 2.1-344 (B).)

Issue C
One board member, opposed to buying the property, leaks the contents of the closed session discussion, including the county's maximum purchase price. Can he be sanctioned?

Probably not. The Act does not require that closed session discussions remain confidential.

Similarly, the Act doesn't prohibit open-session discussions of matters, just because they can be discussed in closed session. Nor does it prohibit the county from releasing documents which are exempted from the Act's disclosure equirements. (There may be other statutes which prohibit the dissemination of information in some situations. For example, under Va. Code § 31.1-127.1:03, the county could not release medical information pertaining to its employees.)

[1] If the meeting agenda is sufficiently detailed, this requirement is satisfied just by referring to the appropriate agenda item. Marsh v. Richmond Newspapers,223 Va. 245 (1982).