If two members of a three-member Virginia electoral board talk on the phone about scheduling, agenda items, or draft minutes, is that a 'meeting' under FOIA? What about email?

Plain-English summary

The Secretary of Goochland County's three-member Electoral Board asked whether he could have a telephone conversation with another member about public business (rescheduling meetings, submitting agenda items, commenting on unapproved draft minutes, similar matters) without triggering the Virginia Freedom of Information Act's open-meeting requirements. The practical concern was that getting all three members physically together for trivial scheduling matters is burdensome.

Cuccinelli concluded that the phone conversation is a meeting under VFOIA. Section 2.2-3701 defines "meeting" to include sessions of "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 Goochland board has three members, so a phone conversation between two of them about board business is an "informal assemblage" that qualifies as a meeting. The Act separately prohibits boards of local government from conducting 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."

The AG also rejected the "no meeting" exception under § 2.2-3710(B) (which allows separately contacting members "for the purpose of ascertaining a member's position with respect to the transaction of public business"). That exception applies only when "the contact is done on a basis that does not constitute a meeting as defined in this chapter." A two-member phone call between members of a three-member board is by definition a meeting, so the exception does not save it.

But email between board members is different. The AG noted that under the Virginia Supreme Court's jurisprudence, email lacks the "quality of simultaneity" required to constitute an "assemblage." It is more like a traditional letter sent by mail or fax. So two members may exchange emails about scheduling, draft minutes, and agenda items without triggering VFOIA's meeting requirements.

The AG noted the hardship the Act imposes on electoral boards but explained that exceptions are for the General Assembly to enact.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does a two-member conversation count?
The board has three members, and the FOIA definition of "meeting" captures an informal assemblage of "as many as three members or (ii) a quorum, if less than three." A two-person conversation by a three-person board therefore qualifies as a meeting.

Does it matter whether public business is the actual topic?
Yes. Section 2.2-3707(G) exempts gatherings where no part of the purpose is the discussion or transaction of public business. But scheduling, draft minutes, and agenda items are "public business" under the AG's reading and a prior opinion of this office. The Roanoke Circuit Court confirmed a broad view of "officially transacting public business," covering the peripheral discussions around a vote.

How can a two-person board ever talk without violating FOIA?
Through email. The AG explained that ordinary asynchronous email is not an "assemblage" because it lacks the quality of simultaneity. Members may use email to handle scheduling, draft-minute comments, and agenda submissions.

Background and statutory framework

VFOIA requires that "every meeting shall be open to the public" with limited exceptions. The Act makes all public-body meetings open and bans meetings via telephonic, video, or electronic means where members are not physically assembled. It separately forbids boards of local government from conducting such remote meetings, and requires advance notice of the date, time, and location of meetings.

The definition of "meeting" in § 2.2-3701 captures sessions "including work sessions, when sitting physically, or through telephonic or video equipment ... 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."

Section 2.2-3710(B) creates a "no meeting" exception for separately contacting members to ascertain their positions, but only when the contact does not itself constitute a meeting.

The AG relied on Virginia Supreme Court jurisprudence drawing a simultaneity line: email is asynchronous, more like a letter, and not an "assemblage."

A Roanoke Circuit Court decision gave a broad reading of "transacting public business" that extended beyond formal votes to peripheral discussions.

Citations

• Va. Code § 2.2-505 (authority for the opinion request)
• Va. Code § 2.2-3701 (definition of "meeting")
• Va. Code § 2.2-3707 (open meetings; § 2.2-3707(G) gathering exception)
• Va. Code § 2.2-3710 (ascertaining member positions exception, § 2.2-3710(B))

The opinion also relies on Virginia Supreme Court jurisprudence (quoted but not named in the reproduced text) for the rule that email lacks the simultaneity of an "assemblage," and on a Roanoke Circuit Court decision (likewise unnamed in the text) for a broad reading of "transacting public business."

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/11-096-Lind.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

August 5, 2011

Mr. Robin R. Lind
Secretary, Goochland County Electoral Board
Post Office Box 1013
Goochland, Virginia 23063

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Dear Mr. Lind:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire whether under the open meeting provisions of the Freedom of Information Act ("the Act") you may conduct a telephone conversation with another member of the Goochland County Board of Elections "for the purpose of ascertaining a member's position with respect to the transaction of public business," which would include "rescheduling board meetings, submitting agenda items, commenting on the unapproved draft minutes of prior meetings, and other items to be considered in forthcoming open public meetings."

Response
It is my opinion that the discussion of the business of the electoral board by two members of the Board constitutes a meeting of the Board under the Act that must be conducted in public and properly noticed as required by the Act. It is further my opinion that the transaction of public business includes conversations over the telephone involving "rescheduling board meetings, submitting agenda items, commenting on unapproved draft minutes of prior meetings" and other similar matters. Such matters, however, may be discussed via electronic mail. Electronic mail lacks the simultaneous feature of telephone meetings and, therefore, does not constitute a "meeting" under the Act.

Applicable Law and Discussion
The General Assembly enacted the Virginia Freedom of Information Act to

[e]nsure[] the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

In addition, the "provisions of this chapter shall 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."

The Act mandates that "[a]ll meetings of public bodies shall be open," with limited exceptions. Furthermore, subject to limited exceptions, "[n]o meeting shall be conducted through telephonic, video, electronic or other means where the members [of the public body] are not physically assembled to discuss or transact public business." Boards of local government are forbidden from "conduct[ing] 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." In addition, before a meeting, a public body must "give notice of the date, time, and location of its meetings" in the manner specified by the statute.

"Meeting" or "meetings" is defined in § 2.2-3701 as

the meetings including work sessions, when sitting physically, or through telephonic or video equipment ... 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 Goochland County Board of Elections is composed of three individuals. A quorum is therefore present when one member of the Board telephones another member to discuss the business of the electoral board. Consequently, under the Act, the discussion of the affairs of the Board between two members over the telephone constitutes a meeting. It would constitute an "informal assemblage" of the members of the Board.

The statute excludes certain assemblages among board members from the requirements of the Act. Section 2.2-3707(G) provides that

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 ....

In addition, § 2.2-3710(B) provides that

nothing contained herein shall be construed to prohibit ... 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[.]

You ask whether these provisions would permit the communication over the telephone of certain matters concerning the Board. While the determination of whether any particular conduct would violate the Act must be made on a case-by-case basis, I can offer the following guidelines. Under the Act, exemptions from public access to meetings must be narrowly construed so that no meeting is closed "unless specifically made exempt pursuant to this chapter of other specific provision of law."

Although the Code does not define the term "public business," no distinction can be found between procedural and substantive business affairs. This office previously has concluded that meeting "for the purpose of deliberating policy or preparing to take action" constitutes public business. Further, the Roanoke Circuit Court concluded that "'officially transacting public business' ... contemplates a broad view extended not only to the taking of an official vote but also to the peripheral discussions surrounding the vote." Under the plain language of the statute, a telephone conversation about scheduling, draft minutes, or items to place or remove from the agenda would constitute a "discussion ... of ... public business."

Finding no applicable exception, I conclude that the discussion of the affairs of the Board, including rescheduling board meetings, submitting agenda items, and commenting on the draft minutes of prior meetings all constitute a part of the "public business" of the Board. By its plain terms, § 2.2-3710(B) offers no relief, because it applies only when no "meeting" is taking place. As noted above, when two or more members of the electoral board transact or discuss public business over the telephone, that constitutes a meeting of an electoral board.

You relate that it would impose a substantial hardship if telephone calls between two members of the Board were deemed to be a meeting under the Act. That may well be the case. No matter how impractical the requirements of the Act might be, however, where the Act applies, it must be followed. Exceptions to the Act must be enacted into law by the General Assembly.

I further note, however, that under the jurisprudence of the Supreme Court of Virginia, interaction from one board member to another via electronic mail does not offend the Act. In contrast to telephonic interaction, which is simultaneous, electronic mail is "more like traditional letters sent by ordinary mail, courier, or facsimile." Such interaction is not an "assemblage" under the Act because it lacks the "quality of simultaneity." Therefore, two members of the Board may exchange emails about rescheduling board meetings, submitting agenda items, and commenting on draft minutes of prior meetings without triggering the provisions of the Act.

Conclusion

Accordingly, it is my opinion that the discussion of the business of the electoral board by two members of the Board constitutes a meeting of the Board under the Act. It is further my opinion that the transaction of public business includes conversations over the telephone involving "rescheduling board meetings, submitting agenda items, commenting on unapproved draft minutes of prior meetings" and other similar matters. Such matters, however, may be discussed via electronic mail, which lacks the simultaneous feature of telephone meetings. Electronic mail, therefore, does not constitute a "meeting" under the Act.

With kindest regards, I am
Very Truly Yours,

Kenneth T. Cuccinelli, II
Attorney General