Meeting meeting myths head-on

A slightly edited version of this column originally ran in The Roanoke Times, Sunday, March 13, n2016

By Megan Rhyne

Rhyne is executive director of the Virginia Coalition for Open Government.

When we talk about the Freeom of Information Act, the tendency is to focus on the part of Virginia law that governs access to public records.

The records portion of the act takes up two-thirds of the act. The federal FOIA covers records only. And of the 200 or so questions and inquiries I’ve fielded in just the past four months, issues regarding records are more than twice as likely as any other topic.

This emphasis on records, then, often obscures the fact that Virginia’s FOIA contains provisions governing the public’s right to attend the meetings of state and local public bodies. The meetings provisions are so often overlooked that I once had a legislator tell me that his bill to amend a section of the meetings provisions didn’t have anything to do with FOIA at all.

So it makes some sense that exactly what FOIA does and doesn’t say about meetings isn’t as clear to either the public or public officials. I receive many calls from citizens who are sure that a public body messed up somewhere along the line in calling for, conducting and concluding a public meeting, but then the law says they didn’t. And public officials often assert that the law prohibits something that it actually doesn’t.

So here are my top three myths about public meetings and Virginia’s FOIA.

Citizens do not have a right to comment at a public meeting

Most public meetings will include a public comment period, which leads many in the public to assume that such a period is sacrosanct. It’s not.

There are some government decisions that require a “public hearing” prior to their adoption: things like adopting a new ordinance, changes to the zoning law, or school redistricting. These hearings have a limited, specific purpose and public comment at these hearings is required and mandated by different sections of the Virginia Code.

All other meetings, though, are governed by FOIA and FOIA does not mention, much less require, a public comment period.

Two bills introduced this year would have required some sort of public comment. The bills will be studied by the FOIA Council in the coming months. It’s an issue ripe for discussion, as public bodies across the state struggle with the rules they will adopt. It’s near universal that a time limit will be placed on individuals or the comment period as a whole, and a public body chair retains authority to keep a meeting from spiraling out of control. Yet some public bodies have (or tried) adopted much wider ranging rules, like allowing the chair to pick and choose topics and speakers or barring some speakers from attending future meetings. One city ended up in court because it wouldn’t let a man with an outstanding debt on his unsuccessful school board campaign speak at a meeting until he’d paid up.

FOIA doesn’t cover the specifics of meeting agendas

When it comes to a meeting agenda, FOIA says only that if an agenda is provided, it must be provided to the public at the same time it’s given to the public body members. FOIA does not say what must be on an agenda, or whether the agenda can be added to or subtracted from, or what form notice of a closed meeting must take.

I’ve seen this particular issue cause a lot of hard feelings. I remember a reporter who called in distress because a vote to give the public body’s attorney a raise — a raise the body previously indicated it would not give — had been taken after they body came out of closed session very late at night when everyone, including the reporter, had gone home. The vote wasn’t on the agenda, so the reporter thought it was safe to leave.

The public got burned by a city that did not include on its agenda that it would vote on spending a couple of hundred thousand dollars to purchase a piece of property it previously said it would not buy. The public and a fellow public servant got burned when a city suddenly voted on a motion to close the city’s jail. A parent was recently left reeling when he assumed there would not be a vote to fill a vacant school board seat when the meeting agenda listed only a closed session for interviews.

FOIA doesn’t require a closed session for anything

This myth has a corollary, which is, FOIA doesn’t prohibit the public disclosure of matters discussed during a closed meeting.

FOIA’s basic premise is that all records and meetings are open. FOIA contains over 170 exemptions to this requirement (47 of which are for meetings), but these exemptions are discretionary. There may be other statutes that prohibit the release of records, but FOIA itself doesn’t prohibit anything related to meetings. A topic that may be discussed in closed session may also be discussed in open session. There are good reasons for closing a meeting under an exemption, and there are times when public discussion on a topic that could be exempt would benefit the public body and the public.

When a public official says he or she can’t talk about a matter that was discussed in closed session, though, that official is making a choice not to talk. It can be a well-principled choice based on the content of the meeting or one based on maintaining the trust of one’s fellow board members, but it is still a choice. FOIA does not prohibit it.

Myths are perpetuated when facts are scarce. Public officials are required to familiarize themselves with FOIA’s terms, and the public can take advantage of websites and free resources to get answers to their questions. When the ground rules are clear, a real dialog about issues can take place.