FOI Advisory Council opinions

by Elizabeth Beck, VCOG 2006
Richardson Legal Fellow

Since December 2005, the FOI Advisory Council issued six opinions.

In February, AO-01-06, the Council weighed in on whether the Vienna Town Council violated the Freedom of Information Act by not including in its meeting minutes three matters discussed in open session and reported on by the local newspaper. Section 2.2-3707 requires that meeting minutes contain a summary of the discussion on “matters proposed, deliberated or decided, and a record of any votes taken.” The Council noted that some things that come up in discussion are mere side matters that do not have to be included in the meeting minutes, while matters that are substantially discussed and debated are matters that have been “deliberated” and should be in the minutes. A public body has discretion in determining whether a matter was a side matter or a deliberated matter, however, so long as it does not seek to hide official matters. The Council advised that when in doubt, it is better to include more in the minutes rather than less. The Council declined to say whether Vienna had violated FOIA in this case, though, saying it was a fact-intensive question better determined by a court.

In AO-02-06, the Council examined the meaning of “joint meeting,” opining that a meeting called by a town planning commission and attended by more than three members of the town council was actually a joint meeting of the two bodies. In their role as town council representatives, council members participated in the discussion of business that was both before the planning commission and the town council. In the same opinion, the Council decided that a meeting called a subcommittee meeting was actually a joint meeting of the planning commission and town council since three or more members of each entity attended and they discussed public business of concern to both public bodies. The Council said it could not comment on whether the meeting could also have been a subcommittee meeting without more information about the subcommittee’s makeup.

In AO-03-06 and AO-04-06, the Council addressed two questions from Council chair Senator Edd Houck (D-Spotsylvania) as the General Assembly’s budget conferees prepared to meet. The first question asked what constitutes a meeting of conference committees. The Council stated that it was outside the realm of FOIA to define what a quorum of the joint conference was, but the Council also stated that there would be a meeting of the joint committee under FOIA any time a quorum met or any time the joint committee met specifically to discuss the bill for which it had been appointed.

In the second opinion, the Council considered whether a joint committee could hold a closed meeting to discuss portions of budget bills. The council opined that a joint committee could not hold a closed meeting unless those portions fell under an exemption in §2.2-3711.

In AO-05-06 the Council opined that FOIA did not govern access to public laws. Although a public body may choose to provide copies of laws, they are not required to do so. The Council also said, in another portion of the same opinion, that a request for records is a request for material under FOIA, and a public body must respond to the request in a timely manner using one of four permitted responses found in §2.2-3704.

In response to a man who was confined to a state mental health facility because he had been found not-guilty of a crime due to mental incapacity, the Council in AO-06-06 looked at how far FOIA goes in granting rights to incarcerated persons. The Council pointed to the letter of §2.2-3703, which specifically excludes incarcerated persons from using FOIA except to access their own case files. The Council said it was beyond its authority to decide whether or not the restriction raises constitutional implications in the man’s case.