FOI Advisory Council Opinion AO-01-01

January 3, 2001

Ms. Bridgette Blair
The Winchester Star
Winchester, VA

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 telephone conversation of December 4, 2000.

Dear Ms. Blair:

You have asked whether the use of a proposed e-mail network, consisting of the members of city council, the city manager, and the city attorney, among others, would constitute a meeting under the Virginia Freedom of Information Act (FOIA) and should be prohibited unless open to the public. The public body refused your request to be included in the network, and told you that public access was limited to requests for specific e-mails.

You indicate that this network would be similar to a "mailing list server" or "discussion group" ("server"). On such an electronic communications system, each message posted on the server would be addressed to a server address, instead of individual user's addresses. The message is then automatically broadcast to everyone on the server's list as an e-mail message. In order to see any of the messages posted, one must be on the server list.1 Responses to previously sent messages are sent out the same way, so that all server participants automatically see them. Thus, every participant would see and be able to participate in electronic discussions taking place via e-mail. This differs from ordinary use of e-mail, where the sender must decide specifically to whom to send the message, and recipients decide to whom to respond -- to the initiator of the message only, or to all or some of the other recipients of the message.

FOIA defines a meeting at § 2.1-341 of the Code of Virginia. It reads:

"Meeting" or "meetings" means the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.1-343.1, 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.

Section 2.1-343.[fn1] sets forth procedural requirements that would allow a state body to meet electronically, but the same section prohibits local bodies, such as the city council, from meeting by electronic means.

In light of today's technological advances, the discrepancies between a face-to-face simultaneous discussion and an electronic exchange are fast diminishing, making it difficult to draw the line between what type of electronic exchange constitutes correspondence, and what constitutes an electronic discussion. A recent opinion of the Attorney General found that transmissions through an e-mail system from one member of a public body to three or more members of the same body was a form of written communication, and thus did not constitute a meeting.[fn2] This opinion focused on the traditional use of e-mail -- when a sender chooses the particular recipients of a message. In such a situation, e-mail is equated with sending a paper memo or letter to multiple recipients. The situation involving the use of an e-mail server presents additional issues and concerns, and leads one to come to a different conclusion as to the nature of the communication.

As noted above, if a user chooses to send a message via the server, every participant would automatically see the message. Likewise, each participant would have the opportunity to respond and would see all of the other responses to the original message. Any participant could then respond to a response, and in essence, a discussion results. In this light, this use of electronic communications in a server environment appears to be more akin to a meeting than to mere correspondence. The network would allow an electronic conversation to ensue, in which ideas concerning public business could readily be exchanged among all members of a public body. Members would utilize the system with the intent of broadcasting a message and receiving all subsequent responses and discussion of the original message. While this conversation might not ensue as instantaneously as a face-to-face conversation, the end result would be the same exchange and discussion of ideas outside of the public's view.

FOIA dictates that its provisions be construed liberally to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.[fn3] Subsection B of § 2.1-343 prohibits any meetings through telephonic, video or electronic means where the members are not physically assembled. In light of FOIA's policy of openness, the server seems more like an electronic meeting prohibited by § 2.1-343 than traditional correspondence. A message broadcast on the server could easily spark a discussion among the members of the public body, via e-mail, concerning a matter of public business. Conducting business on the server would not give citizens the opportunity to witness the operation of government. Furthermore, only allowing citizens to request copies of particular e-mails from the server after the fact removes the citizen from witnessing first-hand the conduct of government as would take place at a physically-assembled meeting. As such, FOIA prohibits public bodies from utilizing such electronic means of communication among the various members of the body. Allowing citizens to join the server list so that they might also receive all posted e-mails would not remedy the situation, since FOIA prohibits any electronic meeting of a local public body, regardless of whether the public is allowed to participate.

Individual members of a public body could still utilize traditional e-mail to send correspondence to one or several members of a public body. When such e-mail and all subsequent responses are automatically viewed by all members of the public body, however, the nature of the electronic transmissions crosses the line between correspondence and discussion. Once a discussion ensues, it is governed by the meeting provisions of FOIA, which plainly prohibit any meetings where the members of a local public body are not physically assembled.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. PC Webopedia Definition and Links (last modified March 6, 1997) (http://www.webopedia.internet.com/TERM/L/Listserv.html).

2. 1999 Op. Atty. Gen. Va. 12.

3. Va. Code Ann. § 2.1-340.1 (Michie 2000).