FOI Advisory Council Opinion AO-13-03

May 30, 2003

Mr. Bryan R. Phillips, Esq.
Arlington, Virginia

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 e-mail of April 2, 2003.

Dear Mr. Phillips:

You have asked a series of questions relating to the application of the Virginia Freedom of Information Act (FOIA) to the Virginia Baseball Stadium Authority ("the Authority").

By way of background, § 15.2-5801 of the Code of Virginia establishes the Authority as a political subdivision of the Commonwealth. The governing body of the Authority consists of nine members, all appointed by the Governor. Among other things, the Authority is charged with selecting a site for and constructing a facility for a major league baseball franchise. Section 15.2-5819 states that the acquisition of a major league baseball franchise and a major league baseball stadium will result in substantial economic development in the Commonwealth and is in all respects for the benefit of the people of the Commonwealth and is a public purpose and that the Authority will be performing an essential government function in the exercise of the powers and duties conferred by this chapter.

First, you ask whether the Authority is subject to FOIA. Specifically, you ask if the Authority may meet to discuss financing options and to select potential stadium sites without providing notice of such meetings, allowing public attendance, or providing minutes. Section 2.2-3701 defines a public body to include any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth. (Emphasis added.) Pursuant § 15.2-5801, the Authority is a political subdivision of the Commonwealth and is thus subject to the requirements of FOIA.

Section 2.2-3707 requires that all meetings of a public body be properly noticed and open to the public, and that minutes be recorded. Subsection C of § 2.2-3707 requires that notice of the time, date, and location of all meetings be posted in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or the office of the chief administrator if there is no clerk. Subsection E of § 2.2-3707 also requires a public body to provide notice to any individual that annually files a written request for notification. Subsection I of § 2.2-3707 requires a public body to record minutes at open meetings. All minutes, including draft minutes and audio or audio/visual recordings, are public records subject to inspection and copying pursuant to FOIA. Minutes are not required to be taken at closed meetings. All of these requirements would be applicable to the meetings of the governing body of the Authority.

It is important to note that some discussions of the governing body of the Authority may be the proper topic for a closed meeting. However, closed meetings may only be held if properly subject to an exemption set forth in § 2.2-3711. For example, subdivision A 3 of § 2.2-3711 would allow a public body to convene in closed session for the discussion or consideration of the acquisition of real property for a public purpose. In order to hold a closed meeting, a public body must first convene in an open meeting, and pursuant to subsection A of § 2.2-3712, make a motion to go into a closed meeting stating the purpose of the meeting, identifying the subject matter, and making specific reference to the applicable exemption from the open meeting requirements. At the conclusion of the closed meeting, the public body must reconvene in open session and take a recorded vote certifying that to the best of each member's knowledge only matters identified in the motion to go into closed session were discussed.

Your second question involves the application of FOIA to a press conference held by the Authority on March 29, 2003. You indicate that the Authority announced five potential sites for stadium construction along with certain financing schemes at the press conference. To your knowledge, at least three members of the governing body of the Authority were present, and only the media and "invited guests" were allowed to attend. Your further indicate that it is your understanding that when some citizens attempting to attend the press conference requested media kits distributed to the media and invited guests, the Authority declined to provide the kits. You ask if FOIA allows the Authority to hold a private press conference, barring the attendance of some citizens.

Subsection A of § 2.2-3707 requires that all meetings of a public body shall be open, unless subject to a statutory exemption found at § 2.2-3711. Section 2.2-3701 defines a meeting as all meetings including work sessions of 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. Therefore, if three or more members of the governing body of the Authority were present at the press conference, it would be a meeting for purposes of FOIA and the requirements for an open meeting must be followed. Clearly the press conference related to the public business of the Authority, because it was the forum for announcing potential stadium sites and financing schemes -- the statutorily stated purpose for the Authority's creation. Even if less than three members were present at the press conference, it may still constitute a meeting under FOIA for the following reasons. The definition of a public body at § 2.2-3701 specifically includes any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body. If the governing body of the Authority designated one or two members to attend the press conference on behalf of the entire membership of the governing body, those few members would essentially be acting as a committee representing the whole. A meeting of a quorum of any committee comprised of less than three members also falls under the definition of a meeting. In either case, the Authority does not have the discretion to allow only the media and invited guests to attend and deny access to other citizens who wished to attend.

If, however, the only people from the Authority present at the press conference were employees of the Authority, such as the executive director or other staff, it would not constitute a meeting under FOIA and would not be required to be open to the public. The definition of a meeting specifically excludes a gathering of employees of a public body. Clearly, however, pursuant to the policy set forth creating the Authority at § 15.2-5819, the announcement of a potential site for a baseball stadium is one of the primary public purposes for which the Authority was created. The purpose of the press conference was to make public the details of the Authority's public business. The construction of a stadium involves the expenditure of public funds -- it is an issue relevant to all citizens of the Commonwealth and not just select members of the media or invitees. Denying access to the gathering under such circumstances appears to violate the spirit of openness of FOIA, even if it may not violate the letter of the law. FOIA's policy of allowing citizens to witness the operations of government is not well served if the public is prohibited from hearing first hand announcements of economic development decisions being made to benefit the Commonwealth as a whole.

Even if it could be argued that the press conference was not a meeting required to be open under FOIA, subsection A of § 2.2-3710 states that no vote of any kind of the membership of a public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of [FOIA]. Subsection B of § 2.2-3711 further clarifies this section, and states that [n]o resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership. The Authority must select the potential sites in a vote at a meeting open to the public. An announcement by staff or members of the Authority at a press conference or a vote at a meeting not properly noticed and open to the public does not satisfy the requirements of FOIA. If such a vote was not taken at an open meeting prior to the press conference, the announced sites were not official selections of the Authority, and the mere announcement of the sites did not make them official.

The facts that you present also indicates that some citizens were not given access to the media kits provided to the invitees of the press conference. Section 2.2-3701 defines a public record as all writing and recordings regardless of physical form or characteristics, prepared or owned by, or in the possession of a pubic body or its officers, employees or agents in the transaction of public business. Pursuant to this definition, any media kits or other materials held by the Authority are public records. Subsection A of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. Even if it could be argued that this press conference was not a meeting, FOIA would still require that the media kits be made available to the public upon request, unless a specific statutory exemption allowed those records to be withheld.

Your final question asks if a citizen may request minutes of past meetings of the Authority. You specifically ask about subdivision B 2 of § 15.2-5804, which requires the executive director of the Authority to attend all meetings and keep minutes of all proceedings. As noted in response to your first question, public bodies must keep minutes of all open meetings, and these minutes are available for public inspection and copying under FOIA just like other public records. To the extent that the executive director also took minutes of portions of meetings lawfully closed pursuant to an exemption at § 2.2-3711, these portions of the records could be withheld pursuant to subdivision A 14 of § 2.2-3705, which allows a public body to withhold [r]ecords recorded in closed meetings held pursuant to § 2.2-3711.

In summary, the Authority is clearly a public body for purposes of FOIA and subject to its records and meetings requirements. The Authority must give proper notice of its meetings, open them to the public, and record minutes. The Authority may not withhold any record or close any meeting unless specifically exempted by statute. Because of its status as a public body, the Authority does not have the discretion to choose whom it will allow to attend its meetings, or to which citizen it will provide its records.

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

Sincerely,

Maria J.K. Everett
Executive Director