FOI Advisory Council Opinion AO-16-02

November 12, 2002

Ms. Vonna L. Privett
Manassas Park, 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 October 3, 2002.

Dear Ms. Privett:

You have asked whether a local government may conduct telecommunication meetings under the Virginia Freedom of Information Act (FOIA).

FOIA defines a meeting at § 2.2-3701 of the Code of Virginia as meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to 2.2-3708, 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. Subsection B of § 2.2-3707 states that except as provided in § 2.2-3708, [n]o meeting shall be conducted through telephonic, video, electronic or other communication means where the members are not physically assembled to discuss or transact public business. As referenced in both of these provisions, § 2.2-3708 governs telephonic and video meetings under FOIA and sets out special notice and procedures for electronic meetings. However, subsection A of § 2.2-3708 states that [I]t shall be a violation of this chapter for any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government or any committee thereof to conduct 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. (Emphasis added.) For the purposes of this section, a public body is defined to include only state public bodies, and not local governing bodies.

Therefore, FOIA prohibits any local public body from conducting a meeting via teleconference, audio-visual conference, or other kind of electronic connection. Any meeting of a local public body must be held where all of the participating members are assembled in one physical location. No member of a local public body may participate in a meeting of that public body unless that member is physically present at the meeting. Please note, however, that these limitations do not prevent members of the public from participating in a meeting electronically. Subsection A of § 2.2-3708 states that [n]othing in this section shall be construed to prohibit the use of interactive audio or video means to expand public participation.

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

Sincerely,

Maria J.K. Everett
Executive Director