FOI Advisory Council Opinion AO-20-04

August 31 , 2004

Mr. David S. Dawson
Abingdon, 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 correspondence of July 30, 2004.

Dear Mr. Dawson:

You have asked a question concerning the application of the Virginia Freedom of Information Act (FOIA) to the Washington County Service Authority's ("the Authority") customer dispute process.

You indicate that the Authority is a public water and wastewater facility, chartered under the Virginia Water and Wastes Authority Act. The Authority has established rules for customer disputes, under which a customer may file a dispute or request that the Authority prepare a dispute form. The dispute is then reviewed in light of the Authority's rules and policies, and an informal conference is held between the manager's designee and the customer. If the customer is unsatisfied with the results of the conference, he may appeal his dispute to a formal dispute committee comprised of two Authority Board of Commissioners. This committee disposes of the matter in the context of the Authority rules. If the committee determines that an existing policy is inappropriate or inadequate, the committee may make an interim adjustment and refer the policy matter to the full Board of Commissioners for its consideration. You indicate that the dispute committee has the authority to resolve the dispute before them on behalf of the full Board of Commissioners, and that the dispute committee is not bound by previous rulings.

At issue is whether the meetings of the dispute resolution committee are meetings under FOIA that must be noticed and open to the public. You indicate that currently, the meetings of the dispute resolution committee are not advertised. You ask whether the practice of the dispute resolution committee complies with the provisions of FOIA.

FOIA sets forth the definition of a public body at § 2.2-3701 of the Code of Virginia as any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions...it shall include...any committee, subcommittee, or other entity however designated, or the public body created to perform delegated functions of the public body or to advise the public body. The same section defines a meeting as work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708, as a body or an 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.

As can be seen from these definitions, a committee or subcommittee that performs delegated functions or advises the full public body is also considered a public body for purposes of FOIA. This means that when three or more, or a quorum if less than three, of the members of the committee gather to discuss the public business assigned or designated to the committee, it is a meeting under FOIA that must be noticed and open to the public. In the facts you present, the dispute resolution committee is composed of two members of the seven-member Authority board. The committee appears to be both performing delegated functions of the full board by having full authority to resolve customer complaints, as well as advising the public body when it determines that an existing rule is inappropriate or inadequate. Therefore, when the two members of the committee meet to discuss customer complaints, it is a meeting under FOIA. Subsection A of § 2.2-3707 requires that such meetings be open to the public, and subsection C of § 2.2-3707 requires that notice be given of the date, time, and location of the meetings.

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

Sincerely,

Maria J.K. Everett
Executive Director