Fredericksburg FOI Case

The Virginia Supreme Court ruled that an exchange of e-mails that took place over two days among members of the Fredericksburg City Council did not constitute a meeting subject to the state’s Freedom of Information Act. The court ruled on two other FOIA issues as well.

The decision is an important one for local governments. It provides clarification on how and when e-mails may be used. It also buttresses the arguments that VML and many of its members have been making for some time that exchanging e-mails is clearly permissible under FOIA.

The court acted on three FOIA issues:

the e-mails did not constitute a meeting;
members-elect are not subject to FOIA; and
an informal meeting by three council members with citizens on a matter of concern to the citizens at the request of the citizens did not constitute a meeting.

E-mails a meeting

Three members of council had traded e-mails among themselves on a matter of city business. The facts showed that the shortest time period between an e-mail and a response was four hours, and the longest time was two days. The citizens who sued alleged that the council members were making city decisions via the e-mails and therefore they were conducting meeting.

The court ruled that the council members were using the e-mails more like faxes or letters and were not part of a meeting. The court ruled that for e-mails to constitute a meeting for purposes of FOIA, there must be a simultaneous exchange of the e-mails. The court based the decision on the definition of meeting in the act. Clearly the council members were not sitting physically. Further, they were not in "an informal assemblage" as Va. Code section 2.2-3701 defines a meeting. The court ruled that in the context of e-mails, an assemblage requires simultaneous use of e-mails.

The court contrasted the e-mail exchange in question with communication through a chat room or instant messaging service, both of which provide simultaneous exchange of messages. The court stated that it was not deciding that chat room conversations would constitute a meeting. By contrasting chat rooms with the e-mails in question, however, it would be likely that a chat room case would be found to be a meeting.

The court followed the reasoning of a 1999 opinion of the attorney general on the same topic. The attorney general had opined that the use of e-mails in a situation much like the one in the Fredericksburg case did not constitute a meeting.

The court did note that the e-mails were public records under FOIA.

VML filed a friend of the court brief on the e-mail issue. For guidance in the future, VML recommends that e-mails may be used so long as they are not being rapidly fired back and forth among the members of council. Further, councils should not use e-mails or other correspondence as a means to reach decisions on matters the council faces.

Members-elect subject to FOIA?

The court ruled that FOIA does not apply to members-elect. It noted that it is the responsibility of the state legislature to make that decision, not the court. Attorney General Jerry Kilgore had legislation introduced this General Assembly session that would have applied FOIA to council members- and supervisors-elect. The bill failed.

Informal meetings with citizens

Three members of Fredericksburg City Council were invited separately by citizens to attend a meeting of neighbors who wanted a stop sign at an intersection. Nothing in the opinion indicates that the three council members knew there would be two other council members at the meeting before they arrived.

The court agreed that their attendance did not create a meeting, even though three were there. The court noted the policy of FOIA to encourage the free discussion by government officials of public matters with the citizens, and that calling the gathering a meeting would go against that policy. The court also noted that the council did not have "any business pending before it on the issue of traffic controls." The court therefore upheld the circuit court’s ruling that the street gathering was not a meeting, but damned the decision with faint praise by stating "the trial court was not plainly wrong or without evidence" to support its decision.

VML would caution against relying on this part of the opinion for having three members of council present at the request of citizens. contents