TABLE OF CONTENTS
TABLE OF AUTHORITIES [OMITTED FROM ONLINE FILE]
• INTEREST OF AMICUS CURIAE
• STATEMENT OF THE CASE
• SUMMARY OF ARGUMENT
• ARGUMENT
• I. ACCESS TO GOVERNMENT RECORDS AND MEETINGS SERVES A VITAL DEMOCRATIC VALUE.
• II. GOVERNMENT USE OF E-MAIL AND ELECTRONIC COMMUNICATION BENEFITS GOVERNMENT AND THE PUBLIC, BUT ITS MISUSE THREATENS CITIZEN ACCESS TO GOVERNMENT
• A. E-MAIL AND EXISTING/EMERGING TECHNOLOGIES.
• B. MISUSE OF E-MAIL HARM S THE PUBLIC RIGHT OF ACCESS.
• III. THE USE OF E-MAIL BY THREE OR MORE MEMBERS OF A LOCAL-GOVERNMENT PUBLIC BODY TO CONDUCT PUBLIC BUSINESS IS NOT ALLOWED UNDER FOIA
• IV. PROHIBITING THE BACK-AND-FORTH EXCHANGE OF E-MAIL BETWEEN THREE OR MORE MEMBERS OF THE SAME LOCAL-GOVERNMENT PUBLIC BODY ON A MATTER OF PUBLIC BUSINESS GIVES PUBLIC OFFICIALS A BRIGHT-LINE RULE TO FOLLOW
• A. BASING THE EXISTENCE OF AN ILLEGAL ELECTRONIC MEETING ON WHETHER A CONSENSUS WAS REACHED ON A MATTER OF PUBLIC BUSINESS DOES NOT GIVE PUBLIC OFFICIALS NEEDED GUIDANCE TO AVOID AN INTENTIONAL OR UNWITTING VIOLATION OF FOIA.
• B. BASING THE EXISTENCE OF AN ILLEGAL ELECTRONIC MEETING ON WHETHER THE E-MAILS ARE EXCHANGED SIMULTANEOUSLY DOES NOT GIVE PUBLIC OFFICIALS NEEDED GUIDANCE TO AVOID AN INTENTIONAL OR UNWITTING VIOLATION OF FOIA.
• V. PROHIBITING THE BACK-AND-FORTH EXCHANGE OF E-MAIL BETWEEN THREE OR MORE MEMBERS OF THE SAME LOCAL-GOVERNMENT PUBLIC BODY ON A MATTER OF PUBLIC BUSINESS DOES NOT CONTRADICT THE 1999 ATTORNEY GENERAL’S OPINION; FURTHER, IT IS CONSISTENT WITH A 2001 OPINION BY THE VIRGINIA FREEDOM OF INFORMATION ACT ADVISORY COUNCIL
• CONCLUSION
CERTIFICATE OF SERVICE [OMITTED FROM ONELINE FILE]
The Virginia Coalition for Open Government (the “Coalition”) is a non-profit, non-partisan citizens’ coalition dedicated to furthering the cause of open government in the Commonwealth of Virginia. A central part of the Coalition’s mission is to help educate citizens and government officials concerning the rights and responsibilities contained in the Virginia Freedom of Information Act. The issues presented in this case touch upon unsettled areas of electronic communication between public officials, and the Coalition strongly believes that it can play an important public education function in providing the Court with a policy-based perspective affirming the public’s right to have local-government public bodies subject to FOIA conduct public business in the open.
Amicus supports the Statement of the Case set forth in the Brief of Appellees Shelton, et al., only to the extent it contends that the exchange of e-mail messages among three or more members of the Fredericksburg City Council on the matter of an upcoming appointment to the local library board constituted an illegal electronic meeting under the Virginia Freedom of Information Act. However, although amicus supports the result, it does not agree with the lower court’s reasoning that the exchange resulted in an improper meeting because the participants reached a crucial point of consensus during the exchange. Instead, amicus believes the exchange was inappropriate because it constituted deliberation on public business that under the statute is required to take place in public. Amicus supports Shelton, et al., on this narrow issue, but declines to take a position on any of the other assignments of error raised on appeal or cross-appeal.
The Virginia Freedom of Information Act (“FOIA”), Va. Code §§ 2.2-3700 et seq., was designed to make the operations of government more transparent. To accomplish that goal, the legislature provided a statutory right of access to government records and a parallel right of access to the meetings of public bodies subject to the FOIA. While the goal of the records-access section of the statute is to ensure public access to government records, subject to specific and narrowly construed exemptions, the goal of the open meetings portion of the statute is to ensure adequate public notice of public meetings and, to ensure the meetings of public bodies are conducted in public (again subject to limited exemptions) and, further, to prohibit any electronic meeting by local government.
Three members of the Fredericksburg City Council Ä Mayor Bill Beck, Vice Mayor Scott Howson and Councilmember Matt Kelly Ä participated in an illegal e-mail discussion (albeit unwittingly) on a matter of public business: whom to nominate for the local library board. FOIA prohibits local public bodies from conducting any meeting by electronic means. Meetings are generally defined in FOIA as the assembly of as many as three members of a public body[fn1] for the discussion of public business. Because the e-mail exchanged between Beck, Howson and Kelly discussed public business via electronic means, the city council members violated FOIA by having an illegal electronic meeting.
Such a conclusion does not eliminate e-mail as a tool for members of local public bodies for communicating with constituents, or even with each other. Furthermore, by construing FOIA to prohibit this type of e-mail exchange, members of local public bodies have a bright-line rule for when their conduct is and is not prohibited by FOIA, guidance lacking in other approaches.
The position taken by amicus is not contrary to a 1999 Attorney General’s Opinion finding that FOIA “does not bar members of a local governing body from sending electronic mail communications to other members of the governing body.” 1999 Va. Atty. Gen. Op. 12. Further, the Coalition’s position is supported by a 2001 opinion of the Virginia Freedom of Information Council (the “Council”), an advisory body created by the General Assembly to provide opinions on the interpretation of FOIA to both government employees and members of the public. Virginia Freedom of Information Advisory Opinion 1 (2001).
I. ACCESS TO GOVERNMENT RECORDS AND MEETINGS SERVES A VITAL DEMOCRATIC VALUE.
Our democratic form of government is based on the consent of the governed. But for that principle to work, the public must have adequate means by which to judge its government and to hold it accountable for its actions. To accomplish that goal the public must have the ability to find out what its government is doing in its name. For more than three decades, such a right has been embodied by freedom of information statutes at both the federal and state level. All 50 states have passed laws establishing a statutory right of access to both records and meetings.
The meetings of public bodies in particular have a long history of public access that dates back to English common-law traditions and beyond. Rather than have the decisions of these public bodies announced to the public as a fait accompli, legislatures, borrowing heavily from common-law traditions, provided a right for the public to attend such meetings and to witness the deliberations and actions of those public bodies.
As U.S. Supreme Court Justice Louis Brandeis noted before he took the bench, “sunlight is said to be the best of disinfectants,”[fn2] and the knowledge on the part of public officials that their actions are subject to public display is a key ingredient in ensuring the accountability of government to the governed.
II. GOVERNMENT USE OF E-MAIL AND ELECTRONIC COMMUNICATION BENEFITS GOVERNMENT AND THE PUBLIC, BUT ITS MISUSE THREATENS CITIZEN ACCESS TO GOVERNMENT.
Electronic mail communication, commonly referred to as e-mail, has radically changed the way in which business is conducted. Government has been equally affected by this revolution. Most adults of today grew up in a world where information was disseminated on paper, frequently augmented by telephone conversations. But the advent of the computer is largely making that model obsolete. E-mail combines the speed of a phone call with the substance of a letter or memo. Because electronic documents can easily be attached to an e-mail message, complex memos, reports or other multi-page projects can be sent to numerous recipients virtually instantaneously, triggering immediate group responses or responses many days later.
A. E-MAIL AND EXISTING/EMERGING TECHNOLOGIES.
E-mail allows computer users to send text, documents, images and many other types of files to one another. Messages are sent from one e-mail user’s computer to the electronic mailbox on another user’s computer; messages can also be sent to multiple users at once. The messages remain in the recipient’s mailbox until they are retrieved by that user. At that point, the user may delete the message, reply to it or forward it to one or many other addressees. E-mail sent to multiple users also gives each individual recipient the opportunity to reply to any one or all of the addressees.
In these respects, e-mail is much like paper correspondence through mail or memos. Though e-mail may resemble standard mail in form, its function is more like a phone call. Like phone calls, an almost limitless number of e-mail messages may be exchanged within the same time frame that it would take for a single letter to be mailed, received, responded to and mailed again. Also like a phone call, the language used in e-mail is informal; abbreviations and “emoticons”[fn3] are frequently used to convey the tone the e-mail writer intends.
Technological advances have accelerated modes and methods of communicating electronically, and there is no reason to suspect their progress will be abated soon. “Chat rooms” and “instant messaging” allow communication in “real time.” Participants are present at the same time and are able to carry on a conversation with other participants for as long as they like and as fast as they can type.
Wireless devices, such as cell phones and personal digital assistants (PDAs), with familiar names such as Palm and Blackberry, now have e-mailing, chat room and instant messaging capability. Some have walkie-talkie features. And some feature “text messaging,” similar to chat rooms and instant messages.
Cable modems and so-called DSL lines provide high-speed Internet and e-mail connections through means other than standard phone lines. Users can thus be “online” 24 hours a day, always ready to send out and receive e-mail, and still be able to make phone calls or receive faxes.
Though Circuit Court’s ruling is limited to e-mail, it is important to keep other electronic communication devices in mind, as they all present similar obstacles for citizens attempting to observe the workings of their government.
B. MISUSE OF E-MAIL HARMS THE PUBLIC RIGHT OF ACCESS.
E-mail has accelerated exponentially the ability of government to communicate internally with other components or levels of government, and externally to the public and the private sector. It has fostered tremendous opportunities in terms of wide dissemination of information, allowing government employees to expand the storage and archival functions for records while at the same time allowing them to disseminate large or small documents quickly. Laws permitting, there is no longer a need for government workers to be in the same physical location or to travel to other locations to meet with fellow collaborators, since much of that discussion can be conducted via rapid e-mail communications allowing for quick, back-and-forth substantive discussions among all or several members of a public body. Distance is no longer an important factor. Government workers can as easily communicate with anyone anywhere in the world as they can with someone in the same office.
Because e-mail knows no boundaries, discussions between groups of individuals can easily occur outside the public purview. Such discussions present great potential for constituting a meeting, as defined in FOIA, as “a body or entity or as an informal assemblage of (i) as many as three members . . . wherever, held, with or without minutes being taken, whether or not votes are case, or any public body.” Va. Code § 2.2-3701.
When an e-mail discussion occurs among at least three members (or a quorum, if less than three) of a local-government public body, such a discussion can easily stray into areas of public business that should be discussed at a non-electronic meeting convened with appropriate prior notice. Because e-mails can so rapidly be sent, received, responded to and further discussed, an illegal electronic meeting can occur before the participating members of the local public body even realize it.
III. THE USE OF E-MAIL BY THREE OR MORE MEMBERS OF A LOCAL-GOVERNMENT PUBLIC BODY TO CONDUCT PUBLIC BUSINESS IS NOT ALLOWED UNDER FOIA.
In striking a compromise on electronic meetings, the General Assembly concluded that, under certain circumstances, public bodies of the state should be allowed the ability to meet occasionally via electronic means, allowing those members who could not travel to a central location to still participate in the meeting. Section 2.2-3708(A) sets forth the procedures for state bodies to meet via electronic means.
The General Assembly did not, however, grant the same leeway to the public bodies of local government:
For purposes of this section, “public body” means any public body of the Commonwealth, but excludes any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government.”
Va. Code. §2.2-3708(B). The rationale of having to travel a long distance to attend a meeting has little or no application in the local-government setting. Thus, because local public bodies may not hold a legal meeting via means of electronic communications, a local body that did so would be in clear violation of § 2.2-3708 and possibly subject to fines.
Local-government officials may still use e-mail, of course. For instance, they may poll each other one at a time to ascertain positions on public issues, and this statutory provision specifically provides for electronic communication:
Notwithstanding the foregoing, nothing contained herein shall be construed to prohibit (i) separately contacting the membership, or any part thereof, of any public body for the purpose of ascertaining a member’s position with respect to the transaction of public business, whether such contact is done in person, by telephone or by electronic communication, providing the contact is done on a basis that does not constitute a meeting as defined in this chapter.
Va. Code § 2.2-3710(B) (emphasis added). This provision indicates, first, that members of a public body can communicate by electronic means, including e-mail, with other members to ascertain those members’ position on a matter of public business. But beyond that, the polling of members is specifically circumscribed by the final clause, indicating that such a polling procedure is not permissible if it constitutes a meeting under the provisions of the statute.
Public officials may use e-mail in other ways, too. For example, Member X can send individual e-mail messages to every member of the public body. Member X can also send one e-mail message to all the members as a group. If the matter has nothing to do with the transaction of public business, for example, it announces a member’s birthday or the results of a high school football game, there is no restriction on how many people may engage in the back-and-forth exchange.
If, however, the message Ä sent individually or en masse Ä is on a matter of public business, then there are restrictions. Recipients can respond to the sender, or can have a one-one-one exchange with another recipient. They cannot, however, click “reply all” or in any way respond so that the whole group is privy to the exchange. At this point, the communication becomes an impermissible electronic meeting by local government.
The chart below is intended to illustrate occurrences when e-mail exchanges do and do not rise to the level of an illegal electronic meeting by a local-government public body.
|
As applied to local public bodies |
Is it a matter of public business? |
Did the recipient respond only to Member X? |
Did the recipient respond to Member X and at least one other? |
Was there an impermissible electronic meeting by local government? |
|
Member X sends e-mail message to 1 recipient |
no |
n/a |
n/a |
no |
|
Member X sends e-mail message to 1 recipient |
yes |
yes |
no |
no |
|
Member X sends e-mail message to 1 recipient |
yes |
no |
yes |
yes |
|
Member X sends e-mail message to at least two other members |
no |
n/a |
n/a |
no |
|
Member X sends e-mail message to at least two other members |
yes |
yes |
no |
no |
|
Member X sends e-mail message to at least two other members |
yes |
no |
yes |
yes |
Members could still communicate with constituents, even constituent groups, via e-mail. They would also be free to forward documents, articles, spread sheets or other information to each other, even when related to public business. Members could express to others their opinion on matters of public business.
Ultimately, the burden is on the recipients of these messages. Recipients must make sure that they are responding only to one other person at a time, not to two or more other members of the same public body.
As applied to this case, Beck, et al. could have sent each other individual e-mail messages to ascertain those members’ position on the local library board nominee. But there should not have been a back-and-forth e-mail exchange on a matter of public business, that resulted in an improper electronic meeting by a local-government public body.
IV. PROHIBITING THE BACK-AND-FORTH EXCHANGE OF E-MAIL BETWEEN THREE OR MORE MEMBERS OF THE SAME LOCAL-GOVERNMENT PUBLIC BODY ON A MATTER OF PUBLIC BUSINESS GIVES PUBLIC OFFICIALS A BRIGHT-LINE RULE TO FOLLOW.
FOIA may be called a code of procedure. It instructs citizens how to request records and attend meetings. It also sets out the steps public bodies must follow to honor those requests. The statute strives to maintain a balance between full and fair access to government and government’s occasional need to maintain confidentiality.
Though the exemptions to the presumed accessibility of records and meetings may be exercised within the government’s discretion, the rest of the process is specifically delineated. Specificity within the statute leaves little doubt about the expectations of both citizens and government, and is beneficial to both. The more precise the requirements, the less chance there is for government officials to violate the statute inadvertently. By prohibiting all back-and-forth exchanges of e-mail by three or more members of a local public body on a matter of public business, local governments will have a bright-line rule to follow.
A. BASING THE EXISTENCE OF AN ILLEGAL ELECTRONIC MEETING ON WHETHER A CONSENSUS WAS REACHED ON A MATTER OF PUBLIC BUSINESS DOES NOT GIVE PUBLIC OFFICIALS NEEDED GUIDANCE TO AVOID AN INTENTIONAL OR UNWITTING VIOLATION OF FOIA.
Officials would not have such specific guidance under an interpretation of e-mail as a electronic meeting based on whether the messages were used to build consensus or merely to exchange information. The reality of e-mail exchanges, as in a face-to-face conversation, is that what starts out as an innocent exchange of information can quickly turn into an effort to build consensus. There is no single point to identify the transformation, and a public official, not knowing whether and when the e-mail exchange has turned into consensus building, may find himself in violation of FOIA. Prohibiting the back-and-forth exchange of e-mail by three or more members of a local-government public body on a matter of public business obviates the need for those public officials to second-guess, and possibly censor themselves for fear that what they thought was an innocent exchange of information could be regarded by a court as a consensus-building, and therefore illegal, exchange via electronic means.
B. BASING THE EXISTENCE OF AN ILLEGAL ELECTRONIC MEETING ON WHETHER THE E-MAILS ARE EXCHANGED SIMULTANEOUSLY DOES NOT GIVE PUBLIC OFFICIALS NEEDED GUIDANCE TO AVOID AN INTENTIONAL OR UNWITTING VIOLATION OF FOIA.
Premising the existence of an illegal electronic meeting by a local-government public body on whether the messages were exchanged “simultaneously” does not give local public officials necessary guidance, either. Under such an approach, an illegal meeting would presumably be based, then, on the amount of time elapsed between e-mail responses. There are several practical problems with this argument. First, as FOIA is silent on the issue, public bodies would be left to invent their own definitions of how long that time frame is. One body might decide that only “real time” e-mail exchanges, such as in chat rooms or instant messaging, would be simultaneous. Another might decide that five minutes is still within the range of being “simultaneous.” Still others may say that the time-delay could be an hour or more. There would be no statewide consistency. Defining a time limit would also invite abuse: an unscrupulous official could sit poised by his computer, waiting for the requisite amount of time to elapse before firing off his own response.
Another practical problem is whether the time limit would be measured by the time the e-mail arrives in the recipient’s mailbox, when the recipient reads it, or when the recipient sends back a response. Inconsistent statewide policies and potential abuse are, again, likely consequences.
A third practical problem is that there is not a universal time/date-stamp to identify each e-mail. Even if a group of users synchronized their computers’ internal clocks, those times can run slow if the battery is waning. They can also be easily manipulated to pre- or post-date the actual time or date. Public officials would have to rely on the time stated on the e-mail at their own peril, lest they be later accused that they responded so quickly as to make it a prohibited simultaneous exchange.
V. PROHIBITING THE BACK-AND-FORTH EXCHANGE OF E-MAIL BETWEEN THREE OR MORE MEMBERS OF THE SAME LOCAL-GOVERNMENT PUBLIC BODY ON A MATTER OF PUBLIC BUSINESS DOES NOT CONTRADICT THE 1999 ATTORNEY GENERAL’S OPINION; FURTHER, IT IS CONSISTENT WITH A 2001 OPINION BY THE VIRGINIA FREEDOM OF INFORMATION ACT ADVISORY COUNCIL.
A. THE 1999 ATTORNEY GENERAL OPINION
In 1999, the Attorney General addressed the specific question of whether FOIA “prohibits an elected member of a local governing body from sending electronic mail communications to three or more other members of the governing body.” 1999 Va. Op. Atty. Gen. 12, 12.
The Attorney General stressed the narrow reach of his opinion. For instance, the opinion considered “only the basic type of electronic mail system,” but not “whether systems exist that contain features making them similar to communications by audio or video means or whether the use of such systems would result in the same conclusion.” 1999 Va. Op. Atty. Gen. 12, n.5.
Further, the Attorney General cautioned that his opinion did not say that “in a particular factual setting, communicating through electronic mail could not violate some other provision of the Virginia Freedom of Information Act or conflict with the policy of the Act.” 1999 Va. Op. Atty. Gen. 12, n.6.
The Attorney General concluded that a one-way, single e-mail sent to at least two other members of a local body is not a violation of FOIA, but the opinion did not address the subsequent exchange and further replies to the same group of people. Those exchanges, if on a matter of public business by local governments, are prohibited under FOIA as an electronic meeting, a conclusion not ruled out by the Attorney General’s opinion. Also of interest, the Attorney General’s opinion did not discuss simultaneity as an element of legal or illegal electronic meetings.
B. THE 2001 VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL ADVISORY OPINION.
Just over a year after the Attorney General’s opinion, the General Assembly approved the creation of the Freedom of Information Advisory Council (the “Council”), which began operation in July 2000. The Council, housed within the Division of Legislative Services, was created “to encourage and facilitate compliance with the Freedom of Information Act.” Va. Code § 30-178.(A) The Council’s services are intended to give all comers quick, free answers to FOIA-related questions as an alternative to litigation.
Among the Council’s duties is publishing educational materials, conducting training and educational programs, and furnishing advisory opinions to any person, or agency of state or local government. While opinions of the Council have no legally binding authority, the clear intention in creating the Council was to establish an expert source of administrative interpretation of FOIA that would provide persuasive guidance to government and public alike. Senior Assistant Attorney General James W. Hopper said in 2003 that an opinion from the Council “is presumed to be correct and entitled to great weight unless plainly wrong.” “Scenes From The VSB Annual Meeting,” Virginia Lawyers Weekly, June 30, 2003. Requests for opinions can be made by anyone, whereas similar requests for an opinion from the Attorney General, who appoints one member to the Council’s 12-member board, can only be made by certain public officials designated by statute.
In January 2001, the Council issued an advisory opinion on the use of a so-called “mailing list server” by members of the same public body. Virginia Freedom of Information Advisory Opinion 1 (2001). According to the opinion, a mailing list server is:
. . . another type of electronic communication system where each message posted on the server would be addressed to a server address, instead of individual user’s [sic] addresses. The message is then automatically broadcast to everyone on the server’s list server list. 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.
Id. Citing the Attorney General’s opinion, the Council also noted that mailing list servers presented additional issues and concerns that today’s technological advances make it “difficult to draw the line between what type of electronic exchange constitutes correspondence, and what constitutes an electric discussion.” Id. The Council opined that use of a mailing list server by members of a local-government public body would violate the electronic meeting provisions of FOIA because citizens would be deprived of the opportunity to witness the operation of government. The Council concluded:
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 transmission 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.
Id. The back-and-forth exchange of e-mail between three or more members of the same local public body on a matter of public business, following the opinion of the Attorney General and the Council, would similarly be prohibited.
As stated in its opening section, the Virginia Freedom of Information Act “ensures the people of the Commonwealth ready access to public records . . ., and free entry to meetings of public bodies wherein the business of the people is conducted.” §2.2-3700(B). Further, the provisions of FOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government.” Id.
E-mail is a powerful tool for local governments and their constituents. Its proper use should be encouraged to promote greater accessibility and efficiency. As a relatively new medium, one not fully addressed by FOIA, caution must be exercised to guard against intentional or unwitting abuses.
Prohibiting the back-and-forth exchange of e-mail between at least three members of the same local-government public body on a matter of public business is consistent with existing interpretations of e-mail under FOIA, provides guidance for officials and supports the legislative intent of the act as a whole.
The esteemed Supreme Court of Virginia should AFFIRM the Circuit Court ruling.
Respectfully submitted,
________________________________
J. Jack Kennedy, Jr. (VSB No. 21621)
P.O. Box 3444
Wise, Virginia 24293
Counsel of Record for Amicus, Virginia Coalition
for Open Government
Footnotes:
1. Va. Code §2.2-3701. This subsection states also that public meeting requirements apply to “a quorum, if less than three.” Further references will be made only to the “as many as three” language for brevity.
2. Louis D. Brandeis, Other People’s Money, and How the Bankers Use It (F. A. Stokes, New York) (1914).
3. CNET.com Glossary (site last visited 9/3/03).