FOI Advisory Council Opinion AO-06-19
AO-06-19
August 6, 2019
Sara Gregory
The Virginian Pilot
via electronic mail
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 electronic mail dated May 30, 2019.
Dear Ms. Gregory:
You have asked whether the conduct of certain meetings of the Norfolk School Board (the Board) was in violation of the Virginia Freedom of Information Act (FOIA) due to the Board's failure to provide proper public notice of certain Board meetings and to take minutes during such meetings.
Factual Background
In your electronic mail, you described five situations where you believe the Board may have violated the meetings requirements of FOIA. In the first situation, the Board held meetings during a two-day retreat from January 3-4, 2019. There was no notice of this meeting until January 2, 2019, and minutes were not taken until after a reporter reminded the Board's clerk that minutes were required. Second, at the January retreat a reporter learned that another retreat was held in October 2018, but no notice had been given and no minutes were taken during this retreat. Third, the Board held a joint meeting with the Norfolk Public Library Board of Trustees (the Library Board) on February 19, 2019, but notice was provided only two hours before the meeting and minutes were not taken. You related that, when a reporter objected, the Board Chair said the lack of notice, "was a complete oversight on our part." Fourth, the Board met to evaluate the superintendent on March 27, but gave no notice of this meeting. You related that the Board Chair later told a reporter that the Board voted to convene a closed meeting for personnel reasons at the start of this meeting and met for about two hours with the Board's attorney in attendance. Fifth, notice of a special meeting held on Wednesday, February 27, 2019, was posted on Sunday, February 24, 2019, but taken down on Tuesday, February 26, 2019. You further indicated that editors and reporters from The Virginian Pilot have had multiple conversations with Board members and staff about these meetings and the requirements of FOIA.
Applicable Law and Analysis
The The policy of FOIA expressed in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth . . . free entry to meetings of public bodies wherein the business of the people is being conducted." The policy continues to state that "[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public." The policy further directs that 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." FOIA defines "meeting" in § 2.2-3701 to include "meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2, 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."
The requirements for posting notice are set forth in subsections C through E of § 2.2-3707. Subsection C addresses notice of regularly scheduled meetings; subsection D addresses notice of special, emergency, or continued meetings; and subsection E addresses individual requests for direct notice, which is generally done by electronic mail (but is not at issue for the purposes of this opinion, as you presented no questions regarding direct notice). The general rule is that notice of a public meeting should be posted three working days prior to the meeting, as set forth in subsection C. Working days do not include weekends or legal holidays, and the day of the meeting should not be counted as one of the three working days. The first requirement of subsection D is that all notices of special, emergency, or continued meetings be "reasonable under the circumstance." A decision regarding whether any particular notice given was "reasonable under the circumstance" necessarily involves factual determinations that can only be made by a court. Generally speaking, public bodies should post notice at least three working days in advance of any meeting unless the particular factual circumstances surrounding a special, emergency, or continued meeting necessitate a shorter time period. The second requirement of subsection D is that notice of a special, emergency, or continued meeting must always "be given contemporaneously with the notice provided to members of the public body." Regarding minutes, subsection H of § 2.2-3707 requires that "[m]inutes shall be recorded at all open meetings" and sets forth requirements for the contents of minutes.
Considering the first four situations you described, the facts presented do not indicate whether these meetings were part of the Board's regular schedule or were called as special, emergency, or continued meetings. As it is not clear which notice provision would apply to these meetings, both circumstances will be addressed below. For the fifth situation, you described the meeting as a "specially called meeting" and it will therefore be considered a special meeting for the purposes of this opinion.
Situation #1: January retreat
If the January retreat was a regularly scheduled meeting, then notice would have been required to be posted at least three working days prior to the meeting. Notice posted only one day prior as you described would be insufficient. On the other hand, if this retreat was a meeting called outside of the regular schedule, then the notice would have to be "reasonable under the circumstance" and posted "contemporaneously with the notice provided to the members of the public body conducting the meeting." As stated above, only a court may determine whether notice was "reasonable under the circumstance." In this instance, it is not clear what, if any, circumstance may have prevented the Board from providing notice the usual three working days in advance, nor have any facts been presented regarding whether the notice posted the day before the retreat was contemporaneous with the notice given the Board members. In short, if the January retreat was a regular meeting of the Board, notice as you described was insufficient, but if it was a special, emergency, or continued meeting, then the facts presented do not provide enough information to form an opinion.
Regarding minutes, you indicated that staff informed you that they generally did not take minutes at retreats because retreats were considered "events," rather than "meetings." However, staff did take minutes of the January retreat after being reminded of FOIA's requirement to do so. You did not present any question or statement regarding the contents of those minutes. Presuming the contents were in compliance with FOIA, then taking minutes of the retreat was the proper action as required under subsection H of § 2.2-3707.
Situation #2: October retreat
You indicated that no notice was given and no minutes were taken of the retreat held in October 2018. Presuming this retreat was a meeting of the Board subject to FOIA, it would not matter what type of meeting (regular, special, etc.) it was, because both failing to post notice and to take minutes of an open public meeting would be violations of FOIA's requirements under § 2.2-3707.
Situation #3: Joint meeting with the Library Board
This situation is similar to the first situation in that it is not clear whether this joint meeting was part of the Board's regular schedule or another type of meeting. However, in this instance you indicated the reason the notice was posted only two hours before the meeting was because it was an "oversight." Notice posted two hours before a regular meeting clearly would not meet the requirement to post three working days prior to the meeting. If this joint meeting was a special, emergency, or continued meeting, it is likely that justifying posting notice only two hours before the meeting as an "oversight" would not be "reasonable under the circumstance," as there would appear to be no factual circumstance that prevented notice from being posted earlier, only an error on the part of the Board. However, as previously stated, only a court can rule on whether a particular notice was reasonable. As in situation #2, a failure to take minutes of an open public meeting would be a violation of FOIA.
Situation #4: Evaluation of the Superintendent
You stated that the Board voted to enter a closed meeting at the start of this meeting and met for about two hours in a closed meeting, with their attorney present, but that no notice was given of the initial, public meeting. As stated above, a total failure to provide notice of a public meeting would be a violation of FOIA. Additionally, as previously advised by this office, closed meetings must start with a public meeting where the public body takes an affirmative recorded vote approving a motion that identifies the subject matter of the closed meeting, the purpose of the closed meeting, and the applicable exemption from the open meeting requirements. Note also that, pursuant to subsection A of § 2.2-3710, votes must be "taken at a meeting conducted in accordance with the provisions of this chapter." Public bodies should be aware that the Office of the Attorney General has opined that in accordance with this provision, a vote taken at a meeting that was not properly noticed would be null and void.
Situation #5: Special meeting
Regarding this meeting, you stated that notice was posted on a Sunday, February 24 then removed on Tuesday, February 26 for a meeting that was held on Wednesday, February 27. I would first note that Sundays generally are not working days and therefore do not count as such for the purposes of providing notice. However, as a special meeting, the notice for this meeting had to be "reasonable under the circumstance" and posted at the same time the members were notified. Even if we consider the notice to have been posted on Monday, February 25, that would still be two working days before the Wednesday, February 27 meeting. As the circumstance requiring this special meeting is unknown, it is impossible to opine on whether the Sunday, February 24 notice was posted sufficiently prior to the meeting. FOIA does not address a situation where a posted notice is removed prior to the stated meeting date and such meeting is held anyway, nor did research reveal any precedent on point. However, as quoted above, FOIA is to "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." Considering the facts as you presented them, someone who checked for notice on Sunday or Monday would have been aware of the special meeting to be held on Wednesday, but someone who checked on Tuesday or Wednesday would not because the notice was removed. While there is no specific provision addressing the removal of posted notice prior to the stated meeting date, it would likely violate the policy of FOIA to do so because it would limit the awareness of governmental activities and the ability of citizens to witness the operations of government.
Thank you for contacting this office. We hope that we have been of assistance.
Sincerely,
Alan Gernhardt
Executive Director
Ashley Binns
Staff Attorney
1Note that the definition also includes certain exceptions, none of which would apply under the facts you have described.
2Freedom of Information Advisory Opinion 06 (2017).
3The subsection also includes certain exceptions to the minutes requirements, but none of the exceptions would apply under the facts that you have described.
4Note that FOIA does not define the term “event.” FOIA defines “meetings” and sets out certain procedural rules for the conduct of meetings. For purposes of this opinion, we are considering whether or not the gathering of individuals constitutes a “meeting” under FOIA, not whether it is considered an “event,” since that is not a defined term under the statute.
5See, e.g., Freedom of Information Advisory Opinion 08 (2007).
6Freedom of Information Advisory Opinion 04 (2018), n. 6.
7See Op. Atty. Gen. Va. No. 08-114 (2009).
8See, e.g., Freedom of Information Advisory Opinions 05 (2013), 07 (2011), 06 (2009), 23 (2004), and 14 (2002 See Freedom of Information Advisory Opinion 06 (2017) for discussion of "working days" in the context of meeting notices.).
