FOI Advisory Council Opinion AO-04-20
AO-04-20
October 7, 2020
David Konick
Chairman, Rappahannock County Planning Commission
Via Email
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 messages from June 2020.
Dear Mr. Konick:
You have asked about the requirements under the Virginia Freedom of Information Act (FOIA) for a member of a public body to participate in a public meeting by electronic communication means either due to a personal matter or due to a medical condition or disability that prevents physical attendance in light of the COVID-19 pandemic state of emergency. As background information, you related that all in-person meetings were stopped in mid-March 2020 due to the COVID-19 state of emergency but in-person meetings have since resumed following the provisions of a local emergency ordinance and the Governor's Executive Orders regarding the state of emergency. In requesting this opinion, you stated that:
a number of the Commissioners have opted to participate electronically under a claim that they are in the age group that is more susceptible to COVID-19, as a consequence of which they do not want to attend a public meeting of the Commission and wish to participate electronically. None of them have stated they actually are afflicted with COVID-19, but only that they do not wish to attend because of a concern they might risk contracting it by attending in person.
You then posed the following two questions:
(1) Are the members who want to participate electronically in any Planning Commission meeting required to specify in their request whether they are basing the request on subsection (a) or subsection (b) of Code § 2.2-3708.2(A)(1), and is their failure so to do a basis for denying the request?
(2) Does a member's "fear" or "concern" (regardless of whether reasonable or not) that such member might risk contracting COVID-19 qualify as "a temporary or permanent disability or other medical condition that prevents the member's physical attendance" as defined in Code § 2.2-3708.2(A)(1)(a), or is it merely a "personal matter" as set forth in Code § 2.2-3708.2(A)(1)(b) where, as here, the member does not actually have the disability or other medical condition?
You further expressed your opinion that the distinction is important because electronic participation of a member due to the "personal matter" exception of subdivision A 1 b of § 2.2-3708.2 of the Code of Virginia is limited to two meetings per calendar year. You also raised a policy question by observing that subsection B of § 2.2-3700 states that "[a]ny exemption from public access to records or meetings shall be narrowly construed." You noted that § 2.2-3708.2 is itself an exemption to the general rule that all members be physically present for public meetings and opined that, following the narrow construction rule, subdivision A 1 a of § 2.2-3708.2 (the provision allowing remote participation due to a disability or medical condition) could not "apply unless the member actually was afflicted with the disease, and that such affliction actually prevents their physical attendance. Otherwise, it would appear that this is merely 'a personal matter' and the two meetings per year rule would apply."
Addressing the policy question first, subsection B of § 2.2-3700 states that "[t]he provisions of this chapter 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. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." Subsections A and B of § 2.2-3707 establish the general rules that meetings must be open to the public and shall not be held using electronic communication means, but both subsections allow for limited exceptions:
A. All meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711.
B. No meeting shall be conducted through telephonic, video, electronic or other electronic communication means where the members are not physically assembled to discuss or transact public business, except as provided in § 2.2-3708.2 or as may be specifically provided in Title 54.1 for the summary suspension of professional licenses.
An "open meeting" or "public meeting" is defined in § 2.2-3701 as "a meeting at which the public may be present." A "closed meeting" is defined in the same section as "a meeting from which the public is excluded." In the most recent opinion from this office, we cited rules of statutory interpretation as stated by the Supreme Court of Virginia: "[i]n construing statutory language, we are bound by the plain meaning of clear and unambiguous language."1 In expressing the same concept, the Court has previously stated:
While in the construction of statutes the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.2
Additionally, the Court has stated that "when ... a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature's intent from the ... language used. When the legislature leaves a term undefined, courts must give [the term] its ordinary meaning, [taking into account] the context in which it is used."3
In discussing FOIA's policy in the context of electronic meetings and advocating for a narrow construction of the electronic meetings provisions, you referred to a recent opinion of the Attorney General concerning the conduct of meetings by electronic means in response to the COVID-19 state of emergency declared by the Governor.4 That opinion stated that "[FOIA] creates a strong presumption that meetings of 'public bodies' are open to the public and conducted in person."5 It also quoted FOIA's policy "to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government" and stated that "a public body may not conduct a meeting through 'electronic communication means' unless doing so is authorized by either: (a) Code§ 2.2-3708.2; or (b) another law that takes precedence over VFOIA in particular circumstances."6 You posited that because the provisions for electronic meetings in § 2.2-3708.2 are exceptions to the usual rule requiring meetings to be held in person, the meetings provisions allowing members to participate electronically must be construed narrowly as exemptions from public access. However, while the cited opinion from the Attorney General applies the liberal construction rule of FOIA as quoted previously, it does not appear to apply the narrow construction rule for exemptions in its interpretation of subdivision A 3 of § 2.2-3708.2 (addressing the procedural requirements for holding electronic meetings without a quorum in response to a state of emergency declared by the Governor). Note that, as quoted previously, the open meeting rule established by subsection A of § 2.2-3707 refers to the exceptions in §§ 2.2-3707.01 (concerning certain meetings of the General Assembly) and 2.2-3711 (which sets forth the bulk of FOIA's closed meeting exemptions). By contrast, the rule against electronic meetings is in subsection B of § 2.2-3707 and its exceptions are found in § 2.2-3708.2. Consider also that both the personal matters and the disability or medical condition provisions for electronic participation are also subject to the requirements of subsection C of § 2.2-3708.2:
C. Participation by a member of a public body in a meeting through electronic communication means pursuant to subdivisions A 1 and 2 and subsection B shall be authorized only if the following conditions are met:
1. The public body has adopted a written policy allowing for and governing participation of its members by electronic communication means, including an approval process for such participation, subject to the express limitations imposed by this section. Once adopted, the policy shall be applied strictly and uniformly, without exception, to the entire membership and without regard to the identity of the member requesting remote participation or the matters that will be considered or voted on at the meeting;
2. A quorum of the public body is physically assembled at one primary or central meeting location; and
3. The public body makes arrangements for the voice of the remote participant to be heard by all persons at the primary or central meeting location.
Applying subdivisions C 2 and 3 as quoted previously, any meeting of a public body where a member participates electronically due to a personal matter or a disability or medical condition must have a quorum "physically assembled at one primary or central meeting location" and the remotely participating member's voice must be able "to be heard by all persons at the primary or central meeting location." In other words, under these provisions, there still has to be a public meeting location where the public has in-person access to a quorum (or more) of the members physically assembled and access to hear the remote participant's voice (and presumably, with the appropriate audio/visual technology, the public could see the remote participant as well). Reading these provisions together makes clear that the electronic meetings provisions in § 2.2-3708.2 are alternative procedures that allow a member to participate in certain public meetings by electronic means, but they do not exempt such meetings from public access. This concept is reinforced by the opinion of the Attorney General you mentioned, as it referred to the electronic meetings provisions as "alternative methods to conduct the operation of government," rather than exemptions to open meetings requirements.7 By contrast, compare the closed meetings exemptions in subsection A of § 2.2-3711, which allow meetings held to discuss certain matters to be closed to the public entirely, which by definition means that the public is excluded from such meetings. Electronic meetings provisions allow public meetings to be conducted differently by setting out exceptions to the usual requirement for in-person participation, but they are still public meetings because there are provisions for the public to be present. In order to exclude the public from an electronic meeting, a public body would still have to cite a closed meeting exemption, just as it would for a meeting conducted in person. The narrow construction rule is that "[a]ny exemption from public access to records or meetings shall be narrowly construed." Because the electronic meetings provisions in § 2.2-3708.2 are alternative procedures for the conduct of meetings, not exemptions that allow meetings to be closed to the public, we do not have to apply a narrow construction to them. However, the electronic meetings procedures must still 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."
Turning to your first enumerated question, you asked whether a member who wishes to participate remotely must specify whether he or she is calling in due to a personal matter or instead using the provision for disabilities or medical conditions. You pointed out that the distinction is important because the provisions for personal matters under subdivision A 1 b of § 2.2-3708.2 may only be used by each member two times per calendar year. The language of subdivision A 1 of § 2.2-3708.2 requires that:
on or before the day of a meeting, a member of the public body holding the meeting [must notify] the chair of the public body that:
a. Such member is unable to attend the meeting due to a temporary or permanent disability or other medical condition that prevents the member's physical attendance; or
b. Such member is unable to attend the meeting due to a personal matter and identifies with specificity the nature of the personal matter. Participation by a member pursuant to this subdivision is limited each calendar year to two meetings.
While my research did not reveal any prior court cases or advisory opinions interpreting these provisions, it seems apparent from a plain reading of the quoted language that a member calling in under subdivision A 1 of § 2.2-3708.2 must notify the chair on or before the day of the meeting that he or she is calling in due to a disability or medical condition (as provided by subdivision A 1 a) or due to a personal matter (as provided by subdivision A 1 b). As you pointed out, it is important to know whether a member is calling in due to a personal matter in order to keep track of how many times per year the member has used that provision in order to avoid violations of that limitation. Additionally, note that subdivision A 2 of § 2.2-3708.2 further requires that if a member participates remotely due to a disability or medical condition, "the public body shall also include in its minutes the fact that the member participated through electronic communication means due to a temporary or permanent disability or other medical condition that prevented the member's physical attendance." By contrast, if a member participates remotely due to a personal matter, "the public body shall also include in its minutes the specific nature of the personal matter cited by the member." These differing requirements further demonstrate that a member participating remotely must specify whether such participation is due to a personal matter or due to a disability or medical condition because, without that information, the minutes would be deficient. Requiring the member to identify the reason as a personal matter or as a disability or medical condition also serves the purpose of FOIA by better informing the public why a member is not participating in person. Therefore, this question is answered in the affirmative, that a member participating remotely under subdivision A 1 of § 2.2-3708.2 must specify whether such participation is due to a personal matter (subdivision A 1 b) or instead due to a disability or medical condition (subdivision A 1 a).
However, it is also important to note that the level of specificity required under FOIA differs depending on the reason for the remote participation. A member participating remotely due to a disability or medical condition need only state that fact to the chair of the public body and include that fact in the minutes, without necessarily specifying the nature of the disability or medical condition. On the other hand, a member participating remotely due to a personal matter must identify the nature of the personal matter "with specificity" to the chair and include "the specific nature of the personal matter" in the meeting minutes. The relative lack of required specificity when identifying a disability or medical condition as the reason for remote participation, as compared to the requirement for specificity in identifying a personal matter, makes sense as a general statutory theme allowing individuals privacy in their personal health information. That theme is demonstrated by the FOIA exemption for health records at subdivision 1 of § 2.2-3705.5 that cross-references the health records privacy law at § 32.1-127.1:03, the closed meetings exemption for the discussion or consideration of such records at subdivision A 16 of § 2.2-3711, and various other laws that deal with health records in the Code of Virginia, as well as federal laws such as the Health Information Portability and Accountability Act of 1996 (HIPAA).8
Turning to your second enumerated question, you asked whether a member's "fear" or "concern" that such member might risk contracting COVID-19 qualifies as "a temporary or permanent disability or other medical condition that prevents the member's physical attendance" or is instead a "personal matter" when the member does not actually have COVID-19. FOIA does not define what is "a temporary or permanent disability or other medical condition that prevents the member's physical attendance." Following the rules of statutory construction, we turn to the ordinary usage of these terms in the absence of a statutory definition.
Dictionary.com provides six definitions of "disability," the first four of which are most relevant in this instance:
1 lack of adequate power, strength, or physical or mental ability; incapacity.
2 a physical or mental handicap, especially one that hinders or prevents a person from performing tasks of daily living, carrying out work or household responsibilities, or engaging in leisure and social activities.
3 anything that disables or puts one at a disadvantage:
His mere six-foot height will be a disability in professional basketball.
4 the state or condition of being disabled.
Another relevant definition of "disability" from the Merriam-Webster dictionary online is "a physical, mental, cognitive, or developmental condition that impairs, interferes with, or limits a person's ability to engage in certain tasks or actions or participate in typical daily activities and interactions."9
The same sources did not provide definitions of the phrase "medical condition," but it has been defined in an online medical dictionary as follows:
A disease, illness or injury; any physiologic, mental or psychological condition or disorder (e.g., orthopaedic; visual, speech or hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; coronary artery disease; diabetes; mental retardation; emotional or mental illness; specific learning disabilities; HIV disease; TB; drug addiction; alcoholism). A biological or psychological state which is within the range of normal human variation is not a medical condition.
Medical condition is a phrase used in documents for physicians applying to licensing agencies (e.g., state medical boards, malpractice insurance carriers, third-party payers, etc.), which is used to determine a physician's physical "suitability" to practise medicine.10
Two other definitions of "medical condition" are "a disease, illness, injury, genetic or congenital defect, pregnancy, or a biological or psychological condition that lies outside the range of normal, age-appropriate human variation" and "the state of a patient's physical or mental health, including the patient's illness, injury, or disease."11 The word "prevent" in ordinary usage means "to keep from occurring; avert; hinder" or "to hinder or stop from doing something."12 Alternative definitions include "to keep from happening or existing" and "to hold or keep back: HINDER, STOP —often used with from."13
Reading these definitions in context, the phrase "temporary or permanent disability or other medical condition that prevents the member's physical attendance" would mean any number of illnesses, injuries, diseases, disorders, or other states of physical or mental health that fall outside the normal range of human variation that hinder or stop a member of a public body from attending a meeting in person. You have asked whether the fear or concern of contracting COVID-19 qualifies as such a disability or medical condition or whether it is instead a personal matter, particularly for a member of a public body who does not actually have COVID-19. You advocated for a narrow interpretation of the provision allowing remote participation due to a disability or medical condition and assert that, given such an interpretation, the provision should not be used "unless the member actually was afflicted with the disease, and that such affliction actually prevents their physical attendance." Under normal circumstances, a generalized fear or concern about catching an illness with no specific basis in fact would not qualify as a "temporary or permanent disability or other medical condition that prevents the member's physical attendance." However, as described previously, the narrow construction rule does not apply here because the electronic meetings provisions are alternative procedural rules for the conduct of public meetings, not exemptions from public access. Additionally, if taken to its logical extreme, requiring that a member "actually" be prevented from physically attending a meeting would imply that the member is bedridden, restrained, or otherwise rendered physically incapacitated and utterly unable to travel, which is an unreasonable interpretation of this provision considering the breadth of illnesses, injuries, conditions, etc. that are reflected in the definitions quoted previously. Consider if a member had a contagious illness (whether a common cold, COVID-19, or what have you) diagnosed the same day as the meeting, was advised by his or her doctor to stay home, was prescribed medication, and was told that he or she would remain contagious for a number of days thereafter. It would be reasonable to allow a member to participate remotely under such circumstances in order to avoid the spread of contagion and to allow the member better rest and recovery, regardless of whether the member was "actually" prevented from physically attending due to the illness. To say otherwise would be to substitute the public body's judgment on matters of health in place of the member's own judgment and, if the member did see a doctor as posited, in place of the medical professional's judgment as well. Additionally, keep in mind that the whole point of allowing remote participation due to a disability or medical condition is to allow members to participate when they otherwise would miss the meeting due to the disability or medical condition.14 Disallowing members to participate in a meeting based on the type or severity of a disability or medical condition does not serve the public purpose of allowing the public to witness the operation of government; it merely prevents certain members of public bodies from participating when they otherwise might do so by electronic means rather than in person.
Finally, consider the nature of the COVID-19 pandemic and the current state of emergency, as stated by the Attorney General:
On March 12, 2020, the Governor "declare[d] that a state of emergency exists in the Commonwealth of Virginia to continue to prepare and coordinate our response to the potential spread of COVID-19, a communicable disease of public health threat" and specifically cited the Governor's authority under Code § 44-146.17. It is likewise clear that "the catastrophic nature of the declared emergency makes it impracticable or unsafe to assemble a quorum in a single location," because avoidance of physical assembly whenever possible is critical to ongoing efforts to contain and manage a virus that is spread through close contact between people.15
The Virginia Department of Health (VDH) has a great deal of information about COVID-19 on its website, including daily updates on the number of cases reported, the number of deaths that have occurred due to COVID-19, and "Prevention Tips" that begin with the following statement as a header in large font: "Do Your Part to Help Stop the Spread of COVID-19 by Staying at Home As Much As Possible."16 The tips go on to recommend several other measures, including maintaining a social distance of at least six feet and wearing masks, but it also includes the following two bullet points:
- We are all safer at home, especially those who are at higher risk of severe illness. As stay at home orders are lifted and businesses are reopening, it is important that we keep ourselves safe as we go back out to start up some of our normal activities. While we can't remove all risk of getting COVID-19, there are things we can do to lessen that risk.
- Remember that if you have COVID-19, have any signs or symptoms, or have been in close contact with someone who has COVID-19, you should stay home and away from other people to prevent spreading illness to others.17
Note that the VDH tips link to the Centers for Disease Control and Prevention (CDC) website, including a list of persons at increased risk for severe illness.18 That list of increased risks first includes older people and people with medical conditions, then includes other factors that may heighten the risk of contracting a severe illness: racial and ethnic minorities, pregnancy and breastfeeding, people with disabilities, developmental and behavioral disorders, drug use and substance use disorders, and people living in rural communities, among other factors.19 Further, I would note that the Governor's Executive Order 51 declaring the state of emergency due to COVID-19 was originally issued March 12, 2020, and was subsequently amended on May 26, 2020, to declare a continuing state of emergency and to "remain in full force and effect until amended or rescinded by further executive order." [Emphasis in original.] To date, Virginia remains in a state of emergency. However, I would also note that the mandatory stay at home order, Executive Order 55, was issued March 30, 2020, and effective until June 10, 2020, and was not amended to continue as were Executive Order 51 and other executive orders related to the COVID-19 state of emergency.
Given all of these factors as background, a "fear" or "concern" that one might contract COVID-19 appears to be a reasonable one with a real basis in fact. Given that the first recommendation from VDH and CDC for prevention of the disease appears to be "stay at home," it also appears to be a reasonable argument that a concern over contracting COVID-19 may act to prevent a member of a public body from physically attending a meeting if he or she chooses to follow the VDH and CDC recommendations. If the member has some particular reason for concern, such as being in one of the heightened risk groups identified by CDC, membership in that risk group may also be seen as a condition that prevents physical attendance. Therefore, under the particular and unique factors involved in the COVID-19 state of emergency, a public body may choose to allow a member to participate by electronic communication means as a disability or medical condition that prevents the member's physical attendance.
However, as a practical matter, FOIA largely leaves it up to each public body to decide what limits it wants to place on participation under both the personal matters and the disability or medical condition provisions by requiring each public body to set its own policy on such participation under subdivision C 1 of § 2.2-3708.2 as quoted previously. The FOIA Council's own policy on electronic participation is to allow it unless it would violate FOIA or the policy itself, and if there is a challenge to a member's participation, to put the matter to a vote.20As I recall, the one time a member of the FOIA Council participated electronically due to a disability or medical condition, he was allowed to participate and no one even asked what was the disability or medical condition. Anecdotally, this appears to be the same for most public bodies; FOIA does not require disclosure of the nature of a disability or medical condition and most public bodies do not ask, so as a result, questions such as you have posed here simply do not arise. That said, other public bodies are free to adopt whatever policies they wish, including the option of not allowing any electronic participation due to a personal matter or due to a disability or medical condition at all, so long as such a policy otherwise complies with subsection C of § 2.2-3708.2. As a practical matter, anecdotally I have been told about some public bodies that have adopted policies to expressly allow members to participate due to concerns over COVID-19 and others that disallow all such participation. Such policies would be allowed so long as they are "applied strictly and uniformly, without exception, to the entire membership and without regard to the identity of the member requesting remote participation or the matters that will be considered or voted on at the meeting" as required by subsection C of § 2.2-3708.2. Therefore, ultimately, it is up to each public body to decide, first, whether it will even seek specific information as to the nature of a disability or medical condition from its members when they wish to use this provision, as FOIA does not require such disclosure, and second, whether the public body will adopt a policy that attempts to restrict participation based on the specific information provided.
Thank you for contacting this office. We hope that this opinion is of assistance.
Sincerely,
Alan Gernhardt
Executive Director
1. Freedom of Information Advisory Opinion 03 (2020) (quoting Cole v. Smyth Co. Bd. of Supervisors, (Va. Record No. 171205, decided May 28, 2020, available at 2020 Va. LEXIS 56) (citation omitted)).
2. Transparent GMU v. George Mason University, 298 Va. 222, 240-241, 835 S.E.2d 544, 553 (Va. 2019) (citation omitted).r."
3. American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 341, 756 S.E.2d 435, 441 (Va. 2014).
4. Op. Atty. Gen. Va. No. 20-011 (available at https://www.oag.state.va.us/files/Opinions/2020/Sullivan-Opinion-Request.pdf) (opinion interpreting subdivision A 3 of § 2.2-3708.2 in light of the COVID-19 state of emergency).
5. Id.
6. Id.
7. n.1, supra.
8. P.L. 104–191. While this office is limited to FOIA matters, note that the U.S. Department of Health and Human Services states on its website "Congress incorporated into HIPAA provisions that mandated the adoption of Federal privacy protections for individually identifiable health information." (https://www.hhs.gov/hipaa/for-professionals/index.html, last accessed October 6, 2020)
9. https://www.merriam-webster.com/dictionary/disability (last accessed October 6, 2020).
10. https://medical-dictionary.thefreedictionary.com/medical+condition (last accessed October 6, 2020).
11. https://www.lawinsider.com/dictionary/medical-condition (last accessed October 6, 2020).
12. https://www.dictionary.com/browse/prevent (last accessed October 6, 2020).
13. https://www.merriam-webster.com/dictionary/prevent (last accessed October 6, 2020) (capitals and italics in original).
14. See, e.g., November 8, 2006, minutes of the meeting of the Electronic Meetings Subcommittee of the FOIA Council (available at http://foiacouncil.dls.virginia.gov/subcom_mtgs/2006/sm110806elecmtg.htm), which considered and recommended the original legislation that has since been re-codified as subdivision A 1 of § 2.2-3708.2 (2007 Acts of Assembly, c. 945 enacting former § 2.2-3708.1), and stated that "we should strive to encourage persons with disabilities to serve on public boards and commissions, and that impediments to such public service should be reduced if not removed."
15. Op. Atty. Gen. Va. 20-011 (internal citations to Executive Order Number Fifty-One (Northam) (2020), § subdivision A 3 of 2.2-3708.2, and guidance documents from the Centers for Disease Control and Prevention and the Virginia Department of Health omitted), n.1, supra.
16. https://www.vdh.virginia.gov/coronavirus/prevention-tips/ (last accessed October 6, 2020).
17. Id. (hyperlinks omitted).
18. https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html(last accessed October 6, 2020).
19. Id.
20. http://foiacouncil.dls.virginia.gov/Participation.pdf (last accessed October 6, 2020).
