William H. Turner v. Virginia Board of Dentistry, Department of Health Professions, et al.

2nd Judicial Circuit
Glen A. Tyler
Accomack County

June 2, 2005

To: Jon C. Poulson, Esq.
Three Cross St.
P.O. Box 478
Accomac VA 23301

Emily O. Wingfield, Esq.
Assistant Attorney General
Office of the Attorney General
900 E. Main St.
Richmond VA 23219

Re: William H. Turner v. Virginia Board of Dentistry, Department of Health Professions, et al.
Accomack Circuit Court
In Chancery No. 04CH196

Dear Mr. Poulson and Ms. Wingfield:

In this Chancery suit the court will decide 1.) whether the Virginia Board of Dentistry has violated the Virginia Freedom of Information Act; 2.) whether the Board has failed to provide complainant all documents he requested, that it has, pertaining to its meeting of February 21, 2002, required to be provided by the Act; 3.) whether the Board should be enjoined by this Court hereafter to record and preserve contemporaneous notes and recordings of minutes of its open meetings; 4.) whether the Board should be enjoined by the Court hereafter not to fail to provide documents according to the Act; 5.) whether the Board should be enjoined by this Court hereafter not to direct or refer requests for documents to its legal counsel; 6.) whether the complainant should be awarded costs herein and attorney fees to be paid by the Board, and 7.) whether any violation of the Act by the Board was willful such as to require the Court to award a civil penalty, according to the law.

The Court finds in the negative, and for the Board, as to questions 2, 3, 4, 5 and 7, and for reasons hereinafter stated finds for the complainant that the Board has not complied with the Act regarding the minutes of the open meeting of the Board of February 21, 2002. In other words, the Court finds merit in complainant's allegations in its bill of complaint in paragraph 11A, but that the law and the evidence do no support complainant's allegations in paragraphs 11B, 11C and 11D.

This case appears at first to be both complex and complicated. However, in its essence this case is about complainant's wish to know what happened as a result of an open meeting of the Virginia Board of Dentistry on February 21, 2002. He wished to know why the Board changed the language of a regulation so as to delete the word "penalty." A citizen is not entitled under the Act to answers to questions, but he is entitled to expect certain documents to be prepared and preserved and provided.

The problem in this case is that sufficiently detailed minutes of the February 21, 2002, meeting of the Virginia Board of Dentistry were not taken and preserved. What is done by the Board at other meetings or all meetings generally is not sufficiently proved in this case for this Court to enjoin the Board to do or not do anything hereafter.

The evidence in this case discloses that the minutes of the February 21, 2002, meeting of the Board were taken either in handwriting or by recording device, or both. However, the original writings and recordings were not preserved. Formalized excerpts were prepared in abbreviated form. Almost six hours were distilled into five typed pages. Discretionary editing was necessarily employed to do so. In some instances what was said was reported; in many instances it was not.

The minutes of a meeting are not only a record of what was done, but also of what was said. Webster's New World College Dictionary, 4th Ed. (c) 2000, IDG Books Worldwide, Inc. Certainly there is no requirement in the Act that a verbatim transcript be prepared. However, regarding the case at bar on the issue at hand the distilled minutes, under the heading "Fee Increases," say only "The Board also discussed proposals to change the provision for renewal and reinstatement fees. . . "

The Act provides for the preparation of public records as follows:

Va. Code Ann. §2.2-3704 (2004 Cum. Supp.)

... all public records shall be open to inspection and copying....The custodian of such records shall take all necessary precautions for their preservation...

Va. Code Ann. §2.2-3707 (2004 Cum. Supp.)

I. Minutes shall be recorded at all open meetings...

Minutes, including draft minutes, and all other records of open meetings...shall be deemed public records and subject to the provisions of this chapter.

Minutes shall include a summary of the discussion on matters proposed, deliberated or decided...

The Board's minutes do not include even a "summary" of the discussion which occurred on the subject of the "penalty" fee on February 21, 2002.

The Court will ask Mr. Poulson to provide the Court a statement of costs in this suit from the Clerk and Court Reporter and an updated statement of his attorney fees for the Court's consideration in making an award on behalf of the complainant. After the Court decides the award of attorney fees, an appropriate order may be prepared.

Very truly yours,

s/ Glen A. Tyler, Judge

NOTE: On June 9, 2005, Poulson submitted a bill for $5,652.92, which included $5,400 for 36 hours of his time at $150/per hour, plus $69 for a filing fee, $4.42 for UPS, $12 for a subpoena, and $167.50 for one-half of the court-reporter's fee.]