FOI Advisory Council Opinion AO-22-03

July 21, 2003

Mr. George T. Keller
Clifton Forge, Virginia

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 fax of June 19, 2003.

Dear Mr. Keller:

You have asked questions relating to a resolution adopted by the Board of Supervisors ("the Board") of Allegheny County establishing a public comment period during Board meetings. You indicate that the policy limits public comment to three minutes, and prohibits speakers during the public comment period from asking questions of the Board or its staff and prohibits the Board from questioning the speakers, other than to ask for clarification. In addition, the policy prohibits speakers from making partisan political statements, promoting or attacking religious points of view, or discussing individual public employees. You ask if these prohibitions violate your right to free speech and free exercise of religion under the First Amendment of the United States Constitution or if it violates the policy of the Virginia Freedom of Information Act (FOIA). You also ask if the prohibition against asking direct questions of the Board concerning matters of public record during public comment periods violates § 2.2-3704 of the Code of Virginia, because FOIA allows both verbal and written FOIA requests.

The Virginia Freedom of Information Advisory Council has the authority to furnish advisory opinions regarding the application and interpretation of FOIA, which provides for a statutory right of access to public records and public meetings in Virginia. To the extent that your questions involve interpretation of the federal Constitution, it is outside the scope and authority of this office to offer an opinion.

The policy of FOIA, set forth in subsection B of § 2.2-3700, ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry into meetings of public bodies wherein the business of the people is being conducted 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. (Emphasis added.) FOIA guarantees access to meetings and establishes a series of procedural requirements for governing bodies holding meetings, such as providing proper notice, taking minutes, and making motions to enter into a closed session. While other statutes in the Code of Virginia may require public hearings on particular issues, FOIA itself does not require that public bodies provide for public comment periods at its regular meetings, nor does it set forth procedures for accepting public comment. FOIA guarantees citizens the right to attend meetings and witness the operations of government; it does not guarantee a right to participate in those meetings. Therefore, the resolution adopted by the Board limiting public comment does not violate the policy of FOIA.

You ask if the specific regulation that prohibits speakers from asking questions of the Board or its staff during the public comment period violates FOIA. As you noted in your question, there is no requirement that a FOIA request be in writing. A verbal request for records invokes the procedures and requirements for a public body responding to a request. However, it is important to note that FOIA guarantees access to records, and not to information. FOIA does not give citizens the right to ask questions of government, nor does it require a public body to create a document to respond to such question. Instead, FOIA gives citizens a right to access documents that are already in the possession of a public body. For example, FOIA does not govern a situation where a citizen might ask the Board to explain why it reached a certain decision. However, FOIA would govern a request for records relating to that decision. Therefore, it does not appear that the regulation prohibiting questions of the Board or its staff during public comment violates a citizen's right to make a FOIA request because asking questions of the Board or its staff, whether during a meeting or during regular office hours, is not a right guaranteed by FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director