BILL BECK, ET AL.
v. Record No. 030723 OPINION BY JUSTICE DONALD W. LEMONS
March 5, 2004
GORDON SHELTON, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
In this appeal, we consider several issues relating to
The Virginia Freedom of Information Act ("FOIA" or the "Act"),
Code 2.2-3700 to -3714, including: 1) whether "members-
elect" are "members" of a public body for the purpose of
application of FOIA; 2) whether the use of electronic mail
("e-mail") for communication between three or more members of
a public body constitutes a "meeting" for the purposes of
FOIA; and, 3) whether a particular gathering of citizens
attended by three members of the Fredericksburg City Council
constituted a "meeting" under the Act.
Facts and Proceedings Below
Gordon Shelton, Anthony Jenkins, and Patrick J. Timpone
(collectively, "Shelton") filed an 18-count petition for writ
of mandamus and injunction against William M. Beck, Mayor of
the City of Fredericksburg; W. Scott Howson III, Vice-Mayor of
the City of Fredericksburg; and three Councilmen, Thomas P.
Fortune, William C. Withers, Jr., and Matthew J. Kelly
(collectively, "Defendants" or "Beck"). While citing multiple
incidents of alleged violations of FOIA, the gravamen of the
complaint was that Defendants "deliberately e-mailed each
other in a knowing, willful and deliberate attempt to hold
secret meetings, avoid public scrutiny" and "discuss City
business and decide City issues without the input of all the
council members and the public." Shelton asserted that various
exchanges of e-mail, face-to-face meetings, and one public
gathering on the streets of Fredericksburg constituted
"meetings" under FOIA for which there was no notice pursuant
to Code 2.2-3707 and no emergency or other exception which
would relieve the Defendants from the obligations imposed upon
them concerning public meetings.
Defendants prevailed on demurrers or at trial on fourteen
of the eighteen counts and Shelton voluntarily dismissed three
other counts before trial. The trial court held that the Act
did not apply to conduct of members-elect of the
Fredericksburg City Council, that certain e-mail
communications did constitute a "meeting" as defined in FOIA,
and that a particular gathering of citizens and council
members, the Charlotte Street gathering, was not a "meeting"
under the Act. While holding that Defendants violated the
open meeting provisions of FOIA, the trial court found that
the violations were not "willful or knowing," declined to
impose any penalty, and declined Shelton's motion for
attorney's fees. The final order was silent regarding
Shelton's request for a writ of mandamus or injunctive relief.
Beck appeals the adverse judgment of the trial court and
Shelton assigns cross-error.
Application of FOIA to "Members-elect"
In Counts I - IX of his petition, Shelton alleged various
violations of FOIA by face-to-face meetings and e-mail
communications between Mayor Beck, Vice Mayor Howson, and then
council members-elect Kelly, Fortune, and Withers. Kelly,
Fortune, and Withers did not become council members until they
took their respective oaths of office and began their
respective terms on July 1, 2002. Under the facts of this
case, pursuant to Code 2.2-3701, an informal assemblage of
three members may trigger the application of the open meeting
requirements of FOIA. In these counts, Shelton alleges
"meetings" between two members of council and three members-
elect. Defendants demurred to Counts I - IX, asserting that
as a matter of law the application of FOIA does not extend to
members-elect of a public body. If FOIA does not apply to
members-elect, then only two members are alleged to have met
and the threshold requirement of an assemblage of three
members was not met. The trial court agreed and sustained the
demurrers.
In support of his assignment of cross-error, Shelton
argues that the definition of "public body" specifically
contemplates that "private sector or citizen members" may be
included as a part of a public body, that members-elect have a
"statutory obligation to become familiar with the requirements
of the Act," and that the provisions of FOIA are to be
"liberally construed." For these reasons, Shelton maintains
that the provisions of FOIA are applicable to conduct of a
member-elect as if she were a member of the public body.
Under Code 2.2-3701, the definition of "public body" is
extended to
(ii) any committee, subcommittee, or other entity
however designated, of the public body created to
perform delegated functions of the public body or
to advise the public body. It shall not exclude
any such committee, subcommittee or entity
because it has private sector or citizen members.
This provision simply includes committees, subcommittees, or
entities within the types of public bodies covered by FOIA,
irrespective of participation by private sector or citizen
members. It does not expand the meaning of "members" in the
definition of "meetings" also contained in Code 2.2-3701.
Furthermore, the City Council does not have private sector or
citizen members and did not use a committee or subcommittee
structure. The full body or a quorum of the City Council
cannot logically be presumed to be a committee or subcommittee
of itself.
Additionally, it is true that members-elect are to
familiarize themselves with the provisions of FOIA after they
are elected and before they take office.
Any person elected, reelected, appointed or
reappointed to any body not excepted from this
chapter shall (i) be furnished by the public
body's administrator or legal counsel with a copy
of this chapter within two weeks following
election, reelection, appointment or
reappointment and (ii) read and become familiar
with the provisions of this chapter.
Code 2.2-3702. However, nothing in this statutory provision
alters the application of FOIA or modifies the meaning of
"members" in Code 2.2-3701.
Finally, Shelton argues that the statutory admonition of
"liberal construction" found in the policy statement of Code
2.2-3700(B) justifies extending the term "members" in Code
2.2-3701 to include "members-elect." We do not believe that
the legislature was inviting the judiciary, under the guise of
"liberal construction," to rewrite the provisions of FOIA as
we deem proper or advisable. To the contrary,
[w]hen the language of a statute is plain and
unambiguous, we are bound by the plain meaning of
that statutory language. Thus, when the General
Assembly has used words that have a plain
meaning, courts cannot give those words a
construction that amounts to holding that the
General Assembly meant something other than that
which it actually expressed.
Lee County v. Town of St. Charles, 264 Va. 344, 348, 568
S.E.2d 680, 682 (2002) (citations omitted).
We will not rewrite Code 2.2-3701 to change the word
"members" to the phrase "members or members-elect." It is not
our prerogative. If the legislature chooses to do so, it is
properly within its power to do so. The trial court did not
err in holding that the open meeting provisions of FOIA did
not apply to meetings of members of a public body that reach
the required threshold of participants under Code 2.2-3701
only by inclusion of members-elect.
E-mail Communications
It is not disputed that on several occasions after July
1, 2002, more than three members of City Council corresponded
with each other concerning specific items of public business
by use of e-mail. It would serve no useful purpose to relate
the particular subjects of the communications because the
issue before us involves the method of communication.
Succinctly stated, assuming all other statutory requirements
are met, does the exchange of e-mails between members of a
public body constitute a "meeting" subject to the provisions
of FOIA? Beck assigns error to the trial court's holding that
it does.
Indisputably, the use of computers for textual
communication has become commonplace around the world. It can
involve communication that is functionally similar to a letter
sent by ordinary mail, courier, or facsimile transmission. In
this respect, there may be significant delay before the
communication is received and additional delay in response.
However, computers can be utilized to exchange text in the
nature of a discussion, potentially involving multiple
participants, in what are euphemistically called "chat rooms"
or by "instant messaging." In these forms, computer generated
communication is virtually simultaneous.
In the case before us, the e-mail communications did not
involve virtually simultaneous interaction. Rather, the e-
mail communications at issue in this case were more like
traditional letters sent by ordinary mail, courier, or
facsimile. The record contains printed copies of the e-mails
in question. The shortest interval between sending a
particular e-mail and receiving a response was more than four
hours. The longest interval was well over two days.
The trial court held that such use of e-mail constituted
a "meeting" pursuant to Code 2.2-3702 and that Defendants
held such meetings in private, without notice to the public
and without opportunity for the public to attend in violation
of the open meeting requirements of Code 2.2-3707. The
trial court held that the issue was not the electronic nature
of the transmission; rather, "It is how the e-mail is used."
While we agree with the trial court that "how the e-mail is
used" is the dispositive consideration, we disagree that this
case presents circumstances constituting a "meeting" for the
purposes of FOIA.
FOIA deals with public access to records and meetings of
public bodies. There is no question that e-mails fall within
the definition of public records under Code 2.2-3701. As
previously stated, the issue in this case is whether the
exchange of e-mail also constitutes a "meeting" under FOIA.
Code 2.2-3708 provides that
[i]t shall be a violation of this chapter for any
political subdivision or any governing body . . .
to conduct a meeting wherein the public business
is discussed or transacted through telephonic,
video, electronic or other communication means
where the members are not physically assembled.
By definition, a violation under 2.2-3708 presumes a
"meeting" as defined in FOIA. Code 2.2-3701 provides in
part:
"Meeting" or "meetings" means the meetings
including work sessions, when sitting physically,
or through telephonic or video equipment pursuant
to 2.2-3708, 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
gathering of employees of a public body shall not
be deemed a "meeting" subject to the provisions
of this chapter.
Clearly, the conduct in question did not involve "sitting
physically" in a "work session." Consequently, the key to
resolving the question before us is whether there was an
"assemblage." The term "assemble" means "to bring together"
and comes from the Latin simul, meaning "together, at the same
time." Webster's Third New International Dictionary 131
(1993). The term inherently entails the quality of
simultaneity. While such simultaneity may be present when e-
mail technology is used in a "chat room" or as "instant
messaging," it is not present when e-mail is used as the
functional equivalent of letter communication by ordinary
mail, courier, or facsimile transmission. The General
Assembly anticipated this type of communication when it
provided:
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, provided the contact is done on a
basis that does not constitute a meeting as
defined in this chapter . . .
Code 2.2-3710(B). Under the terms of this provision, it is
anticipated that some electronic communication may constitute
a "meeting" and some may not. As previously stated, the key
difference between permitted use of electronic communication,
such as e-mail, outside the notice and open meeting
requirements of FOIA, and those that constitute a "meeting"
under FOIA, is the feature of simultaneity inherent in the
term "assemblage."
The Attorney General of Virginia has had occasion to
render an opinion on this subject. 1999 Op. Atty. Gen. 12.
The question presented to the Attorney General was "whether
2.1-343.1(A), a portion of The Virginia Freedom of
Information Act, 2.1-340 through 2.1-346.1 of the Code of
Virginia, prohibits an elected member of a local governing
body from sending electronic mail communications to three or
more other members of the governing body." Id. The Attorney
General did not consider the dynamics presented in "chat
rooms" or "instant messaging," but did consider the precise
use of e-mail at issue in this case. For the purposes of the
Opinion, the Attorney General used the following definition:
Electronic mail is commonly understood to be the
electronic transmission of keyboard-entered
correspondence over communication networks. An
electronic mail system enables the sender to
compose and transmit a message to a recipient's
electronic mailbox, where the message is stored
until the recipient retrieves it. The message
may be sent to several recipients at the same
time.
Id. at 13. Concluding that "[t]ransmitting messages through
an electronic mail system is essentially a form of written
communication," the Attorney General opined that such
communication does not constitute a "meeting" under FOIA. Id.
While it is not binding on this Court, an Opinion of the
Attorney General is "entitled to due consideration."
Twietmeyer v. City of Hampton, 255 Va. 387, 393, 497 S.E.2d
858, 861 (1998). This is particularly so when the General
Assembly has known of the Attorney General's Opinion, in this
case for five years, and has done nothing to change it. "The
legislature is presumed to have had knowledge of the Attorney
General's interpretation of the statutes, and its failure to
make corrective amendments evinces legislative acquiescence in
the Attorney General's view." Browning-Ferris, Inc. v.
Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06
(1983).
We hold that the trial court erred in its determination
that the e-mail communications at issue in this case
constituted a "meeting" under FOIA. Count XI of Shelton's
petition must fail because it is premised upon e-mail
communications constituting a meeting under FOIA.
E-mails Concerning Historic Preservation
In Count XIV of Shelton's petition, it is alleged that a
"meeting" took place by e-mail communication between at least
three members of City Council. The trial court granted
summary judgment to Defendants, holding that the alleged
meeting was for information purposes only and was not for the
purpose of discussing public business. Shelton assigns cross-
error to the trial court's holding. Shelton argues that the
trial court too narrowly construed what it means to "discuss"
the public's business. It is unnecessary to address this
assignment of cross-error because we have held that the e-mail
communications at issue in this case do not constitute a
"meeting" under FOIA.
The Charlotte Street Gathering
In July 2002, citizens living near the intersection of
Charlotte and Weedon Streets in the City of Fredericksburg
were concerned about the lack of a stop sign at the
intersection and other issues related to traffic safety. Two
city employees and three members of City Council were
separately invited by concerned citizens to attend a gathering
at the intersection in the middle of the day on July 25, 2002.
Approximately 20 people were in attendance. After hearing
testimony and the arguments of counsel, the trial court found
as a matter of fact that the gathering was
scheduled as a consequence of citizen inquiry;
that the meeting's purpose, in essence, was an
informational forum in reference to traffic
issues in a given neighborhood or on a specific
street; that the three members of Council who
appeared did not, according to the testimony
which is uncontradicted, . . . discuss anything
with each other as a group of three or otherwise.
On appeal, Shelton maintains that such a gathering was a
"meeting" under the terms of FOIA. We disagree. The public
policy of the Commonwealth "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 to
meetings of public bodies wherein the business of the people
is being conducted." Code 2.2-3700(B). But FOIA "shall not
be construed to discourage the free discussion by government
officials or employees of public matters with the citizens of
the Commonwealth." Id. Obviously, the balance between these
values must be considered on a case-by-case basis according
the facts presented. Here, FOIA gives additional guidance:
Nothing in this chapter shall be construed to
prohibit the gathering or attendance of two or
more members of a public body (i) at any place or
function where no part of the purpose of such
gathering or attendance is the discussion or
transaction of any public business, and such
gathering or attendance was not called or
prearranged with any purpose of discussing or
transacting any business of the public body or
(ii) at a public forum, candidate appearance, or
debate, the purpose of which is to inform the
electorate and not to transact public business or
to hold discussions relating to the transaction
of public business, even though the performance
of the members individually or collectively in
the conduct of public business may be a topic of
discussion or debate at such public meeting.
Code 2.2-3707(G).
The trial court was not plainly wrong or without evidence
to support its judgment that the Charlotte Street gathering
was a citizen-organized "informational forum" and that no part
of the purpose of the gathering or attendance was the
discussion or transaction of any public business. The
undisputed evidence at trial was that City Council did not
have any business pending before it on the issue of traffic
controls, nor was it likely to have such matters come before
it in the future. The trial court did not err in granting
summary judgment to Defendants on Count XVII.
Conclusion
The trial court did not err in granting summary judgment
for Defendants on Counts I - IX of Shelton's petition. These
counts were premised upon FOIA being applicable to members-
elect of a public body. Members-elect are not "members" under
the plain language of Code 2.2-3701. Count XI of Shelton's
petition is premised upon e-mail communications constituting a
"meeting" under FOIA. Under the facts of this case, such e-
mail communications did not constitute a "meeting" under FOIA,
and the trial court erred in holding that they did. The trial
court granted Defendants' motion for summary judgment on Count
XIV on the basis that the e-mails were for informational
purposes and did not constitute a meeting. We need not
address this reason for the trial court's holding because we
have already concluded that e-mail communications in this case
did not constitute a "meeting" under FOIA. Finally, the trial
court did not err in holding that the Charlotte Street
gathering was not a "meeting" under FOIA. We will affirm the
trial court's judgment with respect to Counts I-IX and XVII.
We will affirm the trial court's judgment with respect to
Count XIV, albeit for different reasons. We will reverse the
trial court's judgment with respect to Count XI. Having
disposed of all matters, and nothing remaining for the trial
court to consider, we will enter final judgment for
Defendants.
Affirmed in part,
reversed in part,
and final judgment.
Fortune and Withers are not appellants herein.
Only Counts I-IX, XI, XIV, and XVII are specifically
before us on appeal.
The definition of "meeting" in Code 2.2-3701 would
apply to a quorum, if less than three. Four members represent
a quorum of the City Council; consequently, under the
circumstances of this case, a meeting of at least three
members is required before FOIA open meeting requirements are
implicated.
Shelton raises for the first time on appeal that a vote
was taken by e-mail. Nothing in the record supports such an
allegation and furthermore it is barred from consideration
under Rule 5:25.
This issue is not before us and we do not decide it
today.
The question was premised upon FOIA prior to its
recodification in Title 2.2 of the Code of Virginia. The
language involved is substantially the same in the
recodification. See Code 2.1-340 to -346.1 (1968).
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