The Virginia Freedom of Information Act (“VFOIA”) requires that “[a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711.” Va. Code § 2.2-3707(A). The statute requires that public meetings be publicly noticed (Va. Code § 2.2-3707(C)-(D)); that any public body having a meeting provide the public with the agenda and related materials (Va. Code § 2.2-3707(F)); and that written minutes of the meeting be taken (Va. Code § 2.2-3707(H)).
According to VFOIA, “’[m]eeting’ or “meetings” means the meetings including work sessions, when sitting physically, or through electronic communication means pursuant to § 2.2-3708.2 or 2.2-3708.3, 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.” Va. Code § 2.2-3701.
VFOIA creates exceptions to this definition, stating: “Neither the gathering of employees of a public body nor the gathering or attendance of two or more members of a public body (a) 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 (b) 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, shall be deemed a “meeting” subject to the provisions of this chapter.” Va. Code § 2.2-3701.
In a recent decision, the Supreme Court of Virginia supported both a broader interpretation of meetings in the context of VFOIA and a narrow reading of the exceptions to VFOIA’s definition of meeting.
In reaction to the May 30, 2020 George Floyd-related protests in Prince William County, Board members attended a 1:00 p.m. police Citizens Advisory Board (“CAB”) meeting (the Board is the policy-determining body of the county). The plaintiffs (county residents) claimed the CAB meeting violated VFOIA. The defendants contended that the evidence was insufficient to allow a rational factfinder to conclude that the CAB meeting was a “meeting” as defined in Va. Code § 2.2-3701 (VFOIA). The Circuit Court of Prince William County granted the defendants’ motion to strike made at the conclusion of the plaintiffs’ evidence, concluding that the CAB meeting did not constitute a meeting under VFOIA. The plaintiffs appealed. The Supreme Court of Virginia concluded that the circuit court erred in granting the motion to strike, reversed the judgment, and remanded the matter to the lower court.
First, the opinion notes that there is no dispute that the Board is a public body as defined in VFOIA; that both it and its members are subject to the open meeting requirements of VFOIA; that more than three members of the Board attended the CAB meeting; that the CAB meeting also was attended by community leaders and county employees; and that the events of May 30, 2020, and the county’s response to those events were what was intended to be and what was, in fact, discussed at the CAB meeting.
Second, assessing the CAB meeting in the context of the first exception to VFOIA’s definition of meeting, the opinion states that because VFOIA does not include a definition of the phrase “public business,” “we seek to apply its plain and ordinary meaning and are guided by the context in which the phrase is used” (brackets and quotations omitted); that a topic is “public business” for the purpose of Va. Code § 2.2-3701 if it is either pending before the public body at the time or it is likely to come before it in the future; that “public business” in Va. Code § 2.2-3701 means business that is on a public body’s agenda or is likely to come before the public body in the foreseeable future; and that it is clear under the express terms of VFOIA that the business of a local, legislative body encompasses the contemplation of topics that come before it or soon will. The Court stated that if the purpose of the CAB meeting was the discussion of public business or if the meeting was called or prearranged with the purpose of a discussion of public business of the Board, then it does not fit within the first exception and concluded that there was more than sufficient evidence to support the conclusion that the CAB meeting fell outside the first exception to the definition of a meeting in Va. Code § 2.2-3701.
Third, assessing whether the CAB meeting falls within the “public forum” exception to the definition of meeting in Va. Code § 2.2-3701, the opinion states that the “public forum” exception is designed to further the laudable purposes of VFOIA, not inhibit them; that the ultimate purpose of VFOIA is to require government transparency for the purpose of allowing an informed citizenry; that a purely informational meeting, that does not involve discussions relating to the transaction of public business (as stated in Va. Code § 2.2-3701), does not constitute a meeting under VFOIA; that (as with all VFOIA exceptions to the general rule of open government) the “public forum” exception to the definition of meeting is a narrow one; that determinations regarding when a gathering has evolved to advance an impermissible purpose such as a discussion relating to the transaction of public business are inherently factual, and because of the fact-specific nature of the analysis, the Court is unable to provide bright lines to guide lower courts in making this determination—save one: VFOIA’s expressly stated presumption in favor of open government; and that in truly doubtful cases, the “public forum” exception does not apply, and the gathering is a meeting subject to Va. Code § 2.2-3707. Applying the statutory language and this standard the Court found that the evidence adduced by the plaintiffs provided more than a sufficient basis for a rational factfinder to conclude that the CAB meeting involved a discussion relating to the transaction of public business, and viewing the evidence in the light most favorable to the plaintiffs, the CAB meeting fell outside the second exception to the definition of a meeting in Va. Code § 2.2-3701.
The case is Gloss, et al. v. Wheeler, et al., Record No. 210779; May 18, 2023 (Russell; Goodwyn, dissenting, joined by Powell).
