What is the definition of “public business” for Virginia’s Freedom of Information Act (VFOIA)?0
May 24, 2023 by Tom Roberts, Esq.
The Virginia Supreme Court answered this question in May of 2023 against allegations that five democratic members of the Prince William County Board of Supervisors knowingly and willfully violated the Virginia Freedom of Information Act (“VFOIA”) by attending a meeting as defined by VFOIA without complying with statutory requirements, all related to George Floyd protests in the county on May 30, 2020. On Sunday May 31, 2020, the Chairman of the Board of Supervisors met with the chief of police and the deputy chief of police and confirmed with police officials that chemical agents had been used to disperse the riots. She expressed her opinion to the police officials that “we could do better and that the Virginia State Police the night before, you know, seemed a little aggressive.” At the conclusion of her discussions with police officials, Chairman Wheeler walked directly to a 1:00 p.m. gathering at police headquarters coordinated and orchestrated by Prince William County Police Chief Barry Barnard, meeting with Deputy Chief Jarad Phelps, and supervisor Andrea O. Bailey’s husband Reverend Cozy Bailey, who then served as Chair of the police department’s Citizens’ Advisory Board and also as the head of the local NAACP Chapter, excluding republican members of the Prince William County Board of Supervisors and the public from the closed and secret meeting. Gloss v Wheeler.
Virginia Freedom of Information Act VFOIA
VFOIA requires that “[a]ll meetings of public bodies shall be open[,]” Code § 2.2-3707(A), raising the questions of what constitutes both a “public body” and a “meeting.” VFOIA’s definitions section provides the answers. Code § 2.2-3701 defines “public body” to encompass, among other things, “governing bodies of counties[,]” making such governing bodies subject to the open meeting provisions of VFOIA. In turn, VFOIA defines “meeting” to include 16 work sessions . . . 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. Id. Having defined “meeting” in broad terms, VFOIA then creates exceptions to that definition. Specifically, [n]either 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. Id. If a gathering falls within VFOIA’s definition of a “meeting[,]” it is then subject to the open meeting requirements of Code § 2.2-3707. Among other things, the statute requires that public meetings be publicly noticed, Code § 2.2-3707(C)-(D), that any public body having a meeting provide the public with the agenda and related materials, Code § 2.2-3707(F), and that written minutes of the meeting be taken. Code § 2.2-3707(H).
The meaning of the undefined “public business” in Code § 2.2-3701 is business that is on a public body’s agenda or is likely to come before the public body in the foreseeable future.
For a topic to constitute public business it must not just be something that conceptually could at some point come before a public body, but rather, the topic must be something that is either before the public body or is likely to come before the body in the foreseeable future. Beck v. Shelton, 267 Va. 482, 494 (2004). In Beck, the court stated that a protest related to traffic controls at a particular street corner “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” because “[t]he 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.” Id. Embracing this language and reasoning from Beck, the court made clear that a topic is “public business” for the purpose of 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.” Beck, 267 Va. at 494
Not Covered by the Exception
The first exception to VFOIA’s definition of meeting appears in subpart (a) of the definition of meeting, which provides that “[n]either the gathering of employees of a public body” nor the “gathering or attendance of two or more members of a public body” shall be considered a “meeting” if “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[.]” Code § 2.2-3701
Supreme Court Rejected Defendant's Argument
The court rejected defendant’s argument that for a matter to constitute “public business,” it must appear on the public body’s formal agenda, which would It would allow portions of or full boards of supervisors to meet, discuss, and decide county business in secrecy by waiting until after their private discussions and decisions to place an item on a formal agenda.
Plain and Ordinary Meaning
Because VFOIA does not include a definition of the phrase “public business,” the court applied its “plain and ordinary meaning” and was “guided by the context in which [the . . . phrase] is used.” Protestant Episcopal Church v. Truro Church, 280 Va. 6, 21 (2010) (internal quotation marks and citations omitted). Given the requirement that all VFOIA exceptions be construed narrowly, Code § 2.2-3700, and VFOIA’s heavy “interpretative thumb on the scale in favor of” open and transparent government, Fitzgerald, 289 Va. at 505, the Virginia Supreme Court determined it must give the phrase “public business” a broad reading.
The case was returned to the Circuit Court of Prince William County after it was improperly dismissed on the allegations that the five democratic supervisors Ann B. Wheeler, Andrea O. Bailey, Kenny Boddye, Victor S. Angry, and Margaret Angela Franklin, knowingly and willfully violated the Virginia Freedom of Information Act (“VFOIA”) by attending a meeting as defined by VFOIA without complying with statutory requirements.
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Andrew Bodoh is a senior partner in the Richmond, Virginia office of Thomas H. Roberts & Associates, P.C., a litigation law firm with extensive experience in civil rights, FOIA, 1st Amendment, 4th Amendment and personal injury.
Mr. Bodoh is the author of The Virginian’s Guide to FOIA.
In The Virginian’s Guide to FOIA, Bodoh provides secrets to using the FOIA effectively. Written in an easy-to-read Q&A format, the Guide discusses everything from accessing public records, to attending public meetings, to enforcing your FOIA rights in the courts.
Mr. Bodoh is an experienced litigator under FOIA, representing clients trying to secure access to government records and government meetings.
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Category Civil Rights, FOIA, General | Tags: Andrew Bodoh, FOIA, FOIA Violation, Prince William County, Prince William County FOIA, Prince William County FOIA Violations, VFOIA, VFOIA Violations, virginia foia, Virginia's Freedom of Information Act
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