States have split on whether multiple e-mail messages between public officials qualify as a public meeting. The designation of an e-mail chain as a public meeting relies on the theory that e-mail and other similar communications can be so instantaneous that they might allow officials to conduct government business in place of convening at a live, in-person meeting.
Arizona law says that, for purposes of its public meetings laws, meetings can take place “in person or through technological devices.” A Delaware attorney general opinion, responding to a complaint about a local nominating committee’s practices, found that “serial e-mails” allowed committee members to “receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take. … [The office] believe[s] that under FOIA this can amount to a meeting of the public body, and that the open meeting law does not only apply to a physical gathering in a single place and time.”
Missouri’s access laws were expanded in 2004 to define a public meeting as any meeting at which any piece of public business is discussed, formulated or decided, and which is attended by a majority of the body’s members. The new laws specifically mention online chat rooms and message boards as locations where public meetings may take place.
Virginia, however, has taken the opposite position in saying that, under its open meetings law, a meeting cannot be held by e-mail, because there is no physical “assemblage” of people.
The split among states on this issue seems to stem from differing constructions of sunshine laws’ gathering and assemblage requirements. Electronic communications like e-mail present public officials the chance to do substantial government business like that which occurs in meetings without ever really “meeting;” but on the other hand, most public-meetings statutes require that there be some kind of physical “gathering” or “assemblage.”