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Virginia Supreme Court rules e-mail communications not a 'meeting'

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Virginia Supreme Court rules e-mail communications not a ‘meeting’

  • The high court says e-mail messaging between public officials is not subject to open meeting requirements because it does not constitute immediate comment and response.

March 9, 2004 — The Virginia Supreme Court, in reversing a lower court ruling, unanimously held last week that public officials who engage in e-mail conversations with one another are not participating in a “meeting” and are therefore not held to the requirements of the open meetings law.

The court tackled three areas of open meetings law embodied in the Virginia Freedom of Information Act.

On March 5, it held that an e-mail conversation is not a meeting because it does not involve communication with immediate comment and response. It affirmed that the open meetings law applies only to members of a public body, not members-elect. And it affirmed that a public gathering by several committee members and members-elect does not constitute a “meeting” as defined by the act.

The case originated from a lawsuit filed in circuit court in September 2002 by Gordon Shelton, former vice mayor of Fredericksburg who alleged 18 violations of the state freedom of information act against William Beck, Fredericksburg’s mayor, as well as the current vice mayor and three Councilmen. Seventeen of the counts were thrown out.

Shelton alleged that the council members willfully excluded the public and two other councilmen in reaching a consensus via e-mail about committee assignments, a discussion that should have occurred in a public setting.

The alleged FOIA violators “e-mailed each other in a knowing, willful and deliberate attempt to hold secret meetings, avoid public scrutiny, discuss city business and decide city issues without the input of all the council members and the public,” Shelton claimed.

According to the March 6 Fredericksburg Free Lance-Star, Beck called Shelton’s lawsuit a “political vendetta.” Shelton was a 24-year veteran of the council before he retired.

In reversing the Circuit Court of Fredericksburg, Va., the state’s high court rejected the claim that e-mail communication is necessarily an exchange of ideas that must be conducted publicly. E-mail messages, which may sit in queue for hours and days without a response, are not a meeting, the court held.

However, citing an attorney general’s opinion on the matter, Justice Donald W. Lemons wrote for the majority that e-mail communication with immediate comment and response — such as that within an online chat room or via instant messaging — could be considered a meeting. The court left the door open for e-mail correspondence conducted rapidly over a short time span.

“While we agree with the trial court that ‘[it is] how the e-mail is used’ . . . we disagree that this case presets circumstances constituting a ‘meeting’ for the purposes of FOIA,” the court wrote. “Some electronic communication may constitute a ‘meeting’ and some may not.”

In attempting to get the court to reverse Judge John Scott’s December 2002 ruling on members-elect, Shelton argued that the justices have the authority to broaden the term “members” in the language of the Freedom of Information Act. The court disagreed.

“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,” Lemons wrote.

The court also rejected the argument that a July 2002 gathering — which included two city employees and three City Council members who were invited by citizens concerned about traffic safety — was a “meeting.” In affirming the circuit court, the high court held that the purpose of the gathering was an “informational forum.” Council members did not privately discuss public matters with any one person, the court said.

Quoting Virginia’s Freedom of Information Act, the court wrote that the act “shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.”

(Beck v. Shelton; Counsel: David Kaufman, Brown, Nietert, Fairfax, Va.) AB

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