OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Jim Heilman
FROM: Lisa Kelley
DATE January 13, 2004

Re. FOIA; Gatherings of Council Members

The Virginia Freedom of Information Act ("VFOIA") provides that all meetings of public bodies shall be open, except as provided in Va. Code §2.2-3711 (closed meetings are authorized for certain limited purposes). Va. Code §2.2-3707(A). VFOIA defines the term 'meeting "as follows:

"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.

Va. Code §2.2-3701. Under this definition, no gathering at which fewer than three members of our City Council are present constitutes a "meeting" subject to FOIA requirements, regardless of the purpose of the gathering. A subsequent FOIA provision states as follows:

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. The notice provisions of this chapter shall not apply to informal meetings or gatherings of the members of the General Assembly.

Va. Code §2.2-3707(G). If there is any doubt or question as to whether a particular gathering of Councilors might qualify for one of the exceptions set forth in Va. Code §2.2-3707, the gathering should either be advertised as a public meeting or no more than two Councilors should attend. One of the inherent problems is with the exception allowed by §2.2-3707(G)(i) is that when Council members are gathered at a particular place or function, it may be difficult for them to avoid lapsing into discussions of public business.