In May of 2023, the Supreme Court of Virginia ruled on a Freedom of Information Act (FOIA) case, and in so doing, established a bright line which will likely have a significant impact on public entities and “public meetings”. The matter of B. Alan Gloss, Et Al. v. Ann B. Wheeler, Et Al. (Record No. 210779) established a more expansive definition of what constitutes a public meeting of government officials.[1]
Facts and Background
The underlying facts revolve around an impromptu meeting of the Prince William Board of Supervisors in May 2020 in which members discussed local unrest in the wake of the George Floyd killing. Several residents of the County filed a “Petition for Mandamus and Injunction” in Prince William Circuit Court alleging that five members of the Board of Supervisors knowingly and willfully violated Virginia FOIA (VFOIA) by attending a meeting as defined by VFOIA without complying with statutory requirements of the act.
On May 25, 2020, George Floyd was killed in police custody in Minneapolis, Minnesota. His death ignited nationwide protests including a protest in Prince William County on May 30, 2020. The protest began peacefully, but subsequently turned violent. An “unlawful assembly” was declared at approximately 8:00 p.m., but the group of protestors continued to grow in number. Events escalated and included acts of vandalism and violence. County officials began characterizing the events as “riots”. At approximately 10:00 p.m., police officials sent an email to members of the Board of Supervisors providing information about the unrest. Board members were advised that police were attempting to regain order, and portions of roads within the county remained closed. Police also sent an alert to residents of affected areas. Eventually, the State Police dispersed the gathering using chemical agents.
As a result, multiple gatherings of county officials took place the next day. Three of these gatherings were central to the facts underpinning this litigation. At 12:30 p.m. the Board Chairman met with police officials to discuss the situation. At 1:00 p.m., five members of the Board attended a gathering arranged by police officials and members of the police Citizens’ Advisory Board (which was also attended by 60 members of the community). At 4:00 p.m., all 8 members of the Board attended a properly noticed, emergency public meeting.
The 1:00 p.m. meeting was at the center of the controversy. In that gathering, a majority of the board was present (5 out of 8 members), and the police chief gave a presentation which he would subsequently give again at the 4:00 p.m. meeting. Of note, the three board members not in attendance were not invited to the 1:00 p.m. meeting. The plaintiffs argue that the 1:00 p.m. gathering should have been treated as an official public meeting, triggering VFOIA’s rules about notice to the public and access for any citizen that wanted to attend. Defendants insisted the gathering was not a public meeting.
The matter proceeded to trial, and the Circuit Court granted defendants’ motion to strike at the conclusion of plaintiffs’ evidence. The Court concluded that the gathering did not constitute a meeting pursuant to VFOIA. The citizen plaintiffs appealed, and the matter was taken up by the Supreme Court of Virginia.
Legal Discussion
The express purpose of VFOIA is to “ensure the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted.” VFOIA guarantees access because government affairs are not intended to be conducted in secret because the public is always the beneficiary of any action taken at every level of the government.
VFOIA requires that all meetings of public bodies be open. Public bodies include “governing bodies of counties”. “Meetings” include work sessions as a body or entity, or an informal assembly of as many as three members or a quorum, wherever held, with or without minutes, with or without votes of any public body. If a gathering falls within the definition of a “meeting”, then it is subject to open meeting requirements including public notice and provision of the agenda and related materials. Additionally, minutes must be taken.
The General Assembly has adopted a specific rule that VFOIA “shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government” and “any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt” pursuant to VFOIA or specific provision of law. The Supreme Court previously acknowledged that this VFOIA rule of construction “puts the interpretive thumb on the scale in favor of open government”. Fitzgerald v. Loudoun Cnty. Sheriff;s Off., 289 Va. 499, 505 (2015).
Based on the foregoing, defendants did not contest that the Board was a “public body” or that the 1:00 p.m. meeting did not comply with open meeting requirements. Rather, the defendants argued solely that evidence was insufficient to allow a rational fact finder to conclude that the 1:00 p.m. meeting was in fact a “meeting” pursuant to the provisions of VFOIA.
Based on this framework the Supreme Court needed to determine whether the gathering fell within one of the two exceptions to “meetings” found in Sec. 2.2-3703 of VFOIA. Those exceptions are defined as follows:
“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.”
In viewing the evidence in the light most favorable to the plaintiffs, the 1:00 meeting in question fell within neither exception. The Court found that in utilizing the proper definition of “public business” part of the purpose of the 1:00 p.m. gathering was discussion of public business.
Specifically, one of the responsibilities of government is to protect the lives, safety, and property of its citizens. Police response, after action reports, and how police should respond in the future were matters of public business that were all but certain to come before the Board members at that meeting. The Court also noted that not only was public business discussed, but there was also evidence that business of the Board may have been transacted inasmuch as certain Board members requested that certain items be included in police after action report(s). A reasonable factfinder could therefore conclude that public business of the board was not only discussed at the 1:00 p.m. meeting, but also transacted. In accordance with these findings, the Court reversed the decision of the Circuit Court and remanded it for further proceedings consistent with its ruling.
Of note, there was a dissenting opinion by Justices Goodwyn and Powell which warned an overly broad definition of public business would constrain free flow of information between elected officials and communities they serve. The dissenting justices saw an important distinction between “information gathering” and “official action” by public bodies, a line they felt the majority opinion would blur. The dissent states, “[t]he new definition discourages citizen-organized informational gatherings by requiring the application of VFOIA notice requirements, even if the purpose of the meeting is purely informational.”
Practical Implications for Public Entities
This case makes clear that the Virginia Supreme Court has and will interpret the provisions of VFOIA broadly in favor of the public and in favor of transparency. As such, public entities like Boards of Supervisors should be aware that gatherings in which several members will be present may fall within the confines of VFOIA. Therefore, prudence would dictate strict compliance with VFOIA even in situations where it is questionable that public business is being conducted and/or that a gathering (whether informal or not) may fall within the ambit of the act.
A well-considered checklist should be implemented such that members of public entities can do quick and effective assessment as to whether meetings/gatherings/actions that may be conducted will fall within the provisions of FOIA such that they can act swiftly and accordingly. The experienced lawyers of KPM spend great time and effort to stay aware of pertinent cases in the realm of Public Risk Management, and we can be counted on to be experts in cases involving public entities, local governments, public schools, parks, and public recreation areas. You can trust KPM to be knowledgeable in the field of public risk management and continue to keep you updated on cases and authorities that will significantly impact our clients. Please don’t hesitate to reach out to us with questions, concerns, or for assistance.
[1] https://www.vacourts.gov/opinions/opnscvwp/1210779.pdf