Another pro-FOIA ruling

A quick-hit recap of the Virginia Supreme Court's most recent ruling on FOIA

The Virginia Supreme Court ruled today that the five Prince William County supervisors who met with police and community members in the aftermath of the George Floyd murder and protests should have followed FOIA because the discussion was "public business."

In a 5-2 decision, the majority confirms the definition it put forth more than 20 years ago in Beck v. Shelton to say that "'public business' in Code § 2.2-3701 means business that is on a public body’s agenda or is likely to come before the public body in the foreseeable future."

The dissent says this is a new definition, which the majority disputes by adding, "It matters not whether the topics are raised by a member of the body, another governmental employee, or a member of the community. As a deliberative body, part of the legislative body’s business at every formal meeting is to hear from the community and employees and consider those concerns.”

The majority also looks at the "public forum" exception to FOIA's meeting requirements and finds the meeting here didn't fall within it because it went beyond informing the electorate and into action by board members.

The court adds this line: "The 'public forum' exception to the definition of 'meeting' in Code § 2.2-3701 is designed to further the laudable purposes of VFOIA, not inhibit them."

The dissent frames its opinion by referring to this part of FOIA's policy statement: "VFOIA requires that it be construed to allow free discussion between government officials and citizens regarding matters of public interest." The dissent would have concluded that mere “topics” are not public business.

The majority, however, focuses on the part of the policy that says provisions: “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.” That “‘puts the interpretative thumb on the scale in favor of’ open government,” the court writes.

The majority also had this lengthy response in a footnote to the dissent’s interpretation of “public business.”

Add this opinion to the string of pro-access opinions recently and you’ll see the judicial attitude towards FOIA has shifted some, at least when it comes to the operations of local governments and governing bodies, and more specifically when it comes to meetings.

The same hasn’t filtered down to the general district level, though, like the ruling I heard about yesterday in Pulaski County where a town didn’t post notice of meetings for two years, didn’t have a FOIA page on their website, and didn’t provide the requested records for 58 days, but there was no violation because they eventually did do all these things (after the citizen filed suit) and they needed to be cut some slack because the town is so small. 🤷🏼‍♀️