Post #480: Virginia Freedom of Information Act and Noah’s Ark

Posted on December 8, 2019

Above:  Abstract depiction of Town Council meeting.  (Note:  Illustration of town officials as unclean animals is unintentional, and unavoidable given popular misunderstanding of Genesis 7:2)

The Virginia Freedom of Information Act

The Virginia Freedom of Information Act (VFOIA) is your only defense against local or state government entities that want to act in secret, behind closed doors, and away from the sunshine.  It’s the only real way to keep governments in Virginia from treating the peasants citizens like mushrooms — you know, keep us in the dark and feed us a bunch of manure.

Even if you never read the entire VFOIA, it’s well worth reading the first two paragraphs.  I’m going to boldface a few key phrases, from the link cited just above:

B. By enacting this chapter, the General Assembly ensures 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. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

The provisions of this chapter 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. 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 this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

Here’s a couple of additional key points, again from the reference above:

What is a meeting?  It’s when three or more of our elected or appointed officials get together, in any setting, and discuss the public business.

"Meeting" or "meetings" means the meetings ... of (i) as many as three members ... of any public body.

There are numerous common-sense exceptions to the rule that meetings must be open.  For example, when the Town Council is considering buying real estate, or considering personnel matters, it may conduct its discussion behind closed doors.  Otherwise, if three or more gather to do the public’s business, that has to be done in public.

And, as I noted in Post #457, anything that Town Council gets to see, as part of a meeting, the public gets to see as well.


F. At least one copy of the proposed agenda and all agenda packets and, unless exempt, all materials furnished to members of a public body for a meeting shall be made available for public inspection at the same time such documents are furnished to the members of the public body.  ... 

The Town hasn’t been too good about doing that.  For example, of late, they’ve taken to not providing copies of Town staff presentations as part of the agenda packet that is issued prior to a meeting.  And then, when asked, providing copies to Town officials afterwards.  So they aren’t in the agenda packet, but they are presented at the meeting, and delivered to Town officials afterwards.

You can always take a picture of what’s on the screen, in a meeting, with your cell phone, I guess.  So maybe that meets the letter of the law.  But that’s not my main gripe.  At least not for this post.


And now a brief quiz, with answers given in the last section.

Hypothetically, suppose a Virginia town wanted to sidestep the Virginia Freedom of Information Act.  Maybe they have some document that they want their town council to discuss and vote on.  But they want to keep that document out of the public eye, and they want to keep everything but the vote out of the public’s view as well.

And so they develop the following method.  They bring town council members into a room, two-by-two, to have them read the document and discuss it.    That way, all the elected representatives of this town would have had a chance to read and discuss this document among themselves.  And they will “daisy chain” the information — every town council member is free to inform every other town council member of what any other town council member said.  So they all get to read the document, and they all get to know what everyone thinks of it, but because there were never three of them in the room at the same time, that discussion is not a “public meeting” and can remain secret.  And the underlying document can remain secret.  That is, out of the public’s view.

Question 1:  Is that legal?  Is it legal to for a town government to create a formal method for sidestepping the intent of the Virginia Freedom of Information Act by , in effect, holding a town council meeting serially — two-by-two — instead of all at once (seven-in-the-room)?

Question 2:  Should that be legal?


Question 1:  Is that legal? Yep, that’s legal.  I couldn’t find it in black-and-white, but it’s a common enough trick that I found it discussed by a Virginia county attorney on YouTube.  She even referred to it as “daisy chain” and “Noah’s Ark”.

So the Noah’s Ark meeting — conducting a discussion by an entire public body, in private, two persons at a time — appears to be a valid legal loophole by which a Virginia town government can sidestep the clear intent of the Virginia Freedom of Information Act.

Got to 4:30 in this YouTube video to hear the discussion of open meeting requirements, and go to 5:30 in this clip to hear the two-by-two “Noah’s Ark” method described.

Question 2:  Should it be legal?  I’d say that depends.  If this is the only way you can avoid fisticuffs in a meeting — by literally keeping combative parties physically separated — I think most would argue that’s a legitimate (if regrettable) way to get the public’s business done.

By contrast, suppose that the only reason a town did that was to circumvent the Virginia Freedom of Information Act?  Suppose that they used the Noah’s Ark meeting purely as a way to keep discussion and documents out of the public eye.  Suppose they used this method to conduct business, in private, that could just as easily have been done in public — they just didn’t want the citizens to know about it?

I’m not a lawyer, but in that case, I’d bet you could find a sympathetic judge to rule that illegal.  Particularly when the statute says this, quite plainly:

The provisions of this chapter 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.

I’d say that the use of the Noah’s Ark meeting, purely to keep documents and discussion out of the public eye, was in direct contradiction to that clause in red.  But then again, I’m not a lawyer, and I could not find any reference to that being tested in court.

Of course, the trick there is that nobody would be stupid enough to say that this method was being used solely to keep government action secret.  If pressed, any town government could gin up some fiction as to why it chose to keep discussion and documents private, rather than public.  So, maybe the reason I couldn’t find any challenges to this practice is that it would be effectively impossible to prove that the motive was purely to sidestep the Virginia Freedom of Information Act.

Anyway, the bottom line is that if you ever wondered how, sometimes, at our own Town Council meetings, Council members are aware of the technical details of an issue, and sometimes the discussion makes it seem like the issue in question is a done deal.  Without there having been any publicly-available documents posted for a meeting.  Or anything like a public discussion where you heard them agree on the issue at hand.  Well, the Noah’s Ark meeting is one way they can do that. It’s one way a public body in Virginia can do its business in private, and still, at least in theory, meet the letter of the law with respect to the Virginia Freedom of Information Act.