c# pdf to image pdfsharp: Convert pdf forms to fillable software SDK cloud windows wpf html class Some+Assembly+Required_The+Application+of+State+Open+Meeting+Laws+to+Email+Correspondence0-part742

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SOME ASSEMBLY REQUIRED: THE APPLICATION OF

STATE OPEN MEETING LAWS TO EMAIL

CORRESPONDENCE

John F. O’Connor and Michael J. Baratz

NTRODUCTION

One of the many outgrowths of the “good government” movement of

the 1950s and 1960s was the proliferation of state Sunshine laws.

Every

state in the Union has enacted Sunshine laws designed to make the inner

workings of state and local government more accessible to the public at

large.

State Sunshine laws generally have two components. First, state

Sunshine laws typically contain “open records” provisions that allow citi-

zens and the press to inspect and/or obtain copies of certain government

records.

Second, state Sunshine laws contain “open meeting” provisions,

which require state and/or local government bodies, subject to enumerated

exceptions, to conduct their meetings in a manner open to the public.

This

Article concerns the scope of the open meeting aspect of state Sunshine

laws.

John F. O’Connor, Partner, Steptoe & Johnson

LLP

. B.A., University of Rochester; M.S.Sc.,

Syracuse University; J.D., University of Maryland School of Law. Michael J. Baratz, Associate, Step-

toe & Johnson

LLP

. B.A., George Washington University; J.D., George Washington University School

of Law. The authors were counsel of record for the petitioners in Beck v. Shelton, 593 S.E.2d 195 (Va.

2004). The views expressed in this Article are those of the authors only, and are not necessarily the

views of Steptoe & Johnson

LLP

, its attorneys or clients. The authors would like to thank Howard H.

Stahl of Steptoe & Johnson

LLP

for his perceptive comments on the issues discussed in this Article. Mr.

Stahl was lead counsel for the petitioners in Beck v. Shelton. The authors also would like to thank

Mayor Bill Beck, Vice Mayor Scott Howson, Councilmember Matt Kelly, and Councilmember Tom

Fortune, all of Fredericksburg, Virginia. All of these fine public servants were exemplary clients

throughout the Beck v. Shelton litigation and made litigation of this case a rewarding experience for all

of their lawyers.

Teresa D. Pupillo, Note, The Changing Weather Forecast: Government in the Sunshine in the

1990s—An Analysis of State Sunshine Laws, 71 W

ASH

. U. L.Q. 1165, 1167 (1993) (“However, state

and local governing bodies were not required to open their doors under state open meeting statutes until

the 1950s and 1960s.”).

2 Id. (“Today all fifty states and the District of Columbia have open meeting statutes governing

state and local legislative bodies.”).

Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86

INN

. L. R

. 1137, 1161 (2002) (“Today, all fifty states have open records statutes, a majority of

which are modeled after the [federal Freedom of Information Act].”).

See infra Part II.A (discussing enactment and development of state open meeting statutes).

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Most open meeting statutes prohibit the members of local government

bodies not just from conducting official meetings in secret, but also from

conducting informal, out-of-session “meetings” as well. This feature of

open meeting statutes leaves public officials, and ultimately state attorneys

general and the courts, with the sometimes difficult task of determining

what types of informal communications among public officials constitute

illegal “meetings,” and which types of communications are outside the

scope of an open meeting statute altogether. This task is further compli-

cated as the public’s typical modes of communication change over time. In

essence, public officials, courts, and state attorneys general often are re-

quired to determine the legality of new and sophisticated methods of com-

munication under statutes that were enacted before the public had ready

access to personal computers or even telephones with conference call ca-

pabilities.

If a state statute prohibits informal “meetings” of a quorum of any

public body, then the classic smoke-filled room where a quorum of the

public body gathers to make the deals that later will be adopted at a prop-

erly-convened open meeting is the easy case. The issue becomes a bit

murkier, however, when public officials communicate in other ways that

may or may not be contrary to the literal terms of a state open meeting

statute. For example, courts have grappled with whether communications

that would constitute a meeting if conducted in person lose their character

as a meeting when conducted by telephone conference call.

Similarly,

enterprising public officials have at times sought to evade the strictures of

a state open meeting statute by engaging in a pre-planned series of one-on-

one conversations, and courts have had to determine whether such an eva-

sion is permissible under state law.

This Article considers whether the exchange of emails

among public

officials can—or should—constitute an illegal “meeting” under state open

meeting statutes. The manner of resolving this question also may shed light

on whether other types of electronic communication—such as chat rooms

or instant messaging—run afoul of state open meeting statutes. These are

just some of the challenges courts face in applying statutes written thirty

years ago to methods of communication that were not even conceived of at

5 See infra Part II.B.2.

See infra Part II.B.1.

One commentator has defined emails in the following manner:

E-mail is a service that two or more parties use to transmit words converted into digital form

between two or more computer terminals through a service provider where the message is

maintained in electronic storage until accessed by the recipient. E-mail is easy to use and

time-saving, and, with a mouse-click, detailed messages can be sent to many parties simul-

taneously.

James G. Colvin, II, E-Mail, Open Meetings, and Public Records, C

OLO

. L

., Oct. 1996, at 99, 100.

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that time.

Public officials face this same challenge in attempting to deter-

mine just what they can and cannot do in communicating with other mem-

bers of the public body to which they belong.

On March 5, 2004, the Supreme Court of Virginia clarified some of

these issues, at least under Virginia’s Freedom of Information Act,

when

the court issued its landmark opinion in Beck v. Shelton.

In Beck, the Vir-

ginia Supreme Court became the first state supreme court to decide

whether the exchange of email correspondence by members of a public

body can constitute an illegal closed “meeting” under a state open meeting

statute. The Beck court held that the exchange of ordinary email corre-

spondence by members of a public body could not constitute an illegal

meeting for purposes of Virginia’s FOIA statute.

Because the concept of

a “meeting” connotes an assemblage or gathering of the members of the

public body, the court held that the exchange of ordinary email correspon-

dence, which does not involve simultaneous deliberation or discussion of

any kind, was no more a “meeting” than is the exchange of letters through

the mails.

As the first state high court to resolve this issue, the Virginia

Supreme Court’s reasoning in Beck v. Shelton may have significant impli-

cations for the manner in which open meeting statutes are construed under

similar statutes across the country.

Part I of this Article provides some background into the development

of state open meeting statutes. These provisions generally prohibit closed

“meetings” of local government bodies in the absence of a statutory excep-

tion that permits a particular subject to be discussed in executive session.

Of course, a requirement of open “meetings” raises the issue of whether

particular interaction among public officials constitutes a “meeting” in the

first instance, and Part II will discuss some of the ways in which courts

have approached this question under a variety of factual scenarios.

Part III of this Article analyzes the Virginia Supreme Court’s decision

in Beck v. Shelton, in which the court held that the exchange of ordinary

email correspondence among members of a public body is not tantamount

8 See Jessica M. Natale, Exploring Virtual Legal Presence: The Present and the Promise, 1 J.

IGH

ECH

. L. 157, 159 (2002) (“The major problem with virtual presence conforming to preexisting

open-meeting laws, is the interpretation of what it means to be present for these meetings.”); Brian J.

Caveney, Comment, More Sunshine in the Mountain State: The 1999 Amendments to the West Virginia

Open Governmental Proceedings Act and Open Hospital Proceedings Act, 102 W. V

. L. R

. 131,

174 (1999) (noting that West Virginia’s open meeting statute “does not address electronic mail com-

munications to discuss ‘public business’ between members of a governing body”).

Virginia Freedom of Information Act, V

. C

ODE

. § 2.2-3700 to 3714 (Michie 2001 &

Supp. 2004).

10 593 S.E.2d 195 (Va. 2004).

Id. at 200.

Id. at 199.

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722

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. 12:3

to holding an illegal, informal “meeting” under Virginia’s FOIA statute.

In the authors’ estimation, the Virginia Supreme Court got it exactly right

in Beck. An ordinary email is nothing more than a piece of written corre-

spondence transmitted through an efficient and inexpensive means. More-

over, email correspondence is like letters—and unlike face-to-face meet-

ings and telephone conference calls—in that the transmission of an email

creates a perfect public record as to the substance of the communications,

one that generally must be retained and made available to the public under

state open records statutes.

Therefore, the public’s interest in overseeing

the workings of local government is protected in the same way that it is for

all other types of written correspondence—the public may review such

correspondence by making a records request under the open records provi-

sions of state law.

Beyond being correct as a matter of statutory construction, the authors

believe that permitting the exchange of email correspondence among pub-

lic officials makes sense from a public policy standpoint, and Part IV of

this Article explains the basis for this conclusion. There is an inherent ten-

sion between open government on one hand, and government efficiency on

the other. Government can become exceedingly efficient when not bur-

dened by the requirements of state sunshine laws, but such efficiency can

be both undemocratic and contrary to the public’s interest. At the other

extreme, notions of open government for the sake of open government,

while sounding nice in the abstract, can easily create paralysis in local

government, with public officials unable to coordinate with each other in a

way that promotes, not retards, the public’s interest in good government.

It makes little sense from a policy standpoint for a state’s open meeting

statute to prohibit communications—such as emails—that are subject to

disclosure under state open records laws. Prohibiting email communica-

tions under the auspices of an open meeting statute would hinder the effi-

ciency of local government solely in the interest of creating public access

to communications to which the public already has a right of access

through state open records statutes. The public interest in open government

Id. at 200.

Id. at 199 (“There is no question that e-mails fall within the definition of public records . . . .”);

see also Op. Ark. Att’y Gen. No. 99-018, 1999 WL 182169, at *2 (Mar. 22, 1999) (“The electronically

stored e-mail message would be a ‘public record’ subject to disclosure . . . .”); Op. Md. Att’y Gen. No.

96-016, 1996 WL 305985, at *3 (May 22, 1996) (“An e-mail message surely falls within this definition

[of ‘public record’].”); Op. N.D. Att’y Gen. No. 98-O-05, 1998 WL 1057738, at *4 n.8 (Mar. 3, 1998)

(“[E]-mail messages or letters between Board members are records subject to the open records and

records retention laws . . . .”).

15 See Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 517 (Minn. 1983) (“There is a

point beyond which open discussion requirements may serve to immobilize a body and prevent the

resolution of important problems.”).

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is best served by encouraging the interaction and coordination of public

officials in a manner that allows for efficient governance yet produces a

record to which the public has a right of access.

I. T

EVELOPMENT AND

TRUCTURE OF

TATE

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A. The Enactment of Open Meeting Statutes by the States

At common law, the public had no right to attend the meetings of

government bodies.

In seventeenth and eighteenth century England, pub-

lication of parliamentary debates was a punishable offense.

In the United

States, our Constitution was crafted in large part through secret meetings of

the Constitutional Convention,

and congressional committees historically

conducted much of their business in closed session.

Indeed, as recently as

1950, Alabama was the only state with an open meeting statute on its

books.

Over the next decade, however, due in large part to lobbying from

City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971) (“We do not overlook the argu-

ments that the right to attend meetings of government bodies did not exist at common law . . . . ); State

ex rel. Stephan v. Bd. of County Comm’rs, 866 P.2d 1024, 1025 (Kan. 1994) (“Preliminarily, we note

there is no common-law right of the public or press to attend meetings of governmental bodies, and any

such right is created by statute and is governed by the statutory language employed.”); Beacon Journal

Publ’g. Co. v. City of Akron, 209 N.E.2d 399, 404 (Ohio 1965) (“It is clear that the public has no

common-law right to attend meetings of governmental bodies.”) (citation omitted); Roanoke City Sch.

Bd. v. Times-World Corp., 307 S.E.2d 256, 258 (Va. 1983) (“[T]here is no common-law right of the

public or press to attend the meetings of governmental bodies.”); Note, Open Meeting Statutes: The

Press Fights for the “Right to Know,” 75 H

ARV

. L. R

. 1199, 1203 (1962) [hereinafter Open Meeting

Statutes] (“It is clear that the public has no common law right to attend meetings of government bod-

ies.”); David A. Barrett, Note, Facilitating Government Decision Making: Distinguishing Between

Meetings and Nonmeetings Under the Federal Sunshine Act, 66 T

. L. R

. 1195, 1197 (1988) (“Nei-

ther the Constitution nor the common law, however, grants the public a right of access to the delibera-

tive processes of government.” (footnotes omitted)).

Open Meeting Statutes, supra note 16, at 1203.

18 Id. at 1202 (“[T]he delegates to the Constitutional Convention, for example, felt constrained to

work in secrecy.”); see also Cass R. Sunstein, Government Control of Information, 74 C

. L. R

889, 889 (1986) (“The practice of withholding information when important public policies so require is

nothing new; the Constitution’s framers themselves kept their deliberations secret.”); Pupillo, supra

note 1, at 1166-67 (“Although the Founding Fathers recognized the importance of public participation

in the democratic process, they closed the Constitutional Convention to the public.” (footnote omit-

ted)).

Open Meeting Statutes, supra note 16, at 1203 (noting that, as of 1962, approximately one-

third of congressional committee meetings were closed to the public).

20 Note, Government in the Sunshine Act: Opening Federal Agency Meetings, 26 A

. U. L. R

154, 154 n.3 (1976) [hereinafter Government in the Sunshine Act]; Open Meeting Statutes, supra note

16, at 1199-1200 & n.7.

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. 12:3

press organizations and civic groups,

a number of states enacted open

meeting statutes, to the point where twenty-six states had such statutes in

effect by 1962.

By 1976, when New York enacted its open meeting stat-

ute, all fifty states and the District of Columbia had statutes in effect which

prohibited most categories of closed meetings by state and local govern-

ment bodies.

The structure of most state open meeting statutes is relatively simple.

The statutes generally identify the types of government bodies that are

subject to the statute

and then provide that such public bodies must con-

duct their meetings in open session

unless the subject matter of the meet-

21 James Bowen, Behind Closed Doors: Re-examining the Tennessee Open Meetings Act and Its

Inapplicability to the Tennessee General Assembly, 35 C

OLUM

. J. L. & S

. P

ROBS

. 133, 140-41

(2002) (noting the role played by the Tennessee media in lobbying for enactment of Tennessee’s Open

Meetings Act and the role the press played nationally in the open meetings movement); Rick L. Dun-

can, No More Secrets: How Recent Legislative Changes Will Allow the Public Greater Access to In-

formation, 1 T

. T

ECH

J. T

. A

DMIN

. L. 115, 118 (2000) (noting that open meeting legislation “was

spurred by media organizations who had become disgruntled by the frequency at which public officials

were denying admittance to meetings of government bodies”); John J. Watkins, Open Meetings Under

the Arkansas Freedom of Information Act, 38 A

. L. R

. 268, 272-73 (1984) (“Various journalism

organizations—notably the American Society of Newspaper Editors and Sigma Delta Chi, the national

journalism fraternity—[by 1950] began to press for open meetings legislation at the state and federal

levels.”); Open Meeting Statutes, supra note 16, at 1199 (noting the role of the Freedom of Information

Committee of the American Society of Newspaper Editors and other civic groups in campaigning for

enactment of state open meeting laws).

Open Meeting Statutes, supra note 16, at 1199-1200 (“Twenty-six states [as of 1962] have

open meeting statutes applicable to state and local governmental bodies; ten years ago only one of these

laws existed in its present form.” (footnote omitted)).

See Government in the Sunshine Act, supra note 20, at 154 n.3 (noting that, as of 1976, the

District of Columbia and all states except for New York had an open meetings statute in effect); Timo-

thy P. Whelan, New York’s Open Meetings Law: Revision of the Political Caucus Exemption and Its

Implications for Local Government, 60 B

ROOK

. L. R

. 1483, 1483 (1995) (discussing New York’s

enactment of its Open Meetings Law in 1976).

For example, Virginia’s open meeting statute defines a “public body” subject to the statute’s

open meeting provisions as follows:

“Public body” means any legislative body, authority, board, bureau, commission, district or

agency of the Commonwealth or of any political subdivision of the Commonwealth, includ-

ing cities, towns and counties, municipal councils, governing bodies of counties, school

boards and planning commissions; boards of visitors of public institutions of higher educa-

tion; and other organizations, corporations or agencies in the Commonwealth supported

wholly or principally by public funds. It shall include . . . any committee, subcommittee, or

other entity however designated, of the public body created to perform delegated functions

of the public body or to advise the public body. It shall not exclude any such committee,

subcommittee or entity because it has private sector or citizen members. Corporations or-

ganized by the Virginia Retirement System are “public bodies” for purposes of this chapter.

. C

ODE

. § 2.2-3701 (Michie Supp. 2004).

See, e.g., G

. C

ODE

. § 50-14-1(b) (2004) (“Except as otherwise provided by law, all

meetings as defined in subsection (a) of this Code section shall be open to the public.”); 5 I

. C

OMP

TAT

. A

. 120/2(a) (West Supp. 2004) (“All meetings of public bodies shall be open to the public

unless excepted in subsection (c) and closed in accordance with Section 2a.”); M

. C

ODE

., S

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725

ing falls within an enumerated statutory exception.

Of course, providing

by statute that meetings of public bodies shall be open to the public begs

the question of what exactly constitutes a “meeting.”

As a general matter, states have dealt with defining the scope of the

term “meeting” in three ways that are relevant to this Article. First, and by

far the most common approach, state legislatures have enacted statutory

definitions of the term “meeting” that include not only official sessions of a

public body, but also situations where some defined portion of a public

body is informally “gathered,” “assembled,” or “convened” together.

For

example, Virginia’s FOIA statute defines the term “meetings” as follows:

’

§ 10-505 (1999) (“Except as otherwise expressly provided in this subtitle, a public body shall

meet in open session.”); N.Y. P

UBLIC

FFICERS

§ 103(a) (McKinney 2001) (“Every meeting of a

public body shall be open to the general public, except that an executive session of such body may be

called and business transacted thereat in accordance with section ninety-five of this article.”); 65 P

ONS

. S

TAT

. A

. § 704 (West 2000) (“Official action and deliberations by a quorum of the members

of an agency shall take place at a meeting open to the public unless closed under section 707 (relating

to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General As-

sembly meetings covered).”); V

. C

ODE

. § 2.2-3707(A) (Michie Supp. 2004) (“All meetings of

public bodies shall be open, except as provided in § 2.2-3711.”).

26 For example, Virginia’s FOIA statute requires public bodies to conduct their meetings in open

session unless one of 33 statutory exemptions apply. V

. C

ODE

. § 2.2-3711 (Michie Supp. 2004)

(authorizing closed meetings when any of 29 statutory exemptions applies).

27 See A

LASKA

TAT

. § 44.62.310(h)(2) (Michie 2002) (defining meeting as a “gathering” of

three or more members of a governmental body, or a majority if less than three); A

RIZ

. R

. S

TAT

. § 38-431 (West 2001) (“gathering” of a quorum of a public body); D

. C

ODE

. tit. 29, §

10002(b) (2003) (“the formal or informal gathering of a quorum of the members of any public body”);

. C

ODE

. § 50-14-1(a)(2) (1998) (“the gathering of a quorum of the members of the governing

body of an agency”); H

. R

. S

TAT

. A

. § 92-2(3) (Michie 2003) (“the convening of a board for

which a quorum is required in order to make a decision or to deliberate toward a decision”); I

DAHO

ODE

§ 67-2341(6) (Michie 2001) (“the convening of a governing body of a public agency to make a

decision or to deliberate toward a decision on any matter”); 5 I

. C

OMP

. S

TAT

. A

. 120/1.02 (West

Supp. 2004) (“any gathering of a majority of a quorum of the members of a public body”); I

. C

ODE

. § 5-14-1.5-2(c) (Michie Supp. 2001) (“a gathering of a majority of the governing body of a

public agency”); I

OWA

ODE

. § 21.2(2) (West 2001) (“a gathering in person or by electronic

means, formal or informal, of a majority of the members of a governmental body”); K

. S

TAT

. A

§ 75-4317a

(1997) (“any gathering, assembly, telephone call or any other means of interactive commu-

nication” with the necessary quorum to discuss official business); K

. R

. S

TAT

. A

. § 61.805(1)

(Michie Supp. 2003) (“informational or casual gatherings held in anticipation of or in conjunction with

a regular or special meeting”); L

. R

. S

TAT

. A

. § 42:4.2 (West 1990) (“the convening of a quo-

rum of a public body”); M

. C

ODE

., S

TATE

’

§ 10-502(g) (1999) (“to convene a quorum of a

public body”); M

ASS

. G

. L

AWS

, ch. 39 § 23A (West 1999) (“any corporal convening and delibera-

tion of a governmental body for which a quorum is required”); M

ICH

. C

OMP

. L

AWS

. §

15.2626(2)(a)

(West Supp. 2004) (“convening of a public body at which a quorum is present”); M

ISS

ODE

. § 25-41-3(b) (Supp. 2003)

(“an assemblage of members of a public body” or “any such

assemblage through the use of video or teleconference devices”); M

ONT

. C

ODE

. § 2-3-202 (2003)

(“convening of a quorum of the constituent membership” of a public body “whether corporal or by

726

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L. R

. 12:3

“Meeting” or “meetings” means the meetings including work sessions, when sitting physi-

cally, 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 . . . of any public body.

The use of qualifying words such as “gathering” or “assemblage” is

significant because this language suggests that not all communications

among public officials would constitute a meeting under the statute. Tak-

ing perhaps the easiest example, a letter sent through the mails by one pub-

lic official to other members of the same public body would not seem to

involve a “gathering” or “assemblage” of the members, and therefore

means of electronic equipment”); N

. R

. S

TAT

. A

. § 241.015(2) (Michie Supp.

2003) (“gather-

ing of members of a public body at which a quorum is present to deliberate toward a decision”); N.H.

. S

TAT

. A

. § 91-A:2 (2004) (“convening of a quorum of the membership of a public body”); N.J.

TAT

. A

. § 10:4-8(b) (West 2002) (“any gathering whether corporeal or by means of communication

equipment, which is attended by, or open to, all of the members of a public body”); N.M. S

TAT

. A

. §

10-15-2(c) (Michie 2003) (“a gathering of the members called by the presiding officer,” including a

meeting of a quorum of members of any public body); N.Y. P

UBLIC

FFICERS

§ 102(1) (McKin-

ney 2001) (“the official convening of a public body”); 65 P

. C

ONS

. S

TAT

. A

. § 703 (West 2000)

(“[a]ny prearranged gathering of an agency which is attended or participated in by a quorum of the

members”); N.C. G

. S

TAT

. § 143-318.10(d)

(2003) (defining meeting as a “meeting, assembly, or

gathering together at any time or place, or the simultaneous communication by conference telephone or

other electronic means of a majority of a public body to conduct public business”); N.D. C

ENT

. C

ODE

44-04-17.1(8) (2001) (“a formal or informal gathering, whether in person or through other means such

as telephone or video conference” of a quorum of the members of the governing body); O

KLA

. S

TAT

. tit. 25, § 304 (West Supp. 2004) (“conduct of business of a public body by a majority of its

members being personally together” or as authorized by teleconference); O

. R

. S

TAT

. § 192.610(5)

(1999) (“convening of a governing body of a public body for which a quorum is required in order to

make a decision or to deliberate toward a decision on any matter”); R.I. G

. L

AWS

§ 42-46-2(a)

(Supp. 2003) (meeting means the convening of a public body and shall expressly include so-called

workshops, working, or work sessions); S.C. C

ODE

. § 30-4-20(d) (Law. Co-op. 1991) (a means of

convening a quorum of members of a public body, whether in person or by means of electronic equip-

ment); T

ENN

. C

ODE

. § 8-44-102(b)(2) (2002) (“the convening of a governing body of a public

body for which a quorum is required in order to make a decision or to deliberate toward a decision on

any matter”); T

. G

’

ODE

. § 551.001(4)(A) (Vernon Supp. 2004) (“a deliberation between

a quorum of a governmental body”); U

TAH

ODE

. § 52-4-2(2)(a) (2002) (“convening of a public

body, with a quorum present, whether in person or by means of electronic equipment”); V

. S

TAT

. tit. 1, § 310(2) (2003) (“a gathering of a quorum of the members of a public body”); W. V

ODE

. § 6-9A-2(4) (Michie 2003) (“the convening of a governing body of a public agency for

which a quorum is required in order to make a decision or to deliberate toward a decision on any matter

which results in an official action”); W

. S

TAT

. A

. § 19.82 (West Supp. 2002) (a meeting is rebut-

tably presumed when one-half or more of the members of a governmental body are present); W

TAT

. A

. § 16-4-402(a)(iii)

(Michie 2003) (“an assembly of at least a quorum of the governing

body”).

. C

ODE

. § 2.2-3701 (Michie Supp. 2004).

2004]

PPLYING

TATE

PEN

EETING

AWS

MAIL

ORRESPONDENCE

727

would not appear to constitute a “meeting” under statutory definitions in-

corporating these concepts.

By contrast, some state legislatures have enacted open meeting stat-

utes that explicitly sweep within their scope informal contact among mem-

bers of a public body even when such members are not “gathered,” “as-

sembled,” or “convened” together. For example, the Connecticut Freedom

of Information Act defines the term “meeting” as follows:

“Meeting” means any hearing or other proceeding of a public agency, any convening or as-

sembly of a quorum of a multimember public agency, and any communication by or to a

quorum of a multimember public agency, whether in person or by means of electronic

equipment, to discuss or act upon a matter over which the public agency has supervision,

control, jurisdiction or advisory power . . . .

Under this statute, it would not be a defense to a claim of illegal con-

duct to admit communicating to a quorum of a public body but to deny that

See Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn. 1983) (noting that

Minnesota’s open meeting statutes “[do] not apply to letters, or to telephone conversations between

fewer than a quorum”); Beck v. Shelton, 593 S.E.2d 193, 198-99 (Va. 2004) (noting that Virginia’s

open meeting statute did not regulate the exchange of letters by public officials).

30 C

ONN

. G

. S

TAT

. A

. § 1-200(2) (West Supp. 2004) (emphasis added). Similarly, some

state statutes have a provision separate and apart from the definition of the term “meeting” that ex-

pressly provides that email communications are subject to open meeting requirements. See, e.g., C

’

ODE

§ 54952.2 (West Supp. 2004) (“[A]ny use of direct communication, personal intermediar-

ies, or technological devices that is employed by a majority of the members of the legislative body to

develop a collective concurrence as to action to be taken on an item by the members of the legislative

body is prohibited.”); C

OLO

. R

. S

TAT

. A

. § 24-6-402(2)(d)(III) (West Supp. 2003) (“If elected

officials use electronic mail to discuss pending legislation or other public business among themselves,

the electronic mail shall be subject to the requirements of this section. Electronic mail communication

among elected officials that does not relate to pending legislation or other public business shall not be

considered a ‘meeting’ within the meaning of this section.”). The Kansas Open Meetings Act includes

within the definition of meetings any “means of interactive communication.” K

. S

TAT

. A

. § 75-

4317a (1997) (“As used in this act, ‘meeting’ means any gathering, assembly, telephone call or any

other means of interactive communication by a majority of a quorum of the membership of a body or

agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”).

However, the Kansas Attorney General has opined that this phrase includes emails only to the extent

that there is simultaneous discussion by public officials via email. Op. Kan. Att’y Gen. No. 95-13, 1995

WL 40761, at *3 (Jan. 23, 1995). Other states statutorily define meeting in terms of a discussion of its

members without requiring an element of simultaneity. See, e.g., M

. A

. S

TAT

. § 610.010(5) (West

2000) (A “public meeting” is any meeting of a public body “at which any public business is discussed,

decided, or public policy formulated, whether corporeal or by means of communication equipment.”

While informal gatherings for social or ministerial purposes are excluded, the term meeting does in-

clude “a public vote of all or a majority of the members of a public governmental body, by electronic

communication or any other means, conducted in lieu of holding a public meeting with the members of

the public governmental body gathered at one location in order to conduct public business.”); O

HIO

. C

ODE

. § 121.22(B)(2) (Anderson Supp. 2003)

(“any prearranged discussion of the public

business of the public body by a majority of its members”).

728

. M

ASON

L. R

. 12:3

the communication occurred while the members were gathered together, as

the statute unambiguously prohibits any and all methods of communicating

to a quorum.

The third way in which state open meeting statutes deal with the con-

cept of “meeting” is essentially not to deal with the issue at all.

Some

open meeting statutes—such as the Alabama Sunshine Law—do not define

the term “meeting.”

Other state statutes—such as the Arkansas Freedom

of Information Act—use a circular definition that defines “meeting” to

include the “meetings” of a statutorily-defined number of the members of a

public body, which essentially defines a “meeting” as a “meeting.”

B. Prior Controversies Over Which Modes of Communication Constitute

a “Meeting”

When states began enacting open meeting statutes in earnest in the

1950s and 1960s, there was little expectation that controversies would arise

over whether a communication constituted a meeting. This is probably

One state, Maine, does not even treat informal communications among members of a public

body as constituting meetings under its open meeting statute. See M

. R

. S

TAT

. A

. tit. 1, § 402

(West Supp. 2003) (defining “public proceedings” subject to open meeting provisions as “the transac-

tions of any functions affecting any or all citizens of the State” by public bodies); see also Marxsen v.

Bd. of Dir., M.S.A.D. No. 5, 591 A.2d 867, 870 (Me. 1991) (noting that “informal discussions among

[school] board members are not unlawful” so long as official action is taken only at a public proceed-

ing). Because this Article addresses whether the exchange of email communications violates open

meeting statutes’ prohibition on informal meetings, and Maine’s statute does not prohibit informal

meetings under any circumstance, the scope of Maine’s open meeting statute is irrelevant for purposes

of this Article. Another state, South Dakota, does not define the term meeting; however, the state attor-

ney general has opined that a meeting occurs when a majority or quorum of the body is present and

official business within the jurisdiction of the board, commission, or agency is discussed. See O

. S.D.

’

. No. 89-08, 1989 WL 505659 (Apr. 3, 1989).

32 A

. C

ODE

§ 13A-14-2 (1975) (prohibiting closed meetings without defining the term “meet-

ing”); see also D.C. C

ODE

. § 1-207.42(a) (2001) (requiring meetings to be conducted in open

session without defining “meeting”); M

INN

. S

TAT

. A

. § 13D.01 (West Supp. 2004) (Moberg v.

Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 516 (Minn. 1983) (noting that the Minnesota legislature

did not define the term “meeting” in its open meeting statute)); N

. R

. S

TAT

. A

. § 84-1409(2)

(Michie 2003)

(“[

]eeting shall mean all regular, special, or called meetings, formal or informal, of any

public body for the purposes of briefing, discussion of public business, formation of tentative policy, or

the taking of any action of the public body.”).

. C

ODE

. § 25-19-103 (Michie Supp. 2003) (“‘Public meetings’ means the meetings of

any bureau, commission, or agency of the state, or any political subdivision of the state . . . supported

wholly or in part by public funds or expending public funds . . . .”). The Arkansas statute requires in

another section that “all meetings, formal or informal” be conducted in open session, which leads to the

circular result that a prohibited informal meeting is a contact that qualifies as a meeting. Id. § 25-19-

106. Similarly, Washington state’s definition of a meeting is: “‘Meeting’ means meetings at which

action is taken.” See W

ASH

. R

. C

ODE

§ 42.30.020(4) (2004).

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