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press organizations and civic groups,
21
a number of states enacted open
meeting statutes, to the point where twenty-six states had such statutes in
effect by 1962.
22
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.
23
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
24
and then provide that such public bodies must con-
duct their meetings in open session
25
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
OC
. 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
EX
. T
ECH
J. T
EX
. 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
RK
. L. R
EV
. 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).
22
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)).
23
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
EV
. 1483, 1483 (1995) (discussing New York’s
enactment of its Open Meetings Law in 1976).
24
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.
V
A
. C
ODE
A
NN
. § 2.2-3701 (Michie Supp. 2004).
25
See, e.g., G
A
. C
ODE
A
NN
. § 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
LL
. C
OMP
.
S
TAT
. A
NN
. 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
D
. C
ODE
A
NN
., S
TATE
215
2004]
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PPLYING
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TATE
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MAIL
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725
ing falls within an enumerated statutory exception.
26
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.
27
For
example, Virginia’s FOIA statute defines the term “meetings” as follows:
G
OV
’
T
§ 10-505 (1999) (“Except as otherwise expressly provided in this subtitle, a public body shall
meet in open session.”); N.Y. P
UBLIC
O
FFICERS
L
AW
§ 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
A
.
C
ONS
. S
TAT
. A
NN
. § 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
A
. C
ODE
A
NN
. § 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
A
. C
ODE
A
NN
. § 2.2-3711 (Michie Supp. 2004)
(authorizing closed meetings when any of 29 statutory exemptions applies).
27 See A
LASKA
S
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
EV
. S
TAT
.
A
NN
. § 38-431 (West 2001) (“gathering” of a quorum of a public body); D
EL
. C
ODE
A
NN
. tit. 29, §
10002(b) (2003) (“the formal or informal gathering of a quorum of the members of any public body”);
G
A
. C
ODE
A
NN
. § 50-14-1(a)(2) (1998) (“the gathering of a quorum of the members of the governing
body of an agency”); H
AW
. R
EV
. S
TAT
. A
NN
. § 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
C
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
LL
. C
OMP
. S
TAT
. A
NN
. 120/1.02 (West
Supp. 2004) (“any gathering of a majority of a quorum of the members of a public body”); I
ND
. C
ODE
A
NN
. § 5-14-1.5-2(c) (Michie Supp. 2001) (“a gathering of a majority of the governing body of a
public agency”); I
OWA
C
ODE
A
NN
. § 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
AN
. S
TAT
. A
NN
.
§ 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
Y
. R
EV
. S
TAT
. A
NN
. § 61.805(1)
(Michie Supp. 2003) (“informational or casual gatherings held in anticipation of or in conjunction with
a regular or special meeting”); L
A
. R
EV
. S
TAT
. A
NN
. § 42:4.2 (West 1990) (“the convening of a quo-
rum of a public body”); M
D
. C
ODE
A
NN
., S
TATE
G
OV
’
T
§ 10-502(g) (1999) (“to convene a quorum of a
public body”); M
ASS
. G
EN
. 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
A
NN
. §
15.2626(2)(a)
(West Supp. 2004) (“convening of a public body at which a quorum is present”); M
ISS
.
C
ODE
A
NN
. § 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
A
NN
. § 2-3-202 (2003)
(“convening of a quorum of the constituent membership” of a public body “whether corporal or by
176
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EO
. M
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.
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. 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.
28
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
EV
. R
EV
. S
TAT
. A
NN
. § 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.
R
EV
. S
TAT
. A
NN
. § 91-A:2 (2004) (“convening of a quorum of the membership of a public body”); N.J.
S
TAT
. A
NN
. § 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
NN
. §
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
O
FFICERS
L
AW
§ 102(1) (McKin-
ney 2001) (“the official convening of a public body”); 65 P
A
. C
ONS
. S
TAT
. A
NN
. § 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
EN
. 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
.
A
NN
. 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
. R
EV
. 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
EN
. 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
A
NN
. § 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
A
NN
. § 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
EX
. G
OV
’
T
C
ODE
A
NN
. § 551.001(4)(A) (Vernon Supp. 2004) (“a deliberation between
a quorum of a governmental body”); U
TAH
C
ODE
A
NN
. § 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
T
. S
TAT
.
A
NN
. tit. 1, § 310(2) (2003) (“a gathering of a quorum of the members of a public body”); W. V
A
.
C
ODE
A
NN
. § 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
IS
. S
TAT
. A
NN
. § 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
YO
.
S
TAT
. A
NN
. § 16-4-402(a)(iii)
(Michie 2003) (“an assembly of at least a quorum of the governing
body”).
28
V
A
. C
ODE
A
NN
. § 2.2-3701 (Michie Supp. 2004).
110
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727
would not appear to constitute a “meeting” under statutory definitions in-
corporating these concepts.
29
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 . . . .
30
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
29
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
EN
. S
TAT
. A
NN
. § 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
AL
.
G
OV
’
T
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
EV
. S
TAT
. A
NN
. § 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
AN
. S
TAT
. A
NN
. § 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
O
. A
NN
. 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
R
EV
. C
ODE
A
NN
. § 121.22(B)(2) (Anderson Supp. 2003)
(“any prearranged discussion of the public
business of the public body by a majority of its members”).
114
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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.
31
Some
open meeting statutes—such as the Alabama Sunshine Law—do not define
the term “meeting.”
32
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.”
33
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
31
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
E
. R
EV
. S
TAT
. A
NN
. 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
P
. S.D.
A
TT
’
Y
G
EN
. No. 89-08, 1989 WL 505659 (Apr. 3, 1989).
32 A
LA
. C
ODE
§ 13A-14-2 (1975) (prohibiting closed meetings without defining the term “meet-
ing”); see also D.C. C
ODE
A
NN
. § 1-207.42(a) (2001) (requiring meetings to be conducted in open
session without defining “meeting”); M
INN
. S
TAT
. A
NN
. § 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
EB
. R
EV
. S
TAT
. A
NN
. § 84-1409(2)
(Michie 2003)
(“[
M
]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.”).
33
A
RK
. C
ODE
A
NN
. § 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
EV
. C
ODE
§ 42.30.020(4) (2004).
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