After Del. J. Randall Minchew (R-10) raised concerns at a meeting Monday, Loudoun County Attorney Leo Rogers said there was nothing illegal about Supervisor Tony R. Buffington’s (R-Blue Ridge) texts to committee members.
Virginia Freedom of Information Act Council attorney Alan Gernhardt agreed with Rogers that texts between supervisors could be viewed in the same light as one-on-one sidebar conversations, which are allowed. Gernhardt said that because the text messages were one-on-one, rather than in a group text, they did not constitute a meeting, and that reading the texts into the public record was an effective remedy if a violation had been committed.
“They put it in the record and made it public,” Gernhardt said.
Rogers said he developed his opinion in consultation with both Gernhardt and the Virginia Coalition for Open Government. He also said texting may not meet the definition of a meeting under the Freedom of Information Act.
“If you were to write a letter, or send an email, or send a text, or send a tweet, they’re saying that’s not a meeting because there’s not that simultaneous exchange between people,” Rogers said.
FOIA Council Executive Director Maria Everett agreed with Rogers and Gernhardt’s interpretation, adding that the text messages are certainly in the public record.
“It clearly violated the spirit and intent of open meeting laws, but I believe it violates the letter of the law,” Minchew said. He maintains that, individual texts or not, Buffington was in effect participating in the meeting.
“I read the statute, and I think that there was a functional meeting taking place that was being aided and abetted by electronic means,” Minchew said. “There was a motion on the floor, there was lobbying going on, and Supervisor Buffington could have attended the meeting by speakerphone. The law allows for that, and then everyone in the audience would have heard his words, but as it wound up, with a motion on the floor, the only people who heard his lobbying were the people who received his text messages.”
Gernhardt said the incident could land in a legal gray area.
“There is the idea of them having a meeting within a meeting, which would be at least against the spirit of FOIA, if not against the letter,” Gerhardt said. He said that would depend on whether Buffington’s texts amounted to full participation in the meeting—a judgment he said would need to be left to a court.
Technology Leaves FOIA Behind
In either case, the incident pushes at the edge of FOIA law.
“What we find in freedom of information law is that technology always gets ahead of the law,” Minchew said. “I’d say that about Uber, I’d say that about Airbnb, I would say that about FOIA law back when emails came into existence.”
“I don’t think that I’ve seen a court ruling on it anywhere,” Gernhardt said. “On a practical level, this one’s just kind of weird, because they were actually having a meeting, there was notice, and they did include it in the minutes. I guess the question really becomes: Did one member improperly participate? And I don’t really know the answer to that.”
Gernhardt said he has never heard of an incident quite like it.
“People have to realize, we’re not in Kansas anymore, and so much of FOIA is public relations and its application,” Everett said. “You didn’t have a violation of the letter of the law, because the law hasn’t addressed this. It just doesn’t look good, and transparency’s about trust.”
Everett said she expects the incident to come up at the next meeting of the meetings subcommittee of the Virginia FOIA Council, which is in the third year of a three-year review of Virginia’s law. That could mean the incident in the Transportation and Land Use Committee might shape future FOIA law in Virginia.
It is neither Loudoun nor Minchew’s first foray into the ragged edges of FOIA technology law. In 2014, Minchew introduced a successful amendment to the Virginia Freedom of Information Act after the Leesburg Town Council voted not to allow then-council member and current mayoral candidate Kevin Wright to participate in a meeting remotely.
Supporters of a proposal at that meeting voted to deny Wright’s participation, who was expected to vote against that proposal. Public criticism caused the council to reverse its decision the next day. Minchew’s 2014 House Bill 193 removed the requirement for a majority vote to allow remote electronic participation.
Rogers said Deputy County Attorney Ron Brown did the right thing asking supervisors to read their text conversations into the public record.
“That was done out of an abundance of caution, to cure by disclosure,” Rogers said. “We didn’t need to do it, but I’m glad we did.”
Buffington said in a statement that government transparency is very important to him.
“If my exchange of text messages with individual members of the Board of Supervisors during last week’s Transportation and Land Use Committee meeting created a perception of wrongdoing to even one member of the public, then I am absolutely regretful,” Buffington wrote. “As is apparent from my text messages, my priority remains to effectively represent the people of the Blue Ridge District and Loudoun County.”