County Says No FOIA Violation in Texts During Meeting

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.

[Read about the meeting here.]

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.

[Read the county’s statement here.]

“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.

Minchew disagrees.

“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.”

7 thoughts on “County Says No FOIA Violation in Texts During Meeting

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  • 2016-07-20 at 4:25 pm

    My concern this is more circling of the wagon. Goodness knows what the County Attorney told them. “Oh, guys, you broke the law, but don’t worry, I will cover for you. Can I have that raise?” Under Ms. Randall, I hoped that this BOS would do better.

  • 2016-07-20 at 10:56 pm

    HollyAJ, you thought things would be “better” under Randall? Are you serious?

    Within weeks of taking office, the first African American supervisor tried to shut down free speech a la Vladamir Putin. She deleted comments on her public Facebook page and banned user(s) who criticized her. Reminds one a lot of Turkey right now.

    And now Randall and her BOS buddies are defendants in a civil rights complaint in federal court for again censoring speech. But because that is a federal violation, we can likely get our FOIA dispute settled as well.

    You see, when 3 members of the Land Use committee meet, it not only counts as a “public meeting” for the committee but also counts as a public meeting for the entire BOS! That means that “BOS member” Huffington violated FOIA when he used electronic means to participate in the discussion. Look, it’s not my problem that the FOIA council lawyers can’t figure out why this is a violation. But if citizens are just inclined to watch as our unethical officials cover up for one another time and time again, then you get what you deserve – a corrupt gov’t. I, for one, am not willing to roll over and will be arguing this case down in Alexandria.

  • 2016-07-21 at 1:04 pm

    Unless every member of the public attending the meeting could see the texting as it took place this is a clear violation of the Sunshine Laws. If an elected official wants to participate they must be able to be heard, not sending secret messages to other elected officials. They got caught and what they did is unethical.

  • 2016-07-22 at 8:33 am

    It is also unclear how Delegate Minchew “knew” they were all texting over the topic instead of paying attention to the discussion before them. Who told him and when? There is no way the County Attorney is in a position to tell them they broke the law. He works for them. He defends them. He needs his pay check from them.

  • 2016-07-22 at 4:13 pm

    Holly and LsbgMom, let me be clear. I am not saying Mr. Rogers intentionally came up with an erroneous opinion. Nor am I saying he merely parroted what the BOS wanted him to say. When I sat down to write out the legal reasoning, it because apparent that when looking at the issue as a Land Use committee meeting, their opinion made sense. I had to review the law several times before I could understand why it was a violation. Here’s the gist.

    1. To have an informal meeting, there must be 3+ members communicating in sufficient simultaneity to claim it wasn’t separate one-way transmissions. In other words, a Virginia court has ruled that emails sent several hours or even numerous minutes apart does not constitute a meeting. And even then, there has to be information forwarded among more than 2 people. So the separate communications from Buffington to Meyer and from Buffington to Higgins taken together do not constitute a separate meeting of 3.

    2. Buffington wasn’t a member of the Land Use committee. Had he been, the town attorney would almost certainly have ruled this a violation. They interpreted Buffington as any other non-member (read citizen) who was sharing his views. It’s a good question whether a violation occurs if Meyer receives a text from a regular citizen during the meeting. They ruled that non-member citizens communicating with Land Use committee members wasn’t a violation since they didn’t think it was part of the meeting.

    They talked to the FOIA council and the Virginia Coalition of Open Gov. And then stopped (my belief but I haven’t confirmed). However, they didn’t consider the fact that a de facto BOS meeting was also occurring on Friday, July 15.

    If the NOVA Republican club (fictional group) meets to discuss issues before the Loudoun gov’t and Meyer, Buffington and Higgins attend, that violates FOIA because it’s a de facto meeting of the full BOS (as long as 3 members meet and discuss official business). A Republican group meeting wouldn’t normally be required to be open to the public, but given the de facto BOS meeting, it must be. Or if the NoVa regional transportation meet with leaders from various counties across the area and 3 BOS members attended, it would constitute a de facto BOS meeting. The occurrence of another simultaneous meeting doesn’t preclude the fact that a Loudoun BOS is occurring.

    Seen in this light, we re-examine argument #2 above. Rather than looking at Buffington as a non-member of the Land Use committee meeting, he must be considered a member of the simultaneous BOS meeting. The BOS will vote on the land use application thus that discussion definitely constitutes official business. The fact that Buffington participated via relaying messages through other members doesn’t evade the prohibition on communication by “any” other means. Clearly it violated FOIA.

    My point is that a few lawyers can’t get together and decide they know best. They should open the discussion up so that all knowledgeable people can join in. I have presented FOIA arguments in Loudoun court, in Richmond court, and now before the Virginia Supreme Court. I believe I am as versed as anyone in this law. But, of course, they didn’t ask the public for input because they believe they simply know best. If you have a compelling argument you must go to court. If you think you have a chance in Hades of winning a FOIA case in Judge Irby’s courtroom, I’ve got some Antarctic land to sell you. So you not only have to have a valid argument, you must find a way to get into federal court to have any chance. That is the problem in Loudoun’s judicial system today.

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