ACLU of Virginia filed brief focusing on need for clarity in Virginia law.

The Virginia Supreme Court today heard oral arguments in a case challenging the right of public officials to engage in unregulated email communications when discussing public business.
Under the state Freedom of Information Act, when three or more members of a public body gather to discuss public business, the meeting must be open to the public. The case before the Virginia Supreme Court stems from email exchanges between the Mayor of Fredericksburg and three members of Fredericksburg City Council in July 2002, in which they discussed the appointment of a candidate to fill a vacancy on the regional library board.
Under Virginia law, letters or even faxes could be exchanged between the four Fredericksburg officials without violating the open meetings law, but those same officials could not gather in one place to discuss the appointments without opening the meeting to the public. (Telephonic meetings of three or more members of a local governing body are forbidden.)
Although Virginia law does not address email exchanges of this kind, the plaintiffs in the case argued that the Fredericksburg email exchanges, because they replicated the interaction of an in-person meeting, violated the FOIA.
A Circuit Court judge in Fredericksburg agreed with this analysis, and held that the exchange of emails between three or more members of a public body for the purpose of reaching a consensus on public business violates the law.
“As usual the law lags far behind the technology,” said ACLU of Virginia executive director Kent Willis. “How this particular case turns out is up to the court to decide, based on the facts before it. But one thing is absolutely clear: state lawmakers must address this issue head on, and define precisely when an email exchange is considered a meeting and when it is not.”
“One of the essential elements of a democracy is an informed citizenry, and that means having a right to be present when public business is being deliberated. Now that email is available for that purpose, public officials must have clear instructions concerning electronic communications. Our hope is that the Supreme Court sends that message, loud and clear, to the Virginia General Assembly.”
The case is Beck v. Shelton. A copy of the ACLU amicus brief is available by calling the number below or sending an email to

Contact: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022