Attorneys Cited
Open Meeting, Open Email?
December 15, 2004“Some Assembly Required: The Application of State Open Meeting Laws to Email Correspondence,” an article by John O’Connor and Michael Baratz of the Washington office, has been published in the George Mason Law Review.
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.
The March 5, 2004, opinion of the Supreme Court of Virginia in Beck v. Shelton establishes a framework for analyzing the propriety of any mode of communication, whether it be emails, chat rooms, instant messaging, or whatever new communication device that might be available twenty years from now. Regardless of the precise means of communication, the lesson from Beck is that the reach of an open meeting statute generally should hinge on whether the communication is more or less simultaneous, as the touchstone of a “meeting,” “assemblage,” or “gathering” is the simultaneous communication and deliberation of its participants. The clarity of the simultaneity principle provides considerable guidance to public officials in conforming their conduct to the strictures of their respective state open meeting statutes.
The result in Beck is right not just as a matter of statutory construction, but also is right as a matter of public policy. There is no good reason to impede public officials’ ability to communicate with each other in a manner that creates an exact written record of the communication that is available to the public under an open records request.
