Present: All the Justices 

BILL BECK, ET AL. 

v. Record No. 030723 OPINION BY JUSTICE DONALD W. LEMONS 

 March 5, 2004 

GORDON SHELTON, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG 

John W. Scott, Jr., Judge 

 In this appeal, we consider several issues relating to 

The Virginia Freedom of Information Act ("FOIA" or the "Act"), 

Code §§ 2.2-3700 to -3714, including: 1) whether "memberselect" are "members" of a public body for the purpose of 

application of FOIA; 2) whether the use of electronic mail 

("e-mail") for communication between three or more members of 

a public body constitutes a "meeting" for the purposes of 

FOIA; and, 3) whether a particular gathering of citizens 

attended by three members of the Fredericksburg City Council 

constituted a "meeting" under the Act. 

Facts and Proceedings Below 

 Gordon Shelton, Anthony Jenkins, and Patrick J. Timpone 

(collectively, "Shelton") filed an 18-count petition for writ 

of mandamus and injunction against William M. Beck, Mayor of 

the City of Fredericksburg; W. Scott Howson III, Vice-Mayor of 

the City of Fredericksburg; and three Councilmen, Thomas P. 

Fortune, William C. Withers, Jr., and Matthew J. Kelly1

 1

 Fortune and Withers are not appellants herein. 
(collectively, "Defendants" or "Beck"). While citing multiple 

incidents of alleged violations of FOIA, the gravamen of the 

complaint was that Defendants "deliberately e-mailed each 

other in a knowing, willful and deliberate attempt to hold 

secret meetings, avoid public scrutiny" and "discuss City 

business and decide City issues without the input of all the 

council members and the public." Shelton asserted that various 

exchanges of e-mail, face-to-face meetings, and one public 

gathering on the streets of Fredericksburg constituted 

"meetings" under FOIA for which there was no notice pursuant 

to Code § 2.2-3707 and no emergency or other exception which 

would relieve the Defendants from the obligations imposed upon 

them concerning public meetings. 

Defendants prevailed on demurrers or at trial on fourteen 

of the eighteen counts and Shelton voluntarily dismissed three 

other counts before trial.2 The trial court held that the Act 

did not apply to conduct of members-elect of the 

Fredericksburg City Council, that certain e-mail 

communications did constitute a "meeting" as defined in FOIA, 

and that a particular gathering of citizens and council 

members, the Charlotte Street gathering, was not a "meeting" 

under the Act. While holding that Defendants violated the 

 2

 Only Counts I-IX, XI, XIV, and XVII are specifically 

before us on appeal. 

2
open meeting provisions of FOIA, the trial court found that 

the violations were not "willful or knowing," declined to 

impose any penalty, and declined Shelton's motion for 

attorney's fees. The final order was silent regarding 

Shelton's request for a writ of mandamus or injunctive relief. 

Beck appeals the adverse judgment of the trial court and 

Shelton assigns cross-error. 

Application of FOIA to "Members-elect" 

 In Counts I - IX of his petition, Shelton alleged various 

violations of FOIA by face-to-face meetings and e-mail 

communications between Mayor Beck, Vice Mayor Howson, and then 

council members-elect Kelly, Fortune, and Withers. Kelly, 

Fortune, and Withers did not become council members until they 

took their respective oaths of office and began their 

respective terms on July 1, 2002. Under the facts of this 

case, pursuant to Code § 2.2-3701, an informal assemblage of 

three members may trigger the application of the open meeting 

requirements of FOIA.3 In these counts, Shelton alleges 

"meetings" between two members of council and three memberselect. Defendants demurred to Counts I - IX, asserting that 

 3

 The definition of "meeting" in Code § 2.2-3701 would 

apply to a quorum, if less than three. Four members represent 

a quorum of the City Council; consequently, under the 

circumstances of this case, a meeting of at least three 

members is required before FOIA open meeting requirements are 

implicated. 

3
as a matter of law the application of FOIA does not extend to 

members-elect of a public body. If FOIA does not apply to 

members-elect, then only two members are alleged to have met 

and the threshold requirement of an assemblage of three 

members was not met. The trial court agreed and sustained the 

demurrers. 

 In support of his assignment of cross-error, Shelton 

argues that the definition of "public body" specifically 

contemplates that "private sector or citizen members" may be 

included as a part of a public body, that members-elect have a 

"statutory obligation to become familiar with the requirements 

of the Act," and that the provisions of FOIA are to be 

"liberally construed." For these reasons, Shelton maintains 

that the provisions of FOIA are applicable to conduct of a 

member-elect as if she were a member of the public body. 

 Under Code § 2.2-3701, the definition of "public body" is 

extended to 

(ii) 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. 

This provision simply includes committees, subcommittees, or 

entities within the types of public bodies covered by FOIA, 

irrespective of participation by private sector or citizen 

4
members. It does not expand the meaning of "members" in the 

definition of "meetings" also contained in Code § 2.2-3701. 

Furthermore, the City Council does not have private sector or 

citizen members and did not use a committee or subcommittee 

structure. The full body or a quorum of the City Council 

cannot logically be presumed to be a committee or subcommittee 

of itself. 

 Additionally, it is true that members-elect are to 

familiarize themselves with the provisions of FOIA after they 

are elected and before they take office. 

Any person elected, reelected, appointed or 

reappointed to any body not excepted from this 

chapter shall (i) be furnished by the public 

body's administrator or legal counsel with a copy 

of this chapter within two weeks following 

election, reelection, appointment or 

reappointment and (ii) read and become familiar 

with the provisions of this chapter. 

Code § 2.2-3702. However, nothing in this statutory provision 

alters the application of FOIA or modifies the meaning of 

"members" in Code § 2.2-3701. 

 Finally, Shelton argues that the statutory admonition of 

"liberal construction" found in the policy statement of Code 

§ 2.2-3700(B) justifies extending the term "members" in Code 

§ 2.2-3701 to include "members-elect." We do not believe that 

the legislature was inviting the judiciary, under the guise of 

5
"liberal construction," to rewrite the provisions of FOIA as 

we deem proper or advisable. To the contrary, 

[w]hen the language of a statute is plain and 

unambiguous, we are bound by the plain meaning of 

that statutory language. Thus, when the General 

Assembly has used words that have a plain 

meaning, courts cannot give those words a 

construction that amounts to holding that the 

General Assembly meant something other than that 

which it actually expressed. 

Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 

S.E.2d 680, 682 (2002) (citations omitted). 

 We will not rewrite Code § 2.2-3701 to change the word 

"members" to the phrase "members or members-elect." It is not 

our prerogative. If the legislature chooses to do so, it is 

properly within its power to do so. The trial court did not 

err in holding that the open meeting provisions of FOIA did 

not apply to meetings of members of a public body that reach 

the required threshold of participants under Code § 2.2-3701 

only by inclusion of members-elect. 

E-mail Communications 

 It is not disputed that on several occasions after July 

1, 2002, more than three members of City Council corresponded 

with each other concerning specific items of public business 

by use of e-mail. It would serve no useful purpose to relate 

the particular subjects of the communications because the 

issue before us involves the method of communication. 

6
Succinctly stated, assuming all other statutory requirements 

are met, does the exchange of e-mails between members of a 

public body constitute a "meeting" subject to the provisions 

of FOIA? Beck assigns error to the trial court's holding that 

it does.4

Indisputably, the use of computers for textual 

communication has become commonplace around the world. It can 

involve communication that is functionally similar to a letter 

sent by ordinary mail, courier, or facsimile transmission. In 

this respect, there may be significant delay before the 

communication is received and additional delay in response. 

However, computers can be utilized to exchange text in the 

nature of a discussion, potentially involving multiple 

participants, in what are euphemistically called "chat rooms" 

or by "instant messaging." In these forms, computer generated 

communication is virtually simultaneous. 

In the case before us, the e-mail communications did not 

involve virtually simultaneous interaction. Rather, the email communications at issue in this case were more like 

traditional letters sent by ordinary mail, courier, or 

facsimile. The record contains printed copies of the e-mails 

 4

 Shelton raises for the first time on appeal that a vote 

was taken by e-mail. Nothing in the record supports such an 

allegation and furthermore it is barred from consideration 

under Rule 5:25. 

7
in question. The shortest interval between sending a 

particular e-mail and receiving a response was more than four 

hours. The longest interval was well over two days. 

The trial court held that such use of e-mail constituted 

a "meeting" pursuant to Code § 2.2-3702 and that Defendants 

held such meetings in private, without notice to the public 

and without opportunity for the public to attend in violation 

of the open meeting requirements of Code § 2.2-3707. The 

trial court held that the issue was not the electronic nature 

of the transmission; rather, "It is how the e-mail is used." 

While we agree with the trial court that "how the e-mail is 

used" is the dispositive consideration, we disagree that this 

case presents circumstances constituting a "meeting" for the 

purposes of FOIA. 

FOIA deals with public access to records and meetings of 

public bodies. There is no question that e-mails fall within 

the definition of public records under Code § 2.2-3701. As 

previously stated, the issue in this case is whether the 

exchange of e-mail also constitutes a "meeting" under FOIA. 

Code § 2.2-3708 provides that 

[i]t shall be a violation of this chapter for any 

political subdivision or any governing body . . . 

to conduct a meeting wherein the public business 

is discussed or transacted through telephonic, 

video, electronic or other communication means 

where the members are not physically assembled. 

8
By definition, a violation under § 2.2-3708 presumes a 

"meeting" as defined in FOIA. Code § 2.2-3701 provides in 

part: 

"Meeting" or "meetings" means the meetings 

including work sessions, when sitting physically, 

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, wherever held, with 

or without minutes being taken, whether or not 

votes are cast, of any public body. The 

gathering of employees of a public body shall not 

be deemed a "meeting" subject to the provisions 

of this chapter. 

Clearly, the conduct in question did not involve "sitting 

physically" in a "work session." Consequently, the key to 

resolving the question before us is whether there was an 

"assemblage." The term "assemble" means "to bring together" 

and comes from the Latin simul, meaning "together, at the same 

time." Webster's Third New International Dictionary 131 

(1993). The term inherently entails the quality of 

simultaneity. While such simultaneity may be present when email technology is used in a "chat room" or as "instant 

messaging,"5 it is not present when e-mail is used as the 

functional equivalent of letter communication by ordinary 

mail, courier, or facsimile transmission. The General 

 5

 This issue is not before us and we do not decide it 

today. 

9
Assembly anticipated this type of communication when it 

provided: 

nothing contained herein shall be construed to 

prohibit (i) separately contacting the 

membership, or any part thereof, of any public 

body for the purpose of ascertaining a member's 

position with respect to the transaction of 

public business, whether such contact is done in 

person, by telephone or by electronic 

communication, provided the contact is done on a 

basis that does not constitute a meeting as 

defined in this chapter . . . 

Code § 2.2-3710(B). Under the terms of this provision, it is 

anticipated that some electronic communication may constitute 

a "meeting" and some may not. As previously stated, the key 

difference between permitted use of electronic communication, 

such as e-mail, outside the notice and open meeting 

requirements of FOIA, and those that constitute a "meeting" 

under FOIA, is the feature of simultaneity inherent in the 

term "assemblage." 

 The Attorney General of Virginia has had occasion to 

render an opinion on this subject. 1999 Op. Atty. Gen. 12. 

The question presented to the Attorney General was "whether 

§ 2.1-343.1(A), a portion of The Virginia Freedom of 

Information Act, §§ 2.1-340 through 2.1-346.1 of the Code of 

Virginia, prohibits an elected member of a local governing 

body from sending electronic mail communications to three or 

10
more other members of the governing body."6 Id. The Attorney 

General did not consider the dynamics presented in "chat 

rooms" or "instant messaging," but did consider the precise 

use of e-mail at issue in this case. For the purposes of the 

Opinion, the Attorney General used the following definition: 

Electronic mail is commonly understood to be the 

electronic transmission of keyboard-entered 

correspondence over communication networks. An 

electronic mail system enables the sender to 

compose and transmit a message to a recipient's 

electronic mailbox, where the message is stored 

until the recipient retrieves it. The message 

may be sent to several recipients at the same 

time. 

Id. at 13. Concluding that "[t]ransmitting messages through 

an electronic mail system is essentially a form of written 

communication," the Attorney General opined that such 

communication does not constitute a "meeting" under FOIA. Id.

While it is not binding on this Court, an Opinion of the 

Attorney General is "entitled to due consideration." 

Twietmeyer v. City of Hampton, 255 Va. 387, 393, 497 S.E.2d 

858, 861 (1998). This is particularly so when the General 

Assembly has known of the Attorney General's Opinion, in this 

case for five years, and has done nothing to change it. "The 

legislature is presumed to have had knowledge of the Attorney 

 6

 The question was premised upon FOIA prior to its 

recodification in Title 2.2 of the Code of Virginia. The 

language involved is substantially the same in the 

recodification. See Code §§ 2.1-340 to –346.1 (1968). 

11
General's interpretation of the statutes, and its failure to 

make corrective amendments evinces legislative acquiescence in 

the Attorney General's view." Browning-Ferris, Inc. v. 

Commonwealth, 225 Va. 157, 161-62, 300 S.E.2d 603, 605-06 

(1983). 

We hold that the trial court erred in its determination 

that the e-mail communications at issue in this case 

constituted a "meeting" under FOIA. Count XI of Shelton's 

petition must fail because it is premised upon e-mail 

communications constituting a meeting under FOIA. 

E-mails Concerning Historic Preservation 

In Count XIV of Shelton's petition, it is alleged that a 

"meeting" took place by e-mail communication between at least 

three members of City Council. The trial court granted 

summary judgment to Defendants, holding that the alleged 

meeting was for information purposes only and was not for the 

purpose of discussing public business. Shelton assigns crosserror to the trial court's holding. Shelton argues that the 

trial court too narrowly construed what it means to "discuss" 

the public's business. It is unnecessary to address this 

assignment of cross-error because we have held that the e-mail 

communications at issue in this case do not constitute a 

"meeting" under FOIA. 

The Charlotte Street Gathering 

12
 In July 2002, citizens living near the intersection of 

Charlotte and Weedon Streets in the City of Fredericksburg 

were concerned about the lack of a stop sign at the 

intersection and other issues related to traffic safety. Two 

city employees and three members of City Council were 

separately invited by concerned citizens to attend a gathering 

at the intersection in the middle of the day on July 25, 2002. 

Approximately 20 people were in attendance. After hearing 

testimony and the arguments of counsel, the trial court found 

as a matter of fact that the gathering was 

scheduled as a consequence of citizen inquiry; 

that the meeting's purpose, in essence, was an 

informational forum in reference to traffic 

issues in a given neighborhood or on a specific 

street; that the three members of Council who 

appeared did not, according to the testimony 

which is uncontradicted, . . . discuss anything 

with each other as a group of three or otherwise. 

 On appeal, Shelton maintains that such a gathering was a 

"meeting" under the terms of FOIA. We disagree. The public 

policy of the Commonwealth "ensures the people of the 

Commonwealth ready access to public records in the custody of 

a public body or its officers and employees, and free entry to 

meetings of public bodies wherein the business of the people 

is being conducted." Code § 2.2-3700(B). But FOIA "shall not 

be construed to discourage the free discussion by government 

officials or employees of public matters with the citizens of 

13
the Commonwealth." Id. Obviously, the balance between these 

values must be considered on a case-by-case basis according 

the facts presented. Here, FOIA gives additional guidance: 

Nothing in this chapter shall be construed to 

prohibit the gathering or attendance of two or 

more members of a public body (i) at any place or 

function where no part of the purpose of such 

gathering or attendance is the discussion or 

transaction of any public business, and such 

gathering or attendance was not called or 

prearranged with any purpose of discussing or 

transacting any business of the public body or 

(ii) at a public forum, candidate appearance, or 

debate, the purpose of which is to inform the 

electorate and not to transact public business or 

to hold discussions relating to the transaction 

of public business, even though the performance 

of the members individually or collectively in 

the conduct of public business may be a topic of 

discussion or debate at such public meeting. 

Code § 2.2-3707(G). 

The trial court was not plainly wrong or without evidence 

to support its judgment that the Charlotte Street gathering 

was a citizen-organized "informational forum" and that no part 

of the purpose of the gathering or attendance was the 

discussion or transaction of any public business. The 

undisputed evidence at trial was that City Council did not 

have any business pending before it on the issue of traffic 

controls, nor was it likely to have such matters come before 

it in the future. The trial court did not err in granting 

summary judgment to Defendants on Count XVII. 

Conclusion 

14
 The trial court did not err in granting summary judgment 

for Defendants on Counts I - IX of Shelton's petition. These 

counts were premised upon FOIA being applicable to memberselect of a public body. Members-elect are not "members" under 

the plain language of Code § 2.2-3701. Count XI of Shelton's 

petition is premised upon e-mail communications constituting a 

"meeting" under FOIA. Under the facts of this case, such email communications did not constitute a "meeting" under FOIA, 

and the trial court erred in holding that they did. The trial 

court granted Defendants' motion for summary judgment on Count 

XIV on the basis that the e-mails were for informational 

purposes and did not constitute a meeting. We need not 

address this reason for the trial court's holding because we 

have already concluded that e-mail communications in this case 

did not constitute a "meeting" under FOIA. Finally, the trial 

court did not err in holding that the Charlotte Street 

gathering was not a "meeting" under FOIA. We will affirm the 

trial court's judgment with respect to Counts I-IX and XVII. 

We will affirm the trial court's judgment with respect to 

Count XIV, albeit for different reasons. We will reverse the 

trial court's judgment with respect to Count XI. Having 

disposed of all matters, and nothing remaining for the trial 

court to consider, we will enter final judgment for 

Defendants. 

15
Affirmed in part, 

reversed in part,

and final judgment. 

16