E-mail correspondence among school board members prior to the controversial closing of a public elementary school did not constitute secret meetings that violate Virginia’s Freedom of Information Act, the state Supreme Court ruled Thursday.
The court affirmed a lower court’s decision that the exchange of e-mail messages by Fairfax County School Board members in 2010 did not constitute a meeting under FOIA because “they did not involve sufficient simultaneity and did not result in any group consensus or discussion of business by any three members of the Board."
The majority of the e-mail communications were sent several days prior to or on the day of a public meeting in which the board voted to close Clifton Elementary School. Board members also discussed the issue by telephone and in person in the days leading up to the vote.
Jill DeMello Hill, who hoped to force a re-vote on the school's closure, filed a FOIA request with the district seeking documents related to the vote. According to news reports, Hill is a Clifton Elementary parent.
Based on records of e-mail messages she received, Hill alleged that the board conducted a secret meeting in violation of the open meeting requirements of the state FOIA. She filed a petition asking a lower court to order the board to conduct another public meeting and reconsider the school closure issue.
Virginia state law defines "meetings" in part as "an informal assemblage of (i) as many as three members, or (ii) a quorum, if less than three, of the constituent membership . . . of any public body."
The court cited a 2004 state Supreme Court case wherein the court ruled that e-mail exchanges constitute an "assemblage" where the interactions take place with "simultaneity," such as in the case of instant messaging.
Hill maintained that the e-mail messages "were in the nature of an ongoing discussion involving multiple participants." In light of the "sheer volume" of correspondence exchanged during that "compressed time period," and "considering the time it takes to receive an e-mail, read it, draft a response and send it," Hill argued in court that "it is difficult to fathom e-mail exchanges that would better meet the simultaneity requirement."
However, the court agreed with the lower court's finding that the e-mail messages "did not involve sufficient simultaneity to constitute a meeting."
While some of the e-mail messages did involve "back-and-forth exchange," the court found that they did not constitute a meeting because they "were between only two members at a time, rather than the three required."
Even though some e-mail messages were sent to more than two board members directly, by carbon copy and forwarding, these messages "conveyed information unilaterally, in the manner of an office memorandum," rather than generating "group conversations or responses with multiple recipients," according to the court.
District spokesman John Torre, said they are pleased the court agreed "that the school board’s actions were fully within the law.”
Hill could not be reached for comment.
Related Reporters Committee resources:
· Virginia – Open Government Guide: 1. Does e-mail constitute a record?
· Virginia – Open Government Guide: D. What constitutes a meeting subject to the law.