Email exchange between school board members not a public meeting, Va. high court rules

VIRGINIA — Theexchange of emails by members of the Fairfax County School Board did notconstitute a public meeting under Virginia’s Freedom of Information Act, thestate Supreme Court ruled June 7.

The state justices affirmed in Hill v. Fairfax County School Board a lower court ruling, whichheld that the school board was not at fault when it exchanged numerous emailsin the days leading up to a controversial vote in 2010 to close CliftonElementary School.

Jill DeMello Hill, a Clifton parent, had argued that theboard members’ emails constituted a secret meeting in violation of the state’sFOIA. Because of this, she contended that the school board should be requiredto conduct a new public meeting on the issue of whether to close CliftonElementary School.

Hill further alleged that the board had violated the FOIA bydenying her access to certain records related to the closure, as well asfailing to provide all of the records she had requested in a timely manner.

Under state law, a public meeting includes any sort of“informal assemblage” of three or more members of an elected body.

Although the board had sent numerous emails back and forthin the days leading up to the vote, most members limited themselves exclusivelyto one-on-one communication. Hill, however, believed that the large volume ofmessages sent in a relatively short period of time — coupled with the fact thatsome of the messages were forwarded along to more members of the board —constituted an illegal meeting.

The court disagreed.

Central to the court’s rationale in the June 7 decision wasthe issue of “simultaneity” in electronic communication. The court held thatthe emails had not amounted to a board meeting for the purposes of the FOIA“because they did not involve sufficient simultaneity and did not result in anygroup consensus or discussion of business by any three members of the boardoutside the context of a public meeting.”

The decision reinforced the major conclusion of Beck v. Shelton, a prior ruling by thecourt holding that, “while such simultaneity may be present when emailtechnology is used in a ‘chat room’ or as ‘instant messaging,’ it is notpresent when email is used as the functional equivalent of letter communicationby ordinary mail, courier or facsimile transmission.”

The board’s emails were akin to an office memorandum, SeniorJustice Lawrence Koontz, Jr. wrote in the unanimous decision.

The Supreme Court also upheld the lower court’s decision todeny Hill’s request for reimbursement of attorney’s fees.

Hill and her attorneys did not respond to multiple requestsfor comment before press time.

Sona Rewari, who represented the school district, applaudedthe court’s decision,

“It confirmed what we believed to be the correctinterpretation of the law,” she said.

Though Rewari did not disagree with the notion that emailexchanges have the potential to constitute instant communication, she arguedthat “there was no evidence in this case that such communication took place.”

Mark Caramanica, freedom of information director for theReporters Committee for Freedom of the Press, called the decision “verydistressing at a time when it’s so easy to communicate electronically ininstant fashion.”

He believes the ruling downplayed the responsiveness thatmany people have to email on their mobile devices today.

Caramanica added that the decision “certainly raises aneyebrow and violates the spirit and intent of open meetings law.”

While FOIA laws regarding public meetings vary across thecountry, Caramanica explained that some states are beginning to merely applyexisting statutes when determining whether electronic communication constitutesa meeting. He said this raises concerns, as it “may create gaps where peopletake advantage of the idea of ‘simultaneity.’”

The court’s ruling now becomes binding precedent inVirginia.

“The school board takes very seriously its obligations underthe Freedom of Information Act,” Fairfax County School Board chairJanie Strauss said in a statement. “We are gratified that the SupremeCourt has agreed that our members’ actions were fully within thelaw.”

By Seth Zweifler, SPLC staff writer