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

VIRGINIA — The exchange of emails by members of the Fairfax County School Board did not constitute a public meeting under Virginia’s Freedom of Information Act, the state Supreme Court ruled June 7.

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

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

Hill further alleged that the board had violated the FOIA by denying her access to certain records related to the closure, as well as failing 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 forth in the days leading up to the vote, most members limited themselves exclusively to one-on-one communication. Hill, however, believed that the large volume of messages sent in a relatively short period of time — coupled with the fact that some 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 was the issue of “simultaneity” in electronic communication. The court held that the 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 any group consensus or discussion of business by any three members of the board outside the context of a public meeting.”

The decision reinforced the major conclusion of Beck v. Shelton, a prior ruling by the court holding that, “while such simultaneity may be present when email technology is used in a ‘chat room’ or as ‘instant messaging,’ it is not present when email is used as the functional equivalent of letter communication by ordinary mail, courier or facsimile transmission.”

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

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

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

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

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

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

Mark Caramanica, freedom of information director for the Reporters Committee for Freedom of the Press, called the decision “very distressing at a time when it’s so easy to communicate electronically in instant fashion.”

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

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

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

The court’s ruling now becomes binding precedent in Virginia.

“The school board takes very seriously its obligations under the Freedom of Information Act,” Fairfax County School Board chair Janie Strauss said in a statement. “We are gratified that the Supreme Court has agreed that our members’ actions were fully within the law.”

By Seth Zweifler, SPLC staff writer

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