Court dismisses suit by parent charging local school board violated Virginia’s FOIA while deliberating closure of elementary school

A Fairfax County Circuit Court judge dismissed a lawsuit filed by a  parent that accused the Fairfax County School Board (FCSB) of violating the Virginia Freedom of Information Act (FOIA) while deliberating the closure of Clifton Elementary School last year, says the Washington Post. Jill DeMello Hill’ s suit charged that FCSB conducted secret meetings through e-mails and failed to produce public documents relevant to the decision, and, as a result of those FOIA violations tainted the democratic process enough to warrant overturning the board’s controversial decision last July to close the school.

Judge Leslie M. Alden found that the board’s e-mail traffic about the school did not amount to a clandestine meeting. Although the judge did rule that FCSB and School Superintendent Jack D. Dale’s administration had violated other FOIA provisions on open meetings or public disclosure, she also held that the violations were too minor to justify disturbing the board’s decision. The judge concluded that although board members sent dozens of e-mails to each other debating the merits of closing the school, up to and during the July 8 meeting itself when the vote was taken, the intervals between those e-mails were large enough that the communication could not be construed as a “virtually simultaneous interaction” that would amount to a secret meeting among themselves.

Judge Alden, however, found that the board violated open meetings provisions by allowing one of its members, Patricia S. Reed, to participate from a remote location by watching as the meeting was live-streamed over the Web and sending e-mails to other members during the proceedings. The judge, who noted that FOIA allows public officials to participate electronically from remote locations with proper public notice, also held that Reed’s involvement in the meeting was minimal and had no real bearing on its outcome.

The judge found that the superintendent’s office violated the FOIA law by improperly attempting to shield some public documents from disclosure, failing to produce the requested public documents in a timely manner, and improperly attempting to charge fees in advance of the search. She also said that the district violated the FOIA law by sending the documents through the U.S. mail instead of sending them electronically, as requested, thereby further delaying their delivery by almost a month. Nonetheless, she concluded that these, too, were minor violations because the plaintiff eventually received the documents and because the documents did not have a substantial bearing on the board’s decision.

Responding to the decision, Hill’s attorney, T. Michael Guiffre, said, “The dangerous thing, the bigger lesson here, is that the board now knows they can continue doing business as usual.” He added,  “Why did the board spend tens of thousands of dollars to keep the documents out of view when the court termed them meaningless?” Guiffre also said that no decision has been made yet on whether to appeal the court’s decision.

Source: Washington Post, 7/16/11, By Fredrick Kunkle

[Editor's Note: In October 2010, Legal Clips provided a summary of a news article in the News & Observer reporting that Attorney Ann Majestic had advised members of the Wake County school board not to send text messages, instant messages or e-mails about board business while meetings are in progress. Majestic, noting that the board is entering new areas of law because of technology, said the general rule should be to make open any communication that covers deliberations.]

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