The Clarke County School Board sought guidance and clarification on Friday regarding the appropriate procedures for using electronic mail to conduct public business. Generally, local public bodies may not meet or cast votes by electronic means. However, electronic mail can be a useful communication tool provided it is used within the legal constraints of Virginia’s Freedom of Information Act. Maria J.K. Everett, a lawyer and Executive Director of the Virginia Freedom of Information Advisory Council, spent nearly two hours providing instruction and answering “what-if” questions from the School Board.
At issue is the reluctance of several School Board members to rely on electronic mail to discuss school business. “There is a difference in opinion on how School Board members can comment on school matters by e-mail,” said School Board Chairperson Robina Bouffault. “On the one hand we’re encouraged to communicate but sometimes we communicate too much.”
Established by the Virginia General Assembly, the Virginia Freedom of Information Advisory Council was created to encourage and facilitate compliance with the Freedom of Information Act (FOIA). Everett said that she conducted nearly 60 similar training sessions in 2009.
Everett provided the School Board with three primary guidelines for insuring that FOIA laws aren’t violated.
First, Everett assured the School Board that there are no prohibitions against communicating by electronic mail provided that the e-mail system is used like conventional mail rather than a telephone. “If you use e-mail like you would the post office you don’t have any FOIA problems. When e-mail starts being used like a conference call that’s a problem.”
Everett cautioned the School Board against using the common e-mail “reply-to-all” feature which can lead to a simultaneous discussion if several School Board members are on-line at the same time.
Next, Everett suggested that School Board members not respond immediately to each other’s e-mail messages. Delayed e-mail responses will ensure that the discussion is more consistent with postal mail. School Board member Emily Rhodes (Buckmarsh) suggested that e-mail sufficiently separated communication time slots could be assigned to each School Board member to ensure that simultaneous discussions don’t occur.
Everett suggested that the School Board adopt the “Noah’s Ark Rule” in managing on-line discussions. “Think of your e-mail messages in terms of “2-by-2”” Everett said. “Send your message to two people then forward the replies to a different pair of recipients.”
Everett encouraged the School Board to err on the side of caution when making decisions about conducting public business. “Everyone thinks the worst of government whether we deserve it or not. The litmus test is this; If you think that a communication may constitute a public meeting then it probably does.”
The intent of FOIA is to ensure free entry to meetings of public bodies where the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.
The Clarke County School Board is not the only Virginia jurisdiction wrestling with how to best conduct business in an evolving electronic environment. Everett said that the City of Virginia Beach has adopted a “no e-mail” policy for elected officials when conducting public business.
In 2009, a Loudoun County citizen sought records of all communications, including e-mail, between several County Supervisors and other individuals. The Loudoun Supervisors provided some records but withheld personal emails, asserting that the messages were not public records because they were not in the transaction of public business. The citizen initiated a FOIA petition seeking all of the Supervisors’ records to and from the named individuals regardless of whether the contents were asserted to be personal in nature. A General District Court ruling held that the Supervisors must turn over all electronic mail messages, including those that the Supervisors asserted were not in the transaction of public business. On appeal the Circuit Court indicated that records not in the transaction of public business were not public records subject to FOIA, but the Supervisors must create a log, indicating which records were being withheld, and in sufficient detail that the Circuit Court could ascertain whether the withheld records were in fact matters in the transaction of public business or not. The Loudoun FOIA case was subsequently withdrawn by agreement with the citizen prior to a final ruling by the Circuit Court.
Everett told the School Board that nothing prohibits separately contacting the individual members for the purpose of ascertaining a member’s position with respect to public business. Such contact is permissible whether done in person, by telephone, or by electronic communication, provided the contact is done on a basis that does not constitute a meeting.
Everett said after the meeting, that her training is intended to help public officials understand the circumstances that constitute a public meeting. Willful or knowing violation of public meeting laws can result in monetary penalties assessed against the official and are not covered by public insurance policies.
Of course, avoiding public meeting conflicts is only one aspect of managing FOIA requirements. “Anything that is written down is still FOIA-able” Everett said. “The consequence of using e-mail is that it creates a public record that can sink your ship if you’re doing something wrong.”