Beyond The Docket Part II: Landmark FOIA Case Reveals Contentious School Board E-mails

Beyond the Docket is a two-part series looking at court documents filed in the case between Clifton resident Jill Hill and Fairfax County Public Schools and its school board. This segment examines how the court's ruling could affect state FOIA law. To read the first article, .

A ruling that says e-mails exchanged between Fairfax County School Board officials are no different than a meeting could change the way public officials use e-mail before, during and after major decisions, and also inspire new legislation about how e-mails are defined under the state’s Freedom of Information Act or FOIA.

“A ruling in the plaintiffs' favor would probably lead to a lot of confusion over exactly how much time can or should elapse between responses to avoid being called a meeting,” said Megan Rhyne, associate director of the Virginia Coalition for Open Government. “That confusion could prompt requests for the legislature to address the issue by amending Virginia’s Freedom of Information Act (FOIA).”

Clifton resident Jill Hill accused Fairfax County Public School officials in court this week of using e-mail to hold “secret meetings” during a July public meeting about the closing of Clifton Elementary School. 

This is only the second time a Virginia court has examined where exactly digital communication, such as e-mail, falls under FOIA, Rhyne said.

Virginia’s FOIA does not allow public officials in Virginia to hold meetings via e-mail, though they are permitted to hold meetings via audio or combined audio and video equipment, most often as a way to further public engagement. 

The laws say e-mail communication is public record, but the section that defines a meeting lists only audio or combined audio and video as electronic communication; whether e-mail constitutes a meeting is left up to the court. 

Washington, D.C.’s Sunshine Act does not define a meeting; any meeting that includes official action is subject to the act. Maryland and West Virginia laws do not specifically address e-mail communication, either.

Rhyne said the question first came before Virginia’s courts in the 2004 case Beck v. Shelton. The plaintiffs alleged that Fredericksburg City Council members used e-mail to discuss and make decisions about public business, which they said was an improper meeting that violated Virginia FOIA laws.

The Virginia Supreme Court issued an opinion in that case stating e-mails don’t inherently constitute a meeting, but could if they were exchanged in real-time. In Beck v. Shelton, the shortest span of time between e-mails among council members was four hours. The time gap made the discussion more akin to exchanging letters, which are considered correspondence and not subject to the same rules FOIA prescribes for meetings, according to a Virginia Legislative Issue Brief about the case.

E-mails in the nature of real-time or instant conversation, the opinion said, can “be used to communicate quickly with multiple people at once,” making it no different from a phone call or a meeting. 

Public officials need to refrain from exchanging e-mails between three or more members of the group “in a manner that is akin to using the telephone and has an element of simultaneity,” according to documents about the case from the Virginia Freedom of Information Advisory Council.

Plaintiffs in the FCPS case would have to prove to Judge Leslie Alden that board members' e-mails were exchanged in a rapid succession that amounts to a simultaneous exchange, Rhyne said. Otherwise, e-mail is the "functional equivalent of letter communication by ordinary mail, courier, or facsimile transmission,” according to the court.

This week, lawyers for FCPS said the e-mails exchanged between board members were not rapid in nature.

“You don’t have a meeting unless you have three people talking to each other simultaneously," Raphael said. "The rule they’re advocating is that local government officials can’t talk to each other. It’s unprecedented.”

The Beck v. Shelton opinion did not determine what amount of time would make e-mails instant or simultaneous, nor did it mention the use of listservs, chat rooms or instant messaging, the brief said.

Outside of Virginia, the State of Washington Court of Appeals ruled in the 2001 case Wood v. Battleground School District that e-mails exchanged about Board business -- including the decision to terminate the school systems’ communications coordinator-- were considered meetings. They were defined as “meetings in which action was taken,” regardless of the medium through which they were conducted. School board members were found guilty of violating the state’s sunshine laws.

Lawyers at this week’s FCPS hearings also referenced a 1985 ruling by California’s Third District Court of Appeals, in which city officials were found guilty of violating open meeting laws by participating in one-one-one telephone polls “for the purpose of obtaining a collective commitment or promise” to approve a property ownership transfer. The poll was not held at a regular or special meeting of the officials, nor was the public given notice of it, according to court documents. In its opinion, the court said that a series of telephone conversations held through the same mediator is considered a meeting. 

“Deliberations had already occurred outside of the public meeting,” said T. Michael Guiffre, of Patton Boggs in Washington, D.C., one of Hill’s attorneys, referring to the July 8 meeting that board members voted to close Clifton Elementary School. “E-mail can be defined as immediate. You can look at an e-mail and see if it’s a ‘letter’ or a conversation. If it rises to the level of a conversation, at that point it’s a meeting. They’re [the school board] finding a way to skirt the law.”

E-mails obtained by Hill show communication about the closing of Clifton Elementary before and during a public meeting in which the board voted to shut down the school.

School Board members exchanged at least five e-mails with each other during the July 8 meeting. The e-mails show members asking others how they plan to vote on the CES issue. One string of e-mails tells how School Board members decided to delay telling the public that the school’s expensive well-water problem was no longer an issue.

“It can wait until tomorrow! I checked with Kathy and she agrees. GOOD GRIEF! Does she not realize we are in the middle of a meeting?” School Board member Tessie Wilson wrote.

In court this week, attorneys for the Fairfax County School Board played a video of the July 8th meeting, showing that the well water problem was discussed openly during the meeting before the vote and that board members and members of the public at the meeting knew it was no longer an issue. The new report about the well water had only been made available that afternoon.

Other e-mails starting July 1 and leading up to the meeting reveal a divided Board gauging each others’ opinions on closing CES, with a few trying to come up with an alternative or elicit support. The e-mails get contentious at times when board member Tina Hone tries to postpone the closing.

Below is a timeline of some of the e-mails exchanged during that period. All are e-mails. Click here to read the court records and e-mails in full.

July 1

• 8:45 a.m. Fairfax Education Coalition member Kim Farrell suggests an amendment that would postpone CES closing. Sends her suggestion to School Board member James Raney.

• 10:01 a.m. Raney forwards message thread along to School Board member Liz Bradsher asking if Bradsher wants to work on amendment with Clifton folks. No response is given.

July 6

• 7:25 p.m. Hone sends her plans for the amendment to all School Board members and cc’s Pam Goddard (executive assistant and clerk to the Board of Supervisors, Superintendent Jack Dale and Chief Operating Officer Dean Tistadt.
• 7:47 p.m. School Board member Stuart Gibson e-mails Bradsher. "Please tell her and the rest of us you do not support this. No one should get the wrong idea."

July 7

• 8:22 a.m. Hone sends Bradsher an e-mail saying, “Don’t lock yourself in a box. I see you struggle and agonize over equity and I admire you for it. But fairness and equity aren’t the same. ...This is about the 1,300 kids and more outside Clifton. That is the real crisis. Closing Clifton does not meaningfully contribute to fixing that challenge. And keeping it open—without spending taxpayer dollars on renovations—does not hurt those 1,300 kids. We can fix the overcrowding without hurting Clifton or wasting taxpayer money. It is the win win win.”
• 8:26 a.m. Bradsher forwards Hone’s message to Gibson. “I just got this from Tina—keep it to yourself but I thought you might appreciate reading it due to our telephone conversation this AM.” Gibson responds two minutes later. “The height of arrogance and selfishness. Hang in there.”
• 1:11 p.m. Raney e-mails Hone saying he's leaning toward closing the school. 10 minutes later he forwards that to Bradsher, no response.
• Meanwhile... 12:52 p.m. Smith asks Tistadt a question.
• 1:25 p.m. Tistadt sends response to Smith, Wilson, Bradsher. He talks about the pros/cons to renovating/closing.
• 2:57 p.m. Bradsher responds to Tistadt saying, "I owe you a keg!"
• Meanwhile... 2:49 p.m. Bradsher forwards Smith, Gibson, Wilson the previously mentioned July 7 and 6 emails, telling them "FYI - please do not forward." Wilson responds "...We're watching your back!"
• 8:06 p.m. Raney emails Bradsher saying, “...I have told Tina I will support her amendment. If it fails I will support the motion to close CES.”
• 9:29 p.m. Bradsher forwards Raney’s message to Wilson and Gibson with the message, “No further please.”
• 9:46 p.m. Bradsher emails Tistadt. “We have the votes to close and holding on this. Tomorrow at the meeting Brad is going to ask staff a question on enrollment and projections. Please know that we will need a strong answer from staff on the response in particular, Clifton’s decline. I told Brad we do projections far more differently than years ago and Larry is fairly confident about his research and projections. This needs to be conveyed at tomorrow’s meeting. I have an early morning meeting but will have my phone with me if you need to talk to me. This is very difficult! :-(“

July 8 - Day of School Board public work session and forum on Board topics

• 6:10 p.m. School Board meeting starts
• 7:12 p.m. Tistadt emails all School Board members, as well as Dale, Richard A. Moniuszko, Denise James, Kevin Sneed and Fred Ellis. He says the well-water issue is now a non-issue.
• 7:25 p.m. Patricia Reed (who was not present at the meeting) emails Goddard asking if Tistadt’s report should be made available to the public. Hone sends a different email at the same time, to Dan Storck. The subject line reads, “So...”
• 7:29 p.m. Goddard emails Wilson, Smith asking when and where they’d like the well-water report posted.
• 7:32 p.m. Wilson responds. “It can wait until tomorrow! I checked with Kathy and she agrees. GOOD GRIEF! Does she not realize we are in the middle of a meeting?”
• 8:14 p.m. Storck emails Brad Center. The subject line reads, “Where are you on this Amendment?” Center responds, “I am leaning towards supporting Liz but it is not an easy decision--I am still listening.”
• 9:58p.m. Meeting ends.

Mary Ann Barton also reported for this story.