A Joint Presentation for the VSBA November 18, Mary McGowan Blankingship & Keith

Transcription

1 A Joint Presentation for the VSBA November 18, 2010 Mary McGowan Blankingship & Keith Michael R. Packer School Board Attorney Chesterfield County Public Schools

2 Chap. 37 Virginia Freedom of Information Act, Short title; policy. A. This chapter may be cited as "The Virginia Freedom of Information Act." B. By enacting this access chapter, the to General public Assembly records ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officersfree and employees, entry and to free meetings entry to meetings of public bodies wherein 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. Unless a public body or its officers All public or employees records specifically and elect meetings to exercise shall an exemption be provided by this chapter or any other statute, every meeting shall be open topresumed the public and all open, public records unless shall an be exemption available for inspection is and copying upon request. All public records and meetings shall be presumed open, properly unless an exemption invoked. is properly invoked.

3 PURPOSE OF THE ACT Affairs of government not to be conducted in an atmosphere of secrecy Provisions of FOIA to be interpreted in favor of openness and against public body

4 "Public records" TEXT

5 Definitions. As used in this chapter, unless the context requires a different meaning: "Public records" means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. in the possession of a public body or its officers, employees or agents in the transaction of public business.

6 Virginia Code (Continued) The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

7 Notice of chapter. Any person elected, reelected, appointed or reappointed to any body not excepted from this chapter shall (i) be furnished by the public body's administrator or legal counsel with a copy of this chapter within two weeks following election, reelection, appointment or reappointment and (ii) read and become familiar with the provisions of this of this chapter. chapter.

8 ACCESS TO RECORDS All public records open to inspection and copying, unless exempt. Common exemptions: Personnel records for identifiable individuals; Written advice of legal counsel, records protected by the attorney-client privilege; legal memoranda and other work-product compiled exclusively for use in litigation or for use in an active administration properly the subject of a closed meeting; Student records and testing materials;

9 ACCESS TO RECORDS cont d Working papers and correspondence of Superintendent (once shared with School Board or others, loses exemption); Records recorded in, or compiled exclusively for, closed meetings; Vendor proprietary information software; Records relating to the negotiation and award of specific contracts; but only where the release would adversely affect the public body s bargaining position or negotiating strategy; Terrorist response plans and information;

10 ACCESS TO RECORDS cont d Security system features and plans; Specific assessment components of school safety audits conducted by Division or by School Safety Audit Committee; Investigative records from an active investigation of individual employment discrimination complaints or other discrimination complaints being investigated by the local Human Rights Commission; Appraisals and cost estimates of real property subject to proposed purchase, sale, or lease; Certain Auditor s Records.

11 4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc. Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing:

12 FOUR POSSIBLE ANSWERS (1) Records withheld under exemption (must cite with reasonable particularity the volume and subject matter of withheld records, and each statutory exemption) (2) Records provided in part, withheld in part (same reasonable particularity and cite to exemption requirement) (3) Records can t be found or don t exist (4) Not practically possible to provide or determine availability of records within 5 work-day period and (must specify reasons) need to invoke 7 work-day extension

13 ACCESS TO RECORDS cont d Must work with citizen to clarify vague requests Can only charge for costs of accessing, duplicating and searching o If over $200, may request deposit in amount of advance determination o Covers electronic records also o Does not require production of information

14 S!!! From: Irate School Board Member To: Other School Board Members Date: Thursday, October 28, 3:00 p.m. Subject: Our Board Chairman If that idiot cuts me off in one more meeting when I am trying to make it obvious to the voting public that I am singlehandedly responsible for reducing the superintendent s ridiculously-inflated budget, I ll quit the School Board.

15 VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA AO April 7, 2004 For the purposes of , it does not matter if the record is composed or received on a private computer or at a private e- mail account -- if it is sent or received by a public official, such as a member of the Board of Supervisors, and concerns public business, then it is a public record under FOIA.

16 IN THE SUPREME COURT OF VIRGINIA BILL BECK, ET AL. v. GORDON SHELTON, ET AL. 267 Va. 482, 593 S.E.2d 195 Decided: March 5, 2004 There is no question that s fall within the definition of public records under Code As previously stated, the issue in this case is whether the exchange of e- mail also constitutes a meeting under FOIA.

17 WHAT IS A MEETING UNDER FOIA? Any assemblage of three or more members of a public body at which public business is discussed, is considered a meeting under the Act. Social events are expressly excluded from definition of meeting, if: (1) no part of the purpose of the gathering is the transaction or discussion of matters of public business; and (2) the meeting is not pre-arranged for such a purpose.

18 Examples of meetings falling under FOIA: Includes meetings of any committee, subcommittee or other entity, however designated, created to perform delegated functions or to advise the public body o Safe Schools Advisory Councils o Special Education Advisory Councils o School Board Audit Committees

19 s: Beck v. Shelton, 267 Va. 482 (2004) Alleged that: Mayor, Vice-Mayor and three City Councilmen deliberately ed each other, held face-to-face meetings, and conducted a public gathering on streets of Fredericksburg, in violation of FOIA Held: Members of public body do not include members-elect

20 s cont d Did s constitute an illegal meeting? Analysis of traditional communication by letter, with significant delay in receipt and response, vs. computerized communications Computers can be utilized to exchange text in the nature of a discussion, potentially involving multiple participants, in chat rooms or by instant messaging, where communication virtually simultaneous

21 s cont d Held: Here, s did not involve virtually simultaneous communication, but were more like letters Shortest interval between sending and receiving was more than four hours, longest was two days No simultaneity when used as functional equivalent of letter communication by ordinary mail, courier, or facsimile transmission.

22 s cont d? When does an communication to multiple recipients become simultaneous?? When it is sent, and replied to, in 1 hour? 30 minutes? 15 minutes? Less?

23 Beck v. Shelton, cont d Public gathering issue o o o Three members of City Council and 2 City Employees met at intersection with concerned citizens regarding traffic safety issues Purpose of FOIA to encourage free entry to meetings of public bodies FOIA not to be construed to discourage free discussion by government officials of public matters with citizens Held: No meeting because: Gathering requested by citizens Purpose was an informational forum on a specific issue The members did not discuss anything with each other as a group of three City Council had no business pending before it, nor likely future business, regarding traffic controls

24 POLLING Va. Code permits separate contact with the public body, or any part thereof, for the purpose of ascertaining a member s position with respect to the transaction of public business, including communications by telephone or . Separate contact means that there can be no communication by three or more members at one time, or such contact may fall into FOIA s definition of a meeting. Public body may reach consensus during poll. Action must be taken in open meeting to carry out purpose of poll. Poll s and documents are public records, unless subject is exempt.

25 CLOSED SESSION MEETING REQUIREMENTS Must vote in open session to enter closed session before doing so Motion to Enter Closed Session must o Identify every item of business, and for each: State subject matter State purpose Cite statutory exemption Must confine discussion to items identified in Motion to Enter Closed Session

26 Exempt Topics for Closed Session: Personnel discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplinary, or resignation of specific public officers, appointees, or employees of any public body. Student matters involving the disclosure of information contained in a student s educational record. Real property discussion/consideration of the acquisition of real property for a public purpose, but only where discussion in open session would adversely affect the bargaining position or negotiating strategy of the public body.

27 Legal (1) consultation with legal counsel and briefings by staff or consultants pertaining to actual or probable litigation, where such consultation/briefing in open meeting would adversely affect negotiating or litigating posture; or (2) consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring legal advice by such counsel. Testing discussion of tests, examinations Public Safety discussion of plans to protect public safety as it relates to terrorist activity or to security of any governmental facility structure or building or safety of persons using the same.

28 Public Contract Awards discussion of the award of a public contract involving the expenditure of public funds, including interviews of offerors or bidders, and discussion of terms or scope of such contract, where discussion in open session would adversely affect bargaining position or negotiating strategy.

29 White Dog Publishing, Inc. v. Culpeper County Board of Supervisors, 272 Va. 377 (2006) Dispute over construction of new high school School Board and County Board of Supervisors differed on design, County made itself a party to contract for construction of school and attempted to change plans County Board met in closed session to discuss an amendment to building contract Motion: Discussion with the County Attorney and staff [about] changes to a specific public contract where public discussion would adversely affect the bargaining and negotiating position of the County. Wording of motion typical of all motions drafted by County Attorney

30 Closed session (non-public) agenda more specific, included: Discussion with the County Attorney, staff and consultants [about] a change in the scope of work to be provided by SHW Group, Inc., under the architect s contract and the impact of new data on that change in scope. Open Session Action: that pursuant to the second Amendment to the SHW Group, Inc. Agreement... the Board request[s] SHW to review the following options: (1) using SHW s Option B to create instead of [a] 1,200 expandable-student school to create a 1,000 expandable-student school; and (2) to create a 2,400 student high school at the present high school site or two 1,200 student high schools at the same site.

31 Held: (1) Motion to Enter Closed Session violated FOIA did not identify the contract at issue did not state purpose of going into closed session did not cite code section for exemption (2) Could not use exemption for discussion of public contracts where discussion in open session would adversely affect bargaining position or negotiating strategy because: (3) Exemption only applies when awarding, forming, or modifying a public contract, and not when contract already awarded, and discussion is to get architect s candid view, in order to negotiate with School Board

32 SCOPE OF DISCUSSION IN CLOSED SESSION Marsh v. Richmond Newspapers, Inc., 223 Va. 245 (1982) Joint meeting with Richmond City Council, Chesterfield BOCS, and Henrico BOCS to discuss issues pertaining to construction of I-295 Motion to Enter Closed Session: to discuss issues pertaining to the construction of the I-295 Circumferential Highway and other matters relating to regional cooperation... Consideration of these subjects necessarily involve[s] legal matters within the jurisdiction of the City. (Cite to (6) included)

33 Subsequent press release revealed closed session discussion of: o Location and construction of highway o Probable effect of highway on future development o Effect of recent legislation on the three jurisdictions o Relative tax burdens o Cost of regional services provided by City o Procedures for counties to participate in such costs Held: FOIA Violated (1) Motion to Enter complied with FOIA, but (2) Closed meeting discussion ranged beyond exempted topic ( legal matters or potential or actual litigation )

34 MOTION CERTIFYING CLOSED SESSION Va. Code : At the conclusion of any closed session meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body certifying that to the best of each member s knowledge, (i) only public business matters lawfully exempted from open meeting requirements under the chapter, and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body.

35 Any member of the public body who believes there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body.

36 NOTICE AND AGENDA REQUIREMENTS Notice Public must be given notice at least three working days before a meeting, of the date, time, and location of the meeting, by posting of the notice in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body. May also gives timely notice of its meetings through its Website and the Electronic School Board. Electronic notice alone not sufficient.

37 Agendas Agenda packets and materials, unless exempt, shall be made available to the public at the same time such documents are furnished to members of the public body

38 ENFORCEMENT OF FOIA VIOLATIONS Petition for mandamus or injunction in General District or Circuit Court Violation not criminal in nature, but Commonwealth Attorney has authority to bring a civil suit to enforce the Act, and citizens may file civil suit Civil penalties. Knowing violation of the Act by a member of a public body: $250 to $1000 for first violation. Subsequent violations: $1,000 to $2,500. Penalty is imposed on member in his individual capacity, and not paid from public funds Petitioner entitled to recover attorney s fees and costs, including expert witness fees, from public body unless special circumstances make such award unjust

39 Violations and penalties. In a proceeding commenced against members of public bodies under for a violation of , through , , , , , or , the court, if it finds that a violation was willfully and knowingly made, willfully and knowingly shall impose upon such member in his individual capacity, whether a writ of mandamus or injunctive relief is awarded or not, a civil penalty of not less than $250 nor more than $1,000, which amount shall be paid into the State Literary Fund. For a second or subsequent violation, such civil penalty shall be not less than $1,000 nor more than $2,500.

40 1. Susie is in the fourth grade. Her mother believes that Susie s low grades are a result of the rivalry the mother had with Susie s teacher for the affection of a young man that they both knew in high school. Susie s mom insists to see all of Susie s grades in the teacher s grade book and all of the grades of the other students in the class. These are all public records and, accordingly, Susie s mom is entitled to see them. TRUE FALSE

41 Exclusions to application of chapter; educational records and certain records of educational institutions. The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: 1. Scholastic records containing information concerning identifiable individuals, except that such access shall not be denied to the person who is the subject thereof, or the parent or legal guardian of the student. However, no student shall have access to (i) financial records of a parent or guardian or (ii) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto, that are in the sole possession of the maker thereof and that are not accessible or revealed to any other person except a substitute.

42 2. The Commonwealth of Virginia has graciously deeded to Chesterfield County land needed to locate two new public schools. While conducting preliminary field work on the donated property, employees of Chesterfield County Public Schools discover the remains of a Confederate arsenal with thousands of artifacts worth millions of dollars. The superintendent wants to inform the school board but knows that the discovery must be kept a secret until the site is secured; otherwise, treasure hunters will plunder the booty. He calls a special meeting of the Board and suggests that it enter into a closed session to share the good news. He suggests that the board use the acquisition of real property section of the FOIA for this purpose. The Board can legally enter closed session for this purpose. TRUE FALSE

43 Virginia Code (continued) 3. Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body.

44 3. Because of hurricane Katrina, the NSBA meeting was moved to Moscow (the only place that could accommodate on such short notice). Since all the members attended, the Chesterfield County School Board decided to hold a work session there to discuss the possible implementation of Eastern European methods for educating Chesterfield County students. All notice requirements for the meeting were met. The meeting was in violation of the Virginia Freedom of Information Act because it was not held within the Commonwealth of Virginia and the United States. TRUE FALSE

45 4. The School Board has just completed its properly called closed meeting for student discipline cases. Before returning to open session, one of the members wants to discuss the applicants for the new Director of School Energy Conservation position. The clerk is not present so the member states that the Board will remain in closed session to discuss personnel matters, and he will inform the clerk later to include the proper language in the original motion to allow for the discussion of the personnel item. The discussion does not violate the Virginia Freedom of Information Act because the consideration of prospective candidates for employment is a listed purpose for which a closed session may occur. TRUE FALSE

46 Closed meetings procedures; certification of proceedings. A. No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in or subsection A of The matters contained in such motion shall be set forth in detail in the minutes of the open meeting. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.

47 Questions?