VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-09-06

October 25, 2006

Edward Hendrie
Stafford, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail of October 10, 2006.

Dear Mr. Hendrie:

You have asked whether a redistricting committee established pursuant to a policy of the Stafford County School Board (School Board) is a public body subject to the Virginia Freedom of Information Act (FOIA).¹ Noting that the School Board policy states that all Redistricting Committee meetings are open to the public, but that the meetings will not be publicized through mass media, you have also asked whether the redistricting committees must comply with the notice requirements set forth in § 2.2-3707 of FOIA. Further facts are set forth below.

According to Policy 7-12 Redistricting, as approved by the School Board March 8, 2005, when redistricting students is necessary, the superintendent will establish a committee to consider redistricting options. The policy states that redistricting committees are to be appointed by the superintendent. Membership is to include, but is not limited to, parent representatives appointed by the PTO/PTA from the impacted attendance zones, staff from the Stafford County Public Schools and School Board, the chairperson of the Long Range Planning Committee or a designee, teacher representatives elected by the teaching staff at each affected school, and student representatives elected by the student government at each affected school. The School Board shall give the committee a charge that will outline goals and objectives the School Board wishes to accomplish with the redistricting process and also serve as a guide for the committee as they arrive at proposed redistricting recommendations. Staff is to provide redistricting options for the committee to consider. After a period of review and analysis, the committee is to present preferred options to the superintendent; the superintendent then presents options to the School Board, including but not limited to those recommended by the Redistricting Committee. The School Board then holds public hearings on the options proposed. The policy also cites an excerpt from § 22.1-79 concerning the powers and duties of a school board as to the redistricting of school boundaries, among other enumerated statutory powers and duties of school boards.

FOIA defines a public body to mean any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds. It shall include ... any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members. A redistricting committee as described above is not a legislative body, authority, board, bureau, commission, district or agency. You did not indicate that such a redistricting committee receives any support from public funds, and without evidence of public funding it cannot be considered a public body by virtue of being supported wholly or principally by public funds.² Therefore a redistricting committee is not a public body under the first sentence of the quoted definition.

However, some of the facts presented suggest that such a redistricting committee might be a committee of a public body (the School Board) created to perform delegated functions of the public body or to advise the public body. The following facts support this position: the redistricting committee's membership is set forth in part by School Board policy; its function is governed by School Board policy; its function involves redistricting, a statutory power and duty of the School Board; it receives a charge regarding its function from the School Board; and, its recommendations are to be passed on to the School Board. By contrast, other facts indicate that a redistricting committee is not a committee of the School Board: committee members are appointed by the superintendent, not by the School Board; the superintendent may appoint members other than those specifically listed in the policy; the membership does not include any members of the School Board; several members are elected by other groups (the PTO/PTA, teachers, and students); and, a redistricting committee does not directly advise or perform any function of the School Board, acting only by proposing recommendations to the superintendent who then passes those recommendations - and possibly other recommendations as well - along to the School Board. The fact that there are citizen members of the redistricting committee is not dispositive, as the definition of public body specifies that a committee is not excluded because it has private sector or citizen members.

This fact pattern does not clearly answer the question whether a redistricting committee is a committee of the School Board (which would be a public body), or instead a committee that was created by and answers to the superintendent (which would not be a public body). It is not readily apparent whether the superintendent is acting in a purely administrative role at the direction of the School Board, or whether the superintendent's role in the creation and control of a redistricting committee is more substantive in nature. However, given the facts presented, the most telling factor in these considerations is that the redistricting committee only acts through the superintendent. Such a committee does not act directly on behalf of the School Board or interact directly with the School Board. Effectively, it appears that the superintendent acts as a filter or layer between the committee and the School Board. The redistricting committee does not in fact exercise any delegated function of the School Board, nor does it directly advise the School Board. Given these facts, a redistricting committee as described does not appear to be a committee of the School Board and therefore is not a public body subject to FOIA.³

Because a redistricting committee is not a public body subject to FOIA, it does not have to comply with the notice requirements of § 2.2-3707. However, as you pointed out, Policy 7-12 does state that all Redistricting Committee meetings are open to the public. The policy also states that the meetings will not be publicized through mass media. Note that even if the meetings were subject to FOIA, § 2.2-3707 does not require notice to be publicized through the mass media. Subsection C of § 2.2-3707 requires notice to be posted "in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or in the case of a public body that has no clerk, in the office of the chief administrator." State public bodies are also required to post notice on the Internet; local public bodies are encouraged, but not required, to post notice by electronic means. While stating that redistricting committee meetings will be open, and stating the type of notice that will not be given, the policy does not state what type of notice will be given. Some form of notice must be provided in order to give substance to the policy statement that the meetings are open to the public. To do otherwise would be disingenuous, as without notice, the meeting is effectively being held in secret, and cannot be properly described as being open to the public. In lieu of a specific statement in the policy regarding what notice will be given, this office would recommend following FOIA as a guide by publishing notice in the two locations required for all meetings of public bodies.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹ The request for a written opinion was originally presented to this office in March, 2006, but was deferred while the matter was in litigation, following the litigation policy of the FOIA Council (available at http://foiacouncil.dls.virginia.gov/litigation.pdf). In renewing your request for a written opinion from this office, you indicated that the lawsuit has been dismissed by stipulation of the parties, the court did not rule on any substantive FOIA issues in the case, and no litigation on the matter is currently pending.
² Policy 7-12 indicates that a redistricting committee will receive informational support from school staff, the superintendent, and the School Board, but says nothing about funding.
³ Keep in mind that even if the committee is not a public body, it is likely that the committee's records are public records subject to FOIA (i.e., records that are prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business).