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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-05-07
May
7, 2007
Keil
Stone, Editor-in-chief
Jeremy Beales, Managing Editor
Broadside
George Mason University
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 March 9, 2007.
Dear
Mr. Stone and Mr. Beales:
You
have asked numerous questions regarding the status of the
Student Government at George Mason University (the University)
as a public body subject to the Virginia Freedom
of Information Act (FOIA). As background, you have indicated
that the Student Government is comprised of executive, legislative,
and judicial branches. The legislative branch, the Student
Senate, receives public funds and is responsible for making
budgetary decisions and distributing those funds to the other
branches of the Student Government and other student organizations.
Recently, the Student Senate has impeached a former Student
Senator1 and the Student Government President, which has prompted
many of your questions regarding the Student Government's
responsibilities under FOIA. Further facts and questions will
be presented below.
Your
initial question asks whether the Student Government should
be considered a single public body or three separate
public bodies under FOIA, and how the distinction
affects the obligations of each branch of Student Government.
Public body is defined in § 2.2-3701 to include
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 as well as 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.
Following
prior opinions of the Attorney General and this office, the
Student Government is considered a public body subject
to FOIA because it is an organization ... in the Commonwealth
supported wholly or principally by public funds.2
However,
whether the Student Government is solely a single unified
public body or is also three separate public
bodies is not a useful distinction in this situation.
Looking to the organizational structure of the Student Government,
it is analogous to most governments in the United States:
it is one government with three branches, each of which may
act independently, but together form a single whole. Rather
than trying to define the Student Government itself as one
body or three, for FOIA purposes it is more useful to look
directly at the responsibilities FOIA imposes regarding public
records and meetings.
Subsection
B of § 2.2-3704 places responsibility for responding
to a records request upon the custodian of the requested
records, but FOIA does not define the term custodian.
As a practical matter, one must consider the nature and activities
of each branch in determining its responsibilities under FOIA.
For example, all three branches are part of the Student Government
and all three hold public records in the transaction
of public business. All three branches are therefore responsible
to respond to records requests made pursuant to FOIA. However,
to the extent that each branch is the independent custodian
of its own records, each is independently responsible for
responding to requests for such records. You asked whether
it is necessary for all requests for Student Government records
to be directed to the President, or whether requests could
be directed to the heads of each individual branch. Looking
outside of FOIA for guidance, § 42.1-77 of the Virginia
Public Records Act (VPRA) defines custodian to mean
the public official in charge of an office having public
records. Applying this definition in the context of FOIA
and Student Government, records requests may be directed to
the head of each branch of Student Government - i.e., to the
custodian with the responsibility to keep and maintain
the records. At the same time, because each branch is part
of a unified whole, it is expected that members of one branch
will forward requests to the other branches or redirect requesters
to the proper custodian in another branch, as needed. Based
upon my understanding of the structure of the Student Government
as set forth in its Constitution, and following the definition
of custodian provided in the VPRA, the record custodians
of each branch would be the President (executive branch),
the Speaker (legislative), and the Chief Justice (judicial).
Considering
meetings subject to FOIA, the § 2.2-3701 defines the
term meeting to mean
the
meetings including work sessions, when sitting physically,
or through telephonic or video equipment pursuant to §
2.2-3708, as a body or entity, or as an informal assemblage
of (i) as many as three members or (ii) a quorum, if less
than three, of the constituent membership, wherever held,
with or without minutes being taken, whether or not votes
are cast, of any public body. The gathering of employees
of a public body shall not be deemed a "meeting"
subject to the provisions of this chapter.
Considering
the different branches of the Student Government, the Student
Senate is a legislative deliberative body with voting members
(the Senators). Therefore a gathering of Senators may be a
meeting subject to the requirements of FOIA. By contrast,
the executive and judicial branches generally do not have
a constituent membership as is required to form a
quorum. Executive and judicial branches are generally
formed of individual officers and employees rather than as
deliberative bodies, and generally do not hold meetings
subject to FOIA.3 For that reason, the Student
Senate generally will be subject to the meetings requirements
of FOIA, while the executive and judicial branches generally
will not.
Next,
you asked about the consequences if the Student Senate fails
to properly cite a specific exemption to open meeting requirements.
You ask, for example, whether matters discussed in an improperly
closed meeting become open to public disclosure, and what
consequences ensue from a regular failure to move in and out
of closed session properly. FOIA does not mandate automatic
consequences in such situations, but provides a mechanism
for individuals to enforce their own FOIA rights. The remedy
for noncompliance under FOIA is to seek a petition for mandamus
or injunction in either general district or circuit court.
My understanding is that judges may exercise discretion in
crafting orders of mandamus or injunction appropriate to each
situation, and so the remedies may vary depending on the facts
involved. For example, in at least one reported opinion where
there was no written record of what occurred in a closed meeting,
the court took depositions under seal from those who were
present at the meeting. Upon finding that the closure of the
meeting was improper, the court ordered those depositions
to be made public as evidence of what happened at the meeting.4
If written minutes were taken during an improperly closed
meeting, a judge might order those to be made part of the
public record. By contrast, if there was a proper exemption
covering the closed meeting, but the public body made a procedural
error in closing the meeting, the remedy might be different
entirely. For example, in such a situation a judge might admonish
the public body and order it to follow proper procedure in
the future, but might not require the revelation of what happened
during the closed meeting. In summary, the possible remedies
may be as varied as the possible violations; only a court
may determine what remedy is appropriate under a particular
set of facts.
You
also asked whether a matter decided in closed meeting is void
if it is not voted upon in open meeting. Subsection A of §
2.2-3710 states that [u]nless otherwise specifically provided
by law, no vote of any kind of the membership, or any part
thereof, of any public body shall be taken to authorize the
transaction of any public business, other than a vote taken
at a meeting conducted in accordance with the provisions of
this chapter. In regard to a closed meeting, subsection
B of § 2.2-3711 states that [n]o resolution, ordinance,
rule, contract, regulation or motion adopted, passed or agreed
to in a closed meeting shall become effective unless the public
body, following the meeting, reconvenes in open meeting and
takes a vote of the membership on such resolution, ordinance,
rule, contract, regulation or motion that shall have its substance
reasonably identified in the open meeting. If a public
body has properly convened in closed session, it may, while
still in closed session, reach a tentative agreement about
the topic of business being discussed. However, following
subsection B of § 2.2-3711, the substance of that agreement
will not become effective until it is identified at an open
meeting, and voted on by the membership.5
Next,
you asked whether the Student Government is an educational
agency capable of claiming the scholastic records or meeting
exemptions found at subdivision 1 of § 2.2-3705.4 and
subdivision A 2 of § 2.2-3711, respectively. Under §
2.2-3701, scholastic records are defined as those
records containing information directly related to a student
and maintained by a public body that is an educational agency
or institution or by a person acting for such agency or institution.
The phrase educational agency or institution is not
defined in FOIA. The University itself is a state-supported
institution of higher education pursuant to § 23-9.5.
While the Student Government is inextricably intertwined with
the University, the two are nonetheless separate entities;6
the Student Government is not deemed an educational agency
or institution merely by association with the University.
Looking to common usage, educational means of
or relating to education or serving to educate; instructive.7
Such is not the purpose of the Student Government. The Student
Government Constitution indicates that the Student Government
was formed to establish justice, promote the general welfare,
and provide for a common foundation of student governance.
Therefore, while it is closely related to the University,
the Student Government is not itself an educational agency
or institution. However, depending on the factual circumstances
involved, it is possible that the Student Government or members
thereof may be person[s] acting for [the University].
Whether
the Student Government may exercise the scholastic records
exemption found in subdivision 1 of § 2.2-3705.4 will
therefore depend upon the factual circumstances in question.8
Generally, records over which the University holds custody
and that otherwise meet the definition of scholastic records
will be exempt in the hands of the Student Government when
the Student Government is acting on behalf of the University.
However, records solely in the custody of the Student Government,
created by Student Government, and not shared with the University
would appear to fail to meet the definitional requirement
that they be maintained by a public body that is an educational
agency or institution or by a person acting for such agency
or institution. In regard to your query, then, the Student
Government is not an educational agency or institution,
but at least in some instances, it may exercise the exemption
for scholastic records. In the context of records
generated during the impeachment process, you did not provide
specific facts regarding how the records are generated and
kept. If it is presumed that such records would be created
by the Student Government for use by the Student Government
in regard to one of its own members, and that the Student
Government is not acting for the University in conducting
the impeachment and maintaining these records, then such impeachment
records could not be exempted from disclosure as scholastic
records.9
In regard
to meetings, subdivision A 2 of § 2.2-3711 allows a closed
meeting to be convened for the following purposes:
Discussion
or consideration of admission or disciplinary matters or
any other matters that would involve the disclosure of information
contained in a scholastic record concerning any student
of any Virginia public institution of higher education or
any state school system. However, any such student, legal
counsel and, if the student is a minor, the student's parents
or legal guardians shall be permitted to be present during
the taking of testimony or presentation of evidence at a
closed meeting, if such student, parents, or guardians so
request in writing and such request is submitted to the
presiding officer of the appropriate board.
This
closed meeting exemption does not require that a public body
be an educational agency or institution in order
to exercise the exemption. Therefore the Student Government,
as any other public body, may exercise this exemption to hold
a closed meeting so long as the other conditions of the exemption
are met. In the context of impeachment, it is clear that the
President of the Student Government and a Student Senator
are both students at the University, which itself is a Virginia
public institution of higher education. It follows then that
any discussion or consideration of admission or disciplinary
matters or any other matters that would involve the disclosure
of information contained in a scholastic record concerning
the President or a Senator may be conducted in a closed meeting
pursuant to this exemption. To the extent that matters discussed
or considered do not involve information contained in a scholastic
record, however, this exemption would not apply.
Finally,
you asked whether the impeachment of a public official would
be an appropriate topic for a closed meeting held pursuant
to subdivision A 1 of § 2.2-3711. That subdivision permits
a public body to convene in a closed meeting for the following
purposes:
Discussion,
consideration, or interviews of prospective candidates for
employment; assignment, appointment, promotion, performance,
demotion, salaries, disciplining, or resignation of specific
public officers, appointees, or employees of any public
body; and evaluation of performance of departments or schools
of public institutions of higher education where such evaluation
will necessarily involve discussion of the performance of
specific individuals. Any teacher shall be permitted to
be present during a closed meeting in which there is a discussion
or consideration of a disciplinary matter that involves
the teacher and some student and the student involved in
the matter is present, provided the teacher makes a written
request to be present to the presiding officer of the appropriate
board.
You proposed
that impeachment would not be considered the same
as disciplining, because impeachment is
a more specific term. The term impeachment is defined
as the trying of a public official for charges of illegal
acts committed in the performance of public duty.10
To impeach is to charge with malfeasance in office
before a proper tribunal.11 As a noun, the
term discipline is defined as punishment inflicted
by way of correction and training12 or as
punishment intended to correct or train.13
From these definitions it is clear that impeachment is
a process that may lead to punishment for misconduct (usually
removal from office), but is not the punishment itself. By
contrast, disciplining in this context refers to
the discussion or consideration of imposing punishment. Effectively,
impeachment is a discussion or consideration of whether
an official should be disciplined. As such, it would appear
to fall within the scope of the disciplining, as
the broader concept (disciplining) encompasses the
narrower concept (impeachment). Additionally, it
is clear that impeachment necessarily involves the
discussion or consideration of the performance of
an individual officer, appointee, or employee of a public
body. Because such a discussion or consideration of performance
is also allowed under the exemption, impeachment
is a permitted purpose under that aspect of the exemption.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1It
is my understanding that the Student Senator in question had
already left office before impeachment proceedings were commenced.
2Freedom
of Information Advisory Opinions 18 (2003) and 23 (2001);
1984-1985 Op. Att'y Gen. Va. 431; 1977-1978 Op. Att'y Gen.
Va. 482.
3There are situations where a board,
commission, or other deliberative body that holds meetings
subject to FOIA will be part of an executive or judicial branch
of government, but this is atypical, not the norm. Based upon
the facts presented, such bodies are not under consideration
in this opinion.
4Media
General Operations, Inc. v. City Council of the City of Richmond,
64 Va. Cir. 406 (City of Richmond, 2004).
5Freedom of Information Advisory
Opinions 1 (2005) and 15 (2002).
6Freedom of Information Advisory Opinion 18 (2003).
7American Heritage Dictionary 439
(2d College ed. 1982).
8Additionally, note that prohibitions on the disclosure
of certain scholastic records may be found under state law
outside of FOIA (e.g. Code § 22.1-287) and under the
federal Family Educational Rights and Privacy Act, 20 U.S.C.
§ 1232g. These provisions may further limit access to
certain records, again depending on the factual circumstances.
9Note that a prior circuit court opinion held that
records of two honor trials and one appeal at the University
of Virginia, including tapes, transcripts, and other related
documents, were considered scholastic records exempt from
mandatory disclosure under FOIA. Redinger v. Casteen,
39 Va. Cir. 176 (City of Richmond, 1996).
10Definition available at http://dictionary.law.com/default2.asp?selected=901&bold=||||
(last accessed April 25, 2007).
11American Heritage Dictionary 645 (2d College
ed. 1982).
12Definition available at http://dictionary.reference.com/browse/disciplining
(last accessed April 25, 2007).
13American Heritage Dictionary 402 (2d College
ed. 1982).
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