|
|
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-17
February
24, 2017
Mary
McGowan, Esq.
Prince William County Public Schools
Manassas, 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 letter dated January 6, 2017, which
was received on January 12, 2017.
Dear
Ms. McGowan:
You have asked whether the Prince William County School
Board (the Board) may vote using BoardDocs Pro, which
you have described as "an electronic software
agenda management and voting platform" that allows
the Board "to cast, display, and record ... votes
during a public meeting." As background, you
stated that BoardDocs Pro includes the following features:
•
An electronic agenda which can be accessed online
by the public before, during, and after the meeting;
• The ability of the public to access any attachments
to agenda items online;
• An overhead display of each agenda item, motion
and amended motion during the public meeting;
• Online access to past agendas and the minutes
of Board meetings; and
• The ability of Board members to vote electronically.
You
described that when using the electronic voting function,
an overhead monitor displays the exact language of
the motion, the maker of the motion, and the second.
You stated that each member pushes a button on an
individual console to vote and the individual votes
for, against, or abstaining are all displayed within
seconds on the overhead monitor. You also stated that
the vote is displayed on additional monitor screens
in the Board room and elsewhere in the building if
the Board room is filled to capacity; it is shown
on live public television; it is streamed on the School's
website; and it is verbally announced by the Board
Clerk and recorded electronically in BoardDocs Pro.
Votes may also be found in the Board's minutes and
videotapes of past meetings, which include the votes
as they appeared on the monitors at each meeting.
The BoardDocs website1 says the following
about the voting feature of BoardDocs Pro:
Online
voting offers organizations the ability to have
board members vote directly in BoardDocs during
the meeting. Voting information is recorded and
the voting result is displayed on the Scoreboard
for the audience.
For
each action item, once the motion is recorded, the
meeting moderator opens the voting for board members.
During the time that the vote is open board members
can vote, change their mind and re-vote, and even
vote again. Once voting is closed, the board members
can no longer change their vote.
I
note that the voting example on the BoardDocs Pro
website appears to show only the vote total, not each
vote cast by individual members. However, your description
indicated that each vote cast by individual members
is visible to the public. For purposes of this opinion
we will consider both alternatives in the analysis
below. Continuing the factual background, you stated
that the Board had used the electronic voting feature
of BoardDocs Pro in the past, but ceased this practice
in December, 2015 out of a concern for the restrictions
on voting imposed by the Virginia Freedom of Information
Act (FOIA) in subsection A of § 2.2-3710. Instead,
the Board now votes by show of hands, which you stated
the Board has found to be less apparent to the public,
more cumbersome, and more prone to error than the
electronic voting system. Specifically, you mentioned
that the electronic voting system provided an almost
instantaneous public display of the votes, but without
it the Chair must manually record the vote by show
of hands. The Board has found that recording the vote
manually is slower than when using the electronic
system and sometimes requires taking the vote again
to ensure accuracy or in the event that a member drops
his or her hand while waiting to be counted. Additionally,
because members only raise their hands briefly, it
is less visible than a vote displayed on monitors
via BoardDocs Pro. For these reasons you indicated
that the Board would like to be able to vote using
BoardDocs Pro, and asked whether the Board may do
so without violating FOIA.
The policy of FOIA expressed in subsection B of §
2.2-3700 is to ensure "the people of the Commonwealth
... free entry to meetings of public bodies wherein
the business of the people is being conducted."
That section further provides that "[t]he 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" and that "[t]he 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." Regarding
voting, subsection A of § 2.2-3710 provides as
follows:
Unless
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. No public body
shall vote by secret or written ballot, and unless
expressly provided by this chapter, no public body
shall vote by telephone or other electronic communication
means.
As
your inquiry only concerns the use of the electronic
voting feature of BoardDocs Pro, it is presumed that
all other aspects of a hypothetical meeting were "conducted
in accordance with the provisions of [FOIA]."
The question then is whether using BoardDocs Pro constitutes
a "vote by secret or written ballot," or
"by telephone or other electronic communication
means."
Addressing the latter term first, "electronic
communication" is defined in § 2.2-3701
to mean "any audio or combined audio and visual
communication method." Considering the provisions
of FOIA quoted above as applied to the electronic
voting feature of BoardDocs Pro as you have described
it, it appears that BoardDocs Pro is not a vote "by
telephone or other electronic communication means"
because it does not rely on an audio component and
thus does not meet the statutory definition of "electronic
communication." Therefore a vote taken using
BoardDocs Pro would not be prohibited as voting "by
telephone or other electronic communication means"
under subsection A of § 2.2-3710, which leaves
only the question of whether a vote taken using BoardDocs
Pro amounts to a "secret or written ballot."
FOIA does not provide a statutory definition of "secret
or written ballot." Relevant dictionary definitions
of "ballot" include the following:
1.
A sheet of paper used to cast or register a vote,
esp. a secret vote.
2. The act, process, or method of voting, esp. by
the use of secret ballots.
* * *
4. The total of all votes cast in an election.2
There
is also no statutory definition of "secret,"
but the same dictionary provides the following relevant
definitions of "secret" when used as an
adjective:
1.
Concealed from general knowledge or view; kept hidden.
* * *
3. Operating in a hidden or confidential manner:
a secret agent.
4. Not visibly expressed; inward.3
While
it is not defined in FOIA, the term "written"
is defined by statute in Code § 1-257:
"Written,"
"writing," and "in writing"
include any representation of words, letters, symbols,
numbers, or figures, whether (i) printed or inscribed
on a tangible medium or (ii) stored in an electronic
or other medium and retrievable in a perceivable
form and whether an electronic signature authorized
by Chapter 42.1 (§ 59.1-479 et seq.) of Title
59.1 is or is not affixed.
Based
on your description and the description provided on
the BoardDocs website, a member votes using BoardDocs
by using his computer mouse to click a visible button
on her or her computer screen which sends an electronic
signal to the computer of the person administering
the vote and to one or more overhead displays that
the public can see within seconds of the votes being
cast. Such a means of voting clearly is not the same
thing as the traditional ballot defined above, i.e.
"a sheet of paper used to cast or register a
vote, esp. a secret vote." However, following
the definitions above, it appears that BoardDocs Pro
could be seen as a "written ballot" in that
it is a representation of words (i.e., the identity
of the members and how they voted on a given motion)
"stored in an electronic ... medium and retrievable
in a perceivable form" (i.e., stored on the computer
and displayed on the monitor(s)) that shows "the
total of all votes cast" (although not "in
an election" in this case). Similarly, using
BoardDocs Pro to vote clearly is an "act, process,
or method of voting." However, it could be argued
that rather than being a type of ballot, BoardDocs
Pro uses technology to eliminate the ballot entirely
and replace it with a transitory electronic signal
from one computer to another.
In considering this issue further we recognize that
FOIA itself has not been amended to account for technological
developments such as electronic voting systems. By
way of illustration, consider the following definitions
taken from election law, Va. Code § 24.2-101:
"Ballot
scanner machine" means the electronic counting
machine in which a voter inserts a marked ballot
to be scanned and the results tabulated.
"Direct
recording electronic machine" or "DRE"
means the electronic voting machine on which a voter
touches areas of a computer screen, or uses other
control features, to mark a ballot and his vote
is recorded electronically.
"Machine-readable
ballot" means a tangible ballot that is marked
by a voter or by a system or device operated by
a voter and then fed into and scanned by a counting
machine capable of reading ballots and tabulating
results.
"Paper
ballot" means a tangible ballot that is marked
by a voter and then manually counted.
"Printed
ballot" means a tangible ballot that is printed
on paper and includes both machine-readable ballots
and paper ballots.
"Voting
system" means the electronic voting and counting
machines used at elections. This term includes direct
recording electronic machines (DRE) and ballot scanner
machines.
These
definitions help illustrate various types of ballots
and technological methods of voting that are possible.4
The "written or secret ballots" language
used in FOIA appears to be most closely analogous
to the "paper ballot" or "printed ballot"
as defined in § 24.2-101 above. By contrast,
voting using BoardDocs Pro would appear to be more
analogous to the use of a "direct recording electronic
machine." However, BoardDocs Pro is still different
from a DRE as defined in § 24.2-101 because a
DRE is used "to mark a ballot" and record
votes electronically. As described, it appears that
BoardDocs Pro actually eliminates the ballot entirely
and simply displays the final vote directly. In other
words, it does not appear that BoardDocs Pro fits
within any of these definitions, but instead presents
a situation where technological developments have
outpaced developments in the law.
Presuming that BoardDocs Pro has eliminated the written
ballot through technology, we are still left with
the question of whether BoardDocs Pro equates to a
"secret" ballot. In considering this issue
we must address the alternative facts presented above.
Traditional means of voting at a public meeting (by
voice vote, show of hands, or roll call, for example)
clearly provide the opportunity for the public to
observe the vote of each member. Based on your description,
the electronic voting feature of BoardDocs Pro displays
each member's vote publicly on overhead monitors within
seconds of the vote being cast and facilitates further
dissemination of information about the meeting online
and elsewhere. Such a means of voting is not "secret"
but actually makes the vote more visible to the public,
thus serving the stated policies of FOIA "to
promote an increased awareness by all persons of governmental
activities and afford every opportunity to citizens
to witness the operations of government." However,
the sample vote shown on the BoardDocs Pro website
only shows the vote total, not the vote of each member.
If only the vote total is shown, then that would be
less information than would be available to the public
at a traditional public meeting, and therefore would
be contrary to FOIA.
In summary, it appears that voting through the use
of BoardDocs Pro and similar means is not directly
addressed in FOIA. While FOIA is silent about this
specific technology, we cannot predict how a court
might rule were someone to challenge a public body's
use of this technology. Given your description of
the software, so long as it displays the individual
votes of each member it would appear to facilitate
public awareness of government activities and thus
comport well with the purposes of FOIA. As a general
matter, the use of such technology to facilitate public
awareness should be encouraged. On the other hand,
if it only displays the vote total and not members'
individual votes, this would be detrimental to FOIA's
purposes, in which case it should not be used. Please
note that the FOIA Council intends to study various
issues regarding the use of technology in the coming
year, and will include this issue as part of that
study.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Taken
from BoardDocs HOW TO: Enabling and Using Online Voting
(BD Pro) at http://www.boarddocs.com/Home.nsf/(WebContent)/B0A4C8A85A034215872577FC004EE02A
(last accessed February 15, 2017).
2The American Heritage Dictionary 154 (2d
College ed. 1982).
3Id. at 1108.
4I note that there are others, such as the
electronic voting boards used by the General Assembly
and its Committees, but these are not at issue for purposes
of this opinion.
|