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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-18
March
27 , 2018
Toby
Latham
Fairfax, 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 messages dated November
8, 2017.
Dear
Mr. Latham:
You have asked for clarification regarding whether
the meeting requirements of the Virginia Freedom of
Information Act (FOIA) apply to a Budget Task Force
(the task force, or BTF). You indicated that the task
force includes three or more members nominated or
recommended by members of the Fairfax County School
Board (the school board) and that the task force advises
the school board through the superintendent of Fairfax
County Public Schools (FCPS). As background information,
you provided five documents: a letter you wrote that
includes facts about the task force as well as your
own analysis of the application of FOIA to the task
force; a document titled "FY 2018 Budget Information"
that summarizes the FCPS budget for fiscal year 2018
(the budget information document); a document titled
"FY 2017 Budget Task Force Recommendations to
the Superintendent" dated January 20, 2016 (the
task force recommendations); an email from a school
board member explaining that the school board recommends
members for the task force but does not appoint them
directly; and a school board work session agenda item
detail for a meeting dated November 9, 2015, concerning
the superintendent's briefing of the school board
on the task force's budget recommendations. The budget
information document describes the task force as
a committee of community members nominated by various
stakeholders (by School Board members, the County
Board of Supervisors, community groups, and FCPS
employees) in order to provide input on the budget
process and to address a likely budget shortfall
for FY 2018. The Task Force was originally created
as part of the FY 2017 Budget process to identify
potential programs and services to reduce, eliminate,
or redesign.
The Executive Summary to the task force recommendations
states as follows regarding the task force:
The Fairfax County Public Schools Budget Task Force
was convened by the Superintendent to address a
likely budget shortfall for FY 2017. The Budget
Task Force met several times over the summer and
fall of 2015 to provide community input to the Superintendent
with two scenarios of budget cuts; $50 million and
$75 million. The Budget Task Force was made up of
community members nominated by school board members,
community groups, and employees of the school system.
The task force recommendations also include further
information about how the task force was created,
its work, its membership, and the processes it used
in conducting its business, as well as the actual
recommendations it made. Regarding the work and creation
of the task force, the task force recommendations
state as follows:
Because FCPS expects the FY 2017 budget to be a
tremendous challenge, a Budget Task Force of stakeholders
was established to advise the Superintendent on
how to close the budget gap. The charge of the Task
Force was to obtain community input and identify
a comprehensive list of potential reductions and
fee increases totaling $50 million and $75 million.
Regarding membership, the task force recommendations
state that the task force "was comprised of thirty-six
(36) representatives identified by the Fairfax County
Public School Board, the Fairfax County Board of Supervisors,
Employee Organizations, Community, Business, and Parent
Organizations, and Student Organizations." The
task force recommendations also state that "[a]dministrative
support for the Task Force was provided by FCPS."
In your letter, you indicated that you asked for information
about the task force from the superintendent and when
you did not hear back within a week, you also asked
FCPS's Office of Communication and Community Outreach
(OCCO) about its view regarding whether the task force
was subject to FOIA's meeting requirements. You subsequently
received responses from both the superintendent and
OCCO, which you described as follows:
On November 1, 2017, I received the following response
from the Superintendent:
Thank
you for your email. The Superintendent's Budget
Task Force was created to provide efficiency recommendations
to the superintendent and therefore are closed
meetings to the public (no meeting minutes are
recorded). However, any information from the Budget
Task Force will be shared by the superintendent
to the School Board and posted according to their
guidelines for regular meetings and/or work sessions.
On November 2, 2017, I received the following response
from OCCO's Executive Director:
Thank you for your inquiries regarding the Superintendent's
Budget Task Force. Committees that advise the
chief executive of a public body are not subject
to Virginia FOIA. The Budget Task Force was created
by the Superintendent (the chief executive of
FCPS) to advise and provide recommendations to
him. Accordingly, the meetings of the Budget Task
Force are not required to be public, and we will
not be posting the scheduled meetings of the Task
Force.
However, the Superintendent will share with the
School Board, and post publicly, any final recommendations
made to him by the Budget Task Force.
In response to my follow-up email asking whether
the BTF includes three or more members appointed
by members of the school board, OCCO's Communication
Support Specialist stated that "members are
not appointed by the School Board."
On the basis of these background facts, you question
whether the task force must comply with the open meeting
requirements of FOIA. You specifically posed the following
three questions:
-
Did the School Board create an entity of the School
Board (i.e., a public body, as defined in FOIA §
2.2-3701) by nominating or recommending citizens
to occupy BTF seats that are specifically tied to
each School Board member?
- Does
the BTF advise the School Board?
-
If the School Board created an entity that advises
the School Board, is FCPS required to comply with
FOIA's open-meeting requirements when that entity
participates in meetings with BTF members who are
not members of the public body?
Each
of these questions will be addressed below, and further
facts will be set forth as appropriate.
The policy of FOIA set out in subsection B of §
2.2-3700 is to ensure "the people of the Commonwealth
ready access to public records in the custody of a
public body or its officers and employees, and free
entry to meetings of public bodies wherein the business
of the people is being conducted." To that end,
the policy directs 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." In
examining whether an entity is subject to FOIA, we
must determine whether it falls within the definition
of "public body" set forth in § 2.2-3701:
"Public body" means 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;
governing boards 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
(i) the Virginia Birth-Related Neurological Injury
Compensation Program and its board of directors
established pursuant to Chapter 50 (§ 38.2-5000
et seq.) of Title 38.2 and (ii) 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. Corporations organized by the Virginia
Retirement System are "public bodies"
for purposes of this chapter.
For the purposes of the provisions of this chapter
applicable to access to public records, constitutional
officers and private police departments as defined
in § 9.1-101 shall be considered public bodies
and, except as otherwise expressly provided by law,
shall have the same obligations to disclose public
records as other custodians of public records.
This definition explicitly includes school boards,
so there is no question that the school board is a
public body subject to FOIA. The definition does not
make any mention of a "task force," but
a task force could still fall within two different
parts of the definition: (i) a task force could be
an organization "in the Commonwealth supported
wholly or principally by public funds" or (ii)
a task force could be an "other entity however
designated, of the public body created to perform
delegated functions of the public body or to advise
the public body." In this instance, it appears
that FCPS provided staff support for the work of the
task force, but no evidence has been presented indicating
that the task force is supported by public funds.
Therefore, that aspect of the definition need not
be considered further for purposes of this opinion.
Instead, we will focus on whether the task force is
an "other entity ... of the [school board] created
to perform delegated functions of the [school board]
or to advise the [school board]."
On the basis of the facts presented, it appears that
each school board member recommends one person to
be appointed to the task force, for a total of 12
members out of the 36 total members of the task force.
However, the email from the school board member that
you included as background material explicitly states
that the school board members only make recommendations
and "do not appoint task force members."
The FY 2017 task force recommendations state that
the task force "was convened by the Superintendent."
The FY 2018 budget information document states that
the interim superintendent "has reconvened the
Budget Task Force." Both documents indicate that
the school board and other interested parties nominated
individuals to be members of the task force, but it
appears that all of the task force members were appointed
by the superintendent (or interim superintendent,
as the case may be). It is therefore up to the superintendent
whether to appoint the community members that were
recommended by the various groups. None of the documentation
suggests that any members of the task force were also
members of the school board. Additionally, the superintendent,
not the school board, convenes the task force. Therefore,
it appears that the task force was not created by
the school board. It merely includes some members
recommended by the school board. Given those facts
alone, the task force would not be considered an "other
entity ... of the [school board]."
We must now look at whether the task force was "created
to perform delegated functions of the [school board]
or to advise the [school board]," which is also
your second question. None of the materials you provided
suggests that the task force was carrying out a delegated
function on behalf of the school board or that the
task force made its recommendations to the school
board directly. Note also that the task force recommendations
are titled "Recommendations to the Superintendent,"
not "to the School Board," and the various
background materials make clear that the task force
made its budget recommendations to the superintendent,
but it was the superintendent who then presented the
proposed budget to the school board. The task force
recommendations also state specifically that "a
Budget Task Force of stakeholders was established
to advise the superintendent on how to close the budget
gap." Additionally, the same information was
provided to you in response to your request from the
superintendent and the OCCO. Given this factual background,
it appears that the task force was not created to
perform a delegated function of the school board or,
in response to your second question, to advise the
school board.
Therefore, considering all of the above reasoning
and the background information you provided, the task
force would not fall within the definition of "public
body" set forth in § 2.2-3701.i Because the
task force is not a "public body," it would
not be required to comply with the open meeting requirements
of FOIA. It is important to note, however, that the
definition of "public records" in §
2.2-3701 includes "all writings and recordings
... 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." Records of the task force
relating to the transaction of public business may
therefore be subject to FOIA depending on the relationship
of the individuals appointed to the task force with
the school board or if records of the task force come
into possession of the school board or another public
body.
Your final question addresses a hypothetical and requires
an analysis similar to your first two questions. If
the school board created an entity that advises the
school board, then that entity would clearly fall
within the definition of "public body" as
outlined in § 2.2-3701 because it is created
both by the school board and with the purpose of advising
the school board.ii To be clear, we have determined
that in the instance of the task force this is not
the case. But if an entity were created in that manner,
then it would be required to comply with the open
meeting requirements if a meeting took place. In examining
whether a meeting took place pursuant to FOIA, we
must look at the definition of "meeting"
in § 2.2-3701:
"Meeting"
or "meetings" means the meetings including
work sessions, when sitting physically, or through
telephonic or video equipment pursuant to §
2.2-3708 or 2.2-3708.1, 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. Neither the gathering
of employees of a public body nor the gathering
or attendance of two or more members of a public
body (i) at any place or function where no part
of the purpose of such gathering or attendance is
the discussion or transaction of any public business,
and such gathering or attendance was not called
or prearranged with any purpose of discussing or
transacting any business of the public body, or
(ii) at a public forum, candidate appearance, or
debate, the purpose of which is to inform the electorate
and not to transact public business or to hold discussions
relating to the transaction of public business,
even though the performance of the members individually
or collectively in the conduct of public business
may be a topic of discussion or debate at such public
meeting, shall be deemed a "meeting" subject
to the provisions of this chapter.
Under the hypothetical in your final question, it
appears that the whole entity, or at least three members
or a quorum of the entity, would meet with the task
force to discuss budgetary issues regarding the public
school system. If that is the case, and because discussing
the budget of a public school system would involve
the transaction of public business, a meeting of the
public body would clearly be taking place. The public
body, meaning the entity created by the school board,
would therefore need to comply with the open meeting
requirements as set out in FOIA in § 2.2-3707iii
unless the meeting were closed pursuant to an exemption
in § 2.2-3711.iv
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Alan
Gernhardt
Executive Director
iSee,
e.g., Freedom of Information Advisory Opinions
03 (2009), 04 (2013), 07 (2013) (examining whether various
committees and advisory groups are subject to the open
meeting requirements of FOIA); 1978-1979 Op. Att'y Gen.
Va. 316A (finding that a committee comprised of members
appointed by the mayor that receives no public funds
and reports only to the mayor and not to the city council
is not a public body).
iiSee, e.g., Freedom of Information
Advisory Opinion 07 (2013) (stating that an advisory
group "would be a public body subject to the meetings
rules of FOIA if it ... advises the Board, but not if
it acts solely on behalf of the Chair").
iiiIn your third question, you asked if the
FCPS would need to comply with the open meeting requirements
of FOIA if the school board created an entity to advise
the school board and that entity participated in the
BTF. The question, in terms of compliance with open
meeting requirements, is what falls within the definition
of a "public body." The public body is responsible
for complying with the open meeting requirements. In
the scenario in your question, the entity created by
the school board would be the public body and therefore
it would be subject to the open meeting requirements.
As stated previously, the task force, as now created,
does not fall within the definition of a "public
body."
ivThe exemptions
would need to be cited in a motion approved by an affirmative
recorded vote, as provided by subsection A of §
2.2-3712. If a closed meeting is convened, then when
it is concluded, the public body must reconvene in open
meeting to certify the closed meeting, as provided by
subsection D of § 2.2-3712.
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