FOI Advisory Council Opinion AO-02-17
February 24, 2017
Mary McGowan, Esq.
Prince William County Public Schools
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.
Maria J.K. Everett
1. Taken 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).
2. The American Heritage Dictionary 154 (2d College ed. 1982).
3. Id. at 1108.
4. I 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.