FOI Advisory Council Opinion AO-03-18
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.
