Thank you to everyone who attended last week’s webinar on Virginia’s Freedom of Information Act (“FOIA”) and how it impacts local Special Education Advisory Committees (“SEAC”). You may access the video webinar here. There were two outstanding questions at the end of last week’s presentation that I would like to address now.
- How long must e-mails (and other public records) be retained for?
This is a great question and surprisingly difficult to answer due to Virginia’s record retention and disposition schedule. The Library of Virginia is responsible for establishing record retention rules and scheduling when certain types of records must be deleted. Instead of covering broad blanket-category rules, for public schools at the county and municipal government levels, it describes specific types of records based on what the record is used for. Here is a link to the most recent retention schedule concerning public schools.
The long answer would require you to look at the e-mail (or other type of public record), determine what category the record falls into based on the schedule, and keep it for that period of time. This can be tedious, and may not be apparent to your situation.
The short answer is that most of the longest record retentions are “5 years after the student graduates” or “5 years after the end of the academic year,” so 5 years is a safe bet. This may also be burdensome for you as a SEAC member to maintain e-mails for that period of time.
I would suggest conducting most SEAC business in-person (as required under FOIA law anyways), minimize e-mails to procedural issues such as scheduling, and if you use e-mail for correspondence with other SEAC members or on behalf of the SEAC, then print those e-mails in their entirety and give them to your SEAC’s records custodian (can be secretary or school’s public records custodian depending on what the arrangement is). At that point, the record retention will be out of the individual SEAC member’s possession and will resolve any concerns about how long to keep the e-mails around for.
- Can a SEAC close a meeting for the purpose of discussing membership selection?
Before discussing the specific closed meeting exceptions, remember that the purpose of FOIA is to open government functions as much as possible to the public. Closing meetings should be reserved only to protect discussions concerning personnel matters that would be most appropriate not to have the public hear as it may involve discussions of personal matters that may cause public embarrassment or similar negative consequences. If a SEAC meeting can hold a public discussion with a prospective member available to discuss his/her qualifications to join SEAC and the SEAC board able to discuss those qualities candidly that would be ideal.
But in reality, such discussions are often private so that the SEAC can candidly discuss a prospective member’s abilities and detriments to the membership. The “personnel” exception to closed meetings specifically provides that “[d]iscussion, consideration or interviews of . . . assignment, appointment . . . disciplining or resignation of specific public officers, appointees or employees of any public body . . .” can be exempted. (Code § 2.2–3711(a).
In short, the statute appears to permit a SEAC to close a meeting to discuss matters concerning its own members including appointing new members to a SEAC. Remember to properly close the meeting while it is in open session, stick to closed meeting business, re-open the meeting to the public, take a vote verifying that the closed meeting discussed only proper closed meeting business, and if you elected a new SEAC member, take an open vote electing that person.
If you have any other questions about Virginia’s FOIA law and how it applies to SEACs, please contact PEATC, me, or post a response to this blog, which I will check on occasion. Thank you all again for the opportunity to discuss FOIA with you.