FOIA – Freedom of Information Act

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by:  Timothy R Johnson, Esq

 

 

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.

 

  1. 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.

  1. 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.

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“I told them YES!”

Sitting in traffic on my way home from work, the speakers begin to ring, it’s home calling.

“Hello”

“Hey,” says my husband, “guess who just called?”

“Hmmm, the elementary school, do they want to talk again?”

“Nope, not the elementary school,” my husband explains, “it was someone from the US Department of Education and he wants to know if you and Noah would be willing to speak.“

I can hear the increased tone of his voice and quickened pace, as he explains. “They are wondering if you guys would speak at the 40th Anniversary celebration of IDEA, the Individuals with Disabilities Education Act and, and… it’s at the WHITE HOUSE!  I told them YES!”

At this point, I visualize a scene in a movie where the frame is paused and everything begins to rewind at high speed.  What is happening?  Who just called my house? How did they get my number? What has my husband just agreed to?

Well, here is how the story has unfolded thus far.  As a result of talking and advocating and talking some more about children with dyslexia to stakeholders and anyone else who would listen, then combine that with my work at the Virginia State PTI working with families of special needs children in the public school system, Noah and I surfaced as a family who have a vested interest in IDEA. This is the federal law that serves and protects children with disabilities who receive services in public school. Next week is the 40-year celebration of IDEA.

But what has the last three weeks of our lives looked like, what actually happens when you say yes to speak at the White House.  What happens when a regular family of 5, with 2 working parents whose 3 public school kids, 2 with special needs are invited to an event at the white house….. Chaos…. Ok maybe not chaos maybe more like 1 chaotic mom and four family members running interference and avoiding her if at all possible.

We have been vetted and cleared.  Well, of course you say, you’re going to the white house.  Social Security cards for all have been located; yes even the nine-year-old.

We have had multiple briefings.  Again, expected, no?  I mean, of course, I watch TV like the rest of you!  The fourteen-year-old now is prepared to remotely dial into any conference call anywhere, a life skill I know he will need in the future!  Check that box, done.

We have written speeches and had those cleared.  Reminiscent of college professor feedback, praying it will be minimal because honestly you are pretty sure you have use up all the knowledge and creativity you had in that one piece.

11226906_10153147245872823_1418831433824999554_nClothes have been acquired carefully for each child and we are committed to representing ourselves as a proud American family.

We have dates, times, links, addresses, agendas and are fully informed that they are subject change at any time and without notice.

Really, we just need to practice and we are all set.  Right? Next Wednesday we pick back up with our normal routine of drama, chorus, wrestling and gymnastics.

I share this story with a light heart because I don’t believe I have the words to portray the honor and humility I feel as a very regular mom who has been offered this opportunity.  An opportunity that culminates much of the work I have dedicated my life to for the last five years.  And an opportunity that will very much live in the hearts of my family for the rest of their lives.

Noah and I will speak at the White House event celebrating the 40th Anniversary of the IDEA, Individuals with Disabilities Education Act on Tuesday, November 17, 2015, at 9:30 am. This event can be watched live on this link: https://www.whitehouse.gov/live