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.


2 thoughts on “FOIA – Freedom of Information Act

  1. A webinar attendant followed up and asked some related FOIA questions concerning her local SEAC. I think the questions and answers can be helpful to other local SEACs and so I am posting my response with a redaction of the attendant’s school district:

    “The first issue appears to be, “Who would be the custodian of records?” Let me try to clarify this issue with your particular district.

    As you mentioned, I answered this question during the webinar stating that it would depend from school district to school district. This is generally true since each school district can designate who will be responsible for maintaining the records and how they will be maintained. For example, two school districts local to me are the City of Alexandria and Fairfax County. The City of Alexandria designates its Chief Technology Officer as the primary records custodian, while Fairfax County Public Schools has created its own FOIA Office to handle FOIA requests. From what I gather of [ATTENDANT’S] County, it appears that the Superintendent’s office is designated as the records custodian.

    Since LSEACs are advisory committees appointed by the local school board, they are effectively subdivisions of the school district. Accordingly, it would make the most sense that the records custodian of the school district should also act as the LSEAC’s ultimate records custodian.

    Typically if a FOIA request is made, and the requested documents are not in the custodian’s immediate access (e-mails between LSEAC members, draft minutes that were not provided, etc.), the custodian will normally contact the LSEAC to ask for the requested records. However, your LSEAC can also designate its own internal records custodian (if you want to be particularly organized and efficient) who would be responsible for aggregating and maintaining all of the LSEAC’s documents, and can either hold them until asked by the school district records custodian to provide needed documents, or to regularly provide the records to the school district’s custodian ahead of time. The latter option would likely require discussing with the school’s records custodian a process to transfer those documents, so it may be easier to just have an internal LSEAC records custodian hold the documents until asked otherwise. A Secretary position may suffice, or a distinct Records Custodian role can be used.

    The second issue appears to be, “What governance procedures should be enacted to assure FOIA compliance?”

    The short answer is that you can establish procedures consistent with however your school board and/or LSEAC regularly establishes rules, policies, and procedures. This means that if your LSEAC has bylaws (I suggest this option), you can vote to amend them and they will govern your LSEAC’s activities from then on. If a LSEAC does not use bylaws, but rather more informal methods such as resolutions (stored in a binder or similar storage location), this is an acceptable method for governance as well.

    As for specific procedures to be enacted, I would recommend creating specific policies that can help the SEAC conduct business in a manner that mirrors FOIA’s requirements. For example, a ‘Voting’ section could be added that discusses your SEAC’s requirements for how many votes are required to pass (simple majority (51%), super majority (2/3 or more), etc.); and the process by which votes are conducted (ex: a member makes a motion, then must be voted upon). Likewise, sections can be included that describe the requirements for opening/closing meetings, means by which the public can participate electronically, restrictions on member participation via electronic communications (except under those limited circumstances), what the meeting minutes should include, or anything else that you believe will help your SEAC operate more formally and in compliance with FOIA.

    The best resource to look to for guidelines concerning the topics I went over in the webinar is the Freedom of Information Advisory Council’s website. Their resources are searchable on their webpage, as well as pretty effectively using Google with keywords like “Virginia FOIA [topic of interest].” They have good guidance concerning use of e-mails, electronic meetings, opening/closing meetings, and other related topics.”

    Please contact me or post any other questions that you have regarding FOIA’s application to your local SEAC. Thank you.

    – Tim


  2. Pingback: » The Freedom of Information Acts: “Discovery” Tools for Plaintiffs in Special Education Litigation

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