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Virginia Politics
Posted at 02:20 PM ET, 07/16/2011

Fairfax County judge dismisses Clifton parent’s lawsuit accusing school district of violating FOIA law

A Fairfax County judge dismissed a lawsuit filed by a Clifton parent that accused the county School Board of violating the Virginia Freedom of Information Act while deliberating the closure of Clifton Elementary School last year, the school district said Friday.

The lawsuit, filed by Jill DeMello Hill, accused the board of conducting secret meetings through e-mails and failing to produce public documents relevant to the decision, and claimed that those FOIA violations had tainted the democratic process enough to warrant overturning the board’s controversial decision last July to close the school.

But Fairfax County Judge Leslie M. Alden found that the board’s e-mail traffic about the school did not amount to a clandestine meeting. Although the judge did rule that the board and School Superintendent Jack D. Dale’s administration had violated other FOIA provisions on open meetings or public disclosure, she also held that the violations were too minor to justify disturbing the board’s decision.

Having already lost a related lawsuit that was appealed to the Virginia Supreme Court, some Clifton parents and community leaders saw Hill’s FOIA case as their last hope to reverse the board’s decision through legal action. Others have already focused their attention on trying to launch a charter school or winning seats on the county School Board in this fall’s election

The School Board voted July 8, 2010, to close the school, saying that problems with the school’s well water, projected enrollment declines from the current average of about 370 students, the relatively high per-pupil cost of needed renovations and other factors made keeping the school open unsustainable. But the board’s decision stirred anger in what is a mostly rural part of the county where the school was viewed as the heart of the community.

Many community leaders argued that the board’s justifications were either based on erroneous information or exaggerated, and their anger has not yet dissipated. The school’s closure — along with other controversies during Dale’s tenure, such as the district’s zero-tolerance discipline policy — is often cited as a reason for heightened interest by Democrats and Republicans in this year’s School Board elections.

Others, such as Hill, took legal action, but so far without success.

In an eight-page letter opinion dated Wednesday, Alden said that although board members sent dozens of e-mails to each other debating the merits of closing the school — up to and during the July 8 meeting itself when the vote was taken — the intervals between those e-mails were large enough that the communication could not be construed as a “virtually simultaneous interaction” that would amount to a secret meeting among themselves.

The judge, however, found that the board violated open meetings provisions by allowing one of its members, Patricia S. Reed (Providence), to participate from a remote location by watching as the meeting was live-streamed over the Web and sending e-mails to other members during the proceedings. The judge, who noted that FOIA allows public officials to participate electronically from remote locations with proper public notice, also held that Reed’s involvement in the meeting was minimal and had no real bearing on its outcome.

Calls early Saturday to Reed and the board’s past chairman, Kathy L. Smith (Sully), requesting comment were not immediately returned.

The judge also found that the superintendent’s office violated the FOIA law by improperly attempting to shield some public documents from disclosure, failing to produce the requested public documents in a timely manner, and improperly attempting to charge fees in advance of the search. The judge also said the district violated the FOIA law by sending the documents through the U.S. mail instead of sending them electronically, as requested, thereby further delaying their delivery by almost a month.

Yet these too were minor violations, the judge said, because the plaintiff eventually received the documents and because the documents did not have a substantial bearing on the board’s decision.

An attorney for the plaintiff said he believes the ruling leaves open many avenues for a appeal and predicted the decision could have a chilling effect on attempts by the public to open the board and the district to greater scrutiny.

“The dangerous thing, the bigger lesson here, is that the board now knows they can continue doing business as usual,” said Hill’s attorney, T. Michael Guiffre, adding that the school district would never have produced more than three dozen separate documents if Hill had not filed a FOIA suit to compel their disclosure. “Why did the board spend tens of thousands of dollars to keep the documents out of view when the court termed them meaningless?”

No decision has been made yet on whether to appeal the court’s decision, Guiffre said.

By  |  02:20 PM ET, 07/16/2011

 
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