The case arose last year when Clifton parent Jill DeMello Hill filed a lawsuit in an effort to force a revote on the school’s closure and a broader examination of whether e-mails pinging between BlackBerrys and laptops have allowed the kind of private deliberations that the state law is meant to prevent.
“Decisions were made, people created alliances, and people went into that meeting already knowing which way they were voting,” Hill said of the board’s e-mail about Clifton. “That’s not the way it’s supposed to work.”
Fairfax officials declined to comment because the case is pending. But in a court brief, the school system’s lawyers argued that board members followed state law as it’s currently interpreted — and that further constraints on communication among members would disrupt the delicate balance between government transparency and efficiency.
“[I]t would undermine effective government if Virginia’s open-meetings laws were made so restrictive that they chilled or prohibited substantive discussions between two officials outside of the confines of a public meeting,” the brief said.
The case reaches the state high court as advocates across the country raise questions about how governments have interpreted sunshine laws in an age of rapid and ubiquitous electronic communication.
“It’s something that is bubbling everywhere,” said Mark Caramanica of the Arlington County-based Reporters Committee for Freedom of the Press. So far few cases have made their way to an appeals court, Caramanica said, “but I expect to see more and more.”
In Michigan, an environmental group sued the Ann Arbor City Council in 2009 over the use of e-mail — during a public meeting — as members were deliberating whether to build a parking structure.
That case was settled out of court in 2010. The council has since passed a rule prohibiting members from communicating electronically with one another during public meetings.
In Utah, the state legislature passed a bill last year that shielded elected officials’ electronic communications — including text messages, e-mails, video recordings and instant messages — from being released in response to public records requests. The law was repealed almost immediately after public outcry.
In the Fairfax case, justices will have to determine whether School Board members’ e-mails involved “virtually simultaneous interaction.”
That is the standard the state Supreme Court set in 2004, when it decided that e-mails sent among Fredericksburg City Council members — at intervals ranging from four hours to two days apart — were not “virtually simultaneous” and thus did not count as a meeting.