Q: A county board of supervisors has discussed appointing an interview panel to screen applicants for an open position. The board has five members. The interview panel would consist of two board members, a member of the county economic development authority, a representative from the Chamber of Commerce, the county administrator and possibly a citizen member. The panel will conduct a first round of interviews and recommend applicants to the board for a final round of interviews.
Should the interview panel inform the media when and where they will be meeting? Doing so has the potential of compromising the privacy of individuals who have applied for the position and could be seen entering or exiting the meeting. Some of these individuals may not have informed their current employers that they have applied for another position.
A: The FOI Advisory Council recently addressed the application of FOIA to committees and subcommittees. The council asks first if the committee is a “legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth” that is wholly or principally supported by public funds.
If it is, then clearly it’s subject to FOIA. If it’s not, the next question becomes: Was the committee/subcommittee created by another public body to perform a delegated function for, or provide advice to, that public body.
If it has been, then it’s subject to FOIA.
To me, the interview committee is a public body subject to FOIA because it has been created to advise the board of supervisors about the best candidates for the open position, even if it has members who are not on the board of supervisors. All kinds of advisory boards include citizen members and members of other public bodies, and the inclusion of those members does not turn an otherwise public body into an private one.
As you know, the public body can go into closed session to interview and discuss personnel issues, and the closed meeting could be the only thing on the agenda for that meeting. But, the meeting must still be convened in public, the motion to go into closed meeting must be made in public, and the closed meeting must be certified in public upon completion.
FOIA does not require that notice be given directly to the media unless they have requested notice of regularly scheduled meetings. However, FOIA does require notice to be posted in the clerk’s office and other places notices are usually posted.
While I understand your concern about the delicacy of some candidates’ situations — having not told their current employers — it is not the role of government to shield those individuals from the choice they are making to seek this job. There’s always the risk of being seen or found out. Candidates for a job in the public or private sector frequently have to be circumspect in their dealings, but their decision to tell or not tell their current employer is not something the prospective employer is required to accommodate, especially at the risk of creating suspicion among citizens that the process is being conducted secretly.
Q: How is “public business” defined? Also, is it possible for a public body to prepare and be in possession of documents that would be considered “private business” and therefore not subject to FOIA?
A: When a term is not defined in a statute, its ordinary use is presumed, and I think most people — when they hear the term “public business” — think it refers to anything having to do with the work of the government. It would include records and meetings about big decisions, and would go down all the way to records the number boxes of paper clips in the supply closet.
While the argument can be made that anything done by public employees, who are paid by public tax dollars, is public business, most people commonly acknowledge that there is undoubtedly private business done in the public workplace. For instance, an employee’s e-mail to the rest of the office that there’s a cake in the break room to celebrate Mr. X’s birthday would be private business. Recently, the FOI Advisory Council determined that despite his use of university letterhead, a George Mason University law professor’s letter commenting on the selection of a particular federal judge was a private matter.
Correspondence between an employee and a private individual about the work done by the government day in and day out, however, would not be private, and should be disclosed under FOIA.
What constiutes “public business” is a lot like the case of pornography: you may not be able to define it, but you know it when you see it.