FOI Advisory Council Opinion AO-05-07

AO-05-07

May 7, 2007

Keil Stone, Editor-in-chief
Jeremy Beales, Managing Editor
Broadside
George Mason University


The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your electronic mail of March 9, 2007.

Dear Mr. Stone and Mr. Beales:

You have asked numerous questions regarding the status of the Student Government at George Mason University (the University) as a public body subject to the Virginia Freedom of Information Act (FOIA). As background, you have indicated that the Student Government is comprised of executive, legislative, and judicial branches. The legislative branch, the Student Senate, receives public funds and is responsible for making budgetary decisions and distributing those funds to the other branches of the Student Government and other student organizations. Recently, the Student Senate has impeached a former Student Senator1 and the Student Government President, which has prompted many of your questions regarding the Student Government's responsibilities under FOIA. Further facts and questions will be presented below.

Your initial question asks whether the Student Government should be considered a single public body or three separate public bodies under FOIA, and how the distinction affects the obligations of each branch of Student Government. Public body is defined in § 2.2-3701 to include
 

any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds as well as any committee, subcommittee, or other entity however designated, of the public body created to perform delegated functions of the public body or to advise the public body. It shall not exclude any such committee, subcommittee or entity because it has private sector or citizen members.

Following prior opinions of the Attorney General and this office, the Student Government is considered a public body subject to FOIA because it is an organization ... in the Commonwealth supported wholly or principally by public funds.2

However, whether the Student Government is solely a single unified public body or is also three separate public bodies is not a useful distinction in this situation. Looking to the organizational structure of the Student Government, it is analogous to most governments in the United States: it is one government with three branches, each of which may act independently, but together form a single whole. Rather than trying to define the Student Government itself as one body or three, for FOIA purposes it is more useful to look directly at the responsibilities FOIA imposes regarding public records and meetings.

Subsection B of § 2.2-3704 places responsibility for responding to a records request upon the custodian of the requested records, but FOIA does not define the term custodian. As a practical matter, one must consider the nature and activities of each branch in determining its responsibilities under FOIA. For example, all three branches are part of the Student Government and all three hold public records in the transaction of public business. All three branches are therefore responsible to respond to records requests made pursuant to FOIA. However, to the extent that each branch is the independent custodian of its own records, each is independently responsible for responding to requests for such records. You asked whether it is necessary for all requests for Student Government records to be directed to the President, or whether requests could be directed to the heads of each individual branch. Looking outside of FOIA for guidance, § 42.1-77 of the Virginia Public Records Act (VPRA) defines custodian to mean the public official in charge of an office having public records. Applying this definition in the context of FOIA and Student Government, records requests may be directed to the head of each branch of Student Government - i.e., to the custodian with the responsibility to keep and maintain the records. At the same time, because each branch is part of a unified whole, it is expected that members of one branch will forward requests to the other branches or redirect requesters to the proper custodian in another branch, as needed. Based upon my understanding of the structure of the Student Government as set forth in its Constitution, and following the definition of custodian provided in the VPRA, the record custodians of each branch would be the President (executive branch), the Speaker (legislative), and the Chief Justice (judicial).

Considering meetings subject to FOIA, the § 2.2-3701 defines the term meeting to mean
 

the meetings including work sessions, when sitting physically, or through telephonic or video equipment pursuant to § 2.2-3708, as a body or entity, or as an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body. The gathering of employees of a public body shall not be deemed a "meeting" subject to the provisions of this chapter.

Considering the different branches of the Student Government, the Student Senate is a legislative deliberative body with voting members (the Senators). Therefore a gathering of Senators may be a meeting subject to the requirements of FOIA. By contrast, the executive and judicial branches generally do not have a constituent membership as is required to form a quorum. Executive and judicial branches are generally formed of individual officers and employees rather than as deliberative bodies, and generally do not hold meetings subject to FOIA.3 For that reason, the Student Senate generally will be subject to the meetings requirements of FOIA, while the executive and judicial branches generally will not.

Next, you asked about the consequences if the Student Senate fails to properly cite a specific exemption to open meeting requirements. You ask, for example, whether matters discussed in an improperly closed meeting become open to public disclosure, and what consequences ensue from a regular failure to move in and out of closed session properly. FOIA does not mandate automatic consequences in such situations, but provides a mechanism for individuals to enforce their own FOIA rights. The remedy for noncompliance under FOIA is to seek a petition for mandamus or injunction in either general district or circuit court. My understanding is that judges may exercise discretion in crafting orders of mandamus or injunction appropriate to each situation, and so the remedies may vary depending on the facts involved. For example, in at least one reported opinion where there was no written record of what occurred in a closed meeting, the court took depositions under seal from those who were present at the meeting. Upon finding that the closure of the meeting was improper, the court ordered those depositions to be made public as evidence of what happened at the meeting.4 If written minutes were taken during an improperly closed meeting, a judge might order those to be made part of the public record. By contrast, if there was a proper exemption covering the closed meeting, but the public body made a procedural error in closing the meeting, the remedy might be different entirely. For example, in such a situation a judge might admonish the public body and order it to follow proper procedure in the future, but might not require the revelation of what happened during the closed meeting. In summary, the possible remedies may be as varied as the possible violations; only a court may determine what remedy is appropriate under a particular set of facts.

You also asked whether a matter decided in closed meeting is void if it is not voted upon in open meeting. Subsection A of § 2.2-3710 states that [u]nless otherwise specifically provided by law, no vote of any kind of the membership, or any part thereof, of any public body shall be taken to authorize the transaction of any public business, other than a vote taken at a meeting conducted in accordance with the provisions of this chapter. In regard to a closed meeting, subsection B of § 2.2-3711 states that [n]o resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion that shall have its substance reasonably identified in the open meeting. If a public body has properly convened in closed session, it may, while still in closed session, reach a tentative agreement about the topic of business being discussed. However, following subsection B of § 2.2-3711, the substance of that agreement will not become effective until it is identified at an open meeting, and voted on by the membership.5

Next, you asked whether the Student Government is an educational agency capable of claiming the scholastic records or meeting exemptions found at subdivision 1 of § 2.2-3705.4 and subdivision A 2 of § 2.2-3711, respectively. Under § 2.2-3701, scholastic records are defined as those records containing information directly related to a student and maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution. The phrase educational agency or institution is not defined in FOIA. The University itself is a state-supported institution of higher education pursuant to § 23-9.5. While the Student Government is inextricably intertwined with the University, the two are nonetheless separate entities;6 the Student Government is not deemed an educational agency or institution merely by association with the University. Looking to common usage, educational means of or relating to education or serving to educate; instructive.7 Such is not the purpose of the Student Government. The Student Government Constitution indicates that the Student Government was formed to establish justice, promote the general welfare, and provide for a common foundation of student governance. Therefore, while it is closely related to the University, the Student Government is not itself an educational agency or institution. However, depending on the factual circumstances involved, it is possible that the Student Government or members thereof may be person[s] acting for [the University].

Whether the Student Government may exercise the scholastic records exemption found in subdivision 1 of § 2.2-3705.4 will therefore depend upon the factual circumstances in question.8 Generally, records over which the University holds custody and that otherwise meet the definition of scholastic records will be exempt in the hands of the Student Government when the Student Government is acting on behalf of the University. However, records solely in the custody of the Student Government, created by Student Government, and not shared with the University would appear to fail to meet the definitional requirement that they be maintained by a public body that is an educational agency or institution or by a person acting for such agency or institution. In regard to your query, then, the Student Government is not an educational agency or institution, but at least in some instances, it may exercise the exemption for scholastic records. In the context of records generated during the impeachment process, you did not provide specific facts regarding how the records are generated and kept. If it is presumed that such records would be created by the Student Government for use by the Student Government in regard to one of its own members, and that the Student Government is not acting for the University in conducting the impeachment and maintaining these records, then such impeachment records could not be exempted from disclosure as scholastic records.9

In regard to meetings, subdivision A 2 of § 2.2-3711 allows a closed meeting to be convened for the following purposes:
 

Discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning any student of any Virginia public institution of higher education or any state school system. However, any such student, legal counsel and, if the student is a minor, the student's parents or legal guardians shall be permitted to be present during the taking of testimony or presentation of evidence at a closed meeting, if such student, parents, or guardians so request in writing and such request is submitted to the presiding officer of the appropriate board.

This closed meeting exemption does not require that a public body be an educational agency or institution in order to exercise the exemption. Therefore the Student Government, as any other public body, may exercise this exemption to hold a closed meeting so long as the other conditions of the exemption are met. In the context of impeachment, it is clear that the President of the Student Government and a Student Senator are both students at the University, which itself is a Virginia public institution of higher education. It follows then that any discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning the President or a Senator may be conducted in a closed meeting pursuant to this exemption. To the extent that matters discussed or considered do not involve information contained in a scholastic record, however, this exemption would not apply.

Finally, you asked whether the impeachment of a public official would be an appropriate topic for a closed meeting held pursuant to subdivision A 1 of § 2.2-3711. That subdivision permits a public body to convene in a closed meeting for the following purposes:
 

Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board.

You proposed that impeachment would not be considered the same as disciplining, because impeachment is a more specific term. The term impeachment is defined as the trying of a public official for charges of illegal acts committed in the performance of public duty.10 To impeach is to charge with malfeasance in office before a proper tribunal.11 As a noun, the term discipline is defined as punishment inflicted by way of correction and training12 or as punishment intended to correct or train.13 From these definitions it is clear that impeachment is a process that may lead to punishment for misconduct (usually removal from office), but is not the punishment itself. By contrast, disciplining in this context refers to the discussion or consideration of imposing punishment. Effectively, impeachment is a discussion or consideration of whether an official should be disciplined. As such, it would appear to fall within the scope of the disciplining, as the broader concept (disciplining) encompasses the narrower concept (impeachment). Additionally, it is clear that impeachment necessarily involves the discussion or consideration of the performance of an individual officer, appointee, or employee of a public body. Because such a discussion or consideration of performance is also allowed under the exemption, impeachment is a permitted purpose under that aspect of the exemption.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

1. It is my understanding that the Student Senator in question had already left office before impeachment proceedings were commenced.
2. Freedom of Information Advisory Opinion 18 (2003) and 23 (2001) ; 1984-1985 Op. Att'y Gen. Va. 431 ; 1977-1978 Op. Att'y Gen. Va. 482 .
3. There are situations where a board, commission, or other deliberative body that holds meetings subject to FOIA will be part of an executive or judicial branch of government, but this is atypical, not the norm. Based upon the facts presented, such bodies are not under consideration in this opinion.
4. Media General Operations, Inc. v. City Council of the City of Richmond , 64 Va. Cir. 406 (City of Richmond, 2004).
5. Freedom of Information Advisory Opinions 1 (2005) and 15 (2002).
6. Freedom of Information Advisory Opinion 18 (2003) .
7. American Heritage Dictionary 439 (2d College ed. 1982).
8. Additionally, note that prohibitions on the disclosure of certain scholastic records may be found under state law outside of FOIA (e.g. Code § 22.1-287) and under the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g. These provisions may further limit access to certain records, again depending on the factual circumstances.
9. Note that a prior circuit court opinion held that records of two honor trials and one appeal at the University of Virginia, including tapes, transcripts, and other related documents, were considered scholastic records exempt from mandatory disclosure under FOIA. Redinger v. Casteen , 39 Va. Cir. 176 (City of Richmond, 1996).
10. Definition available at http://dictionary.law.com/default2.asp?selected=901&bold=|||| (last accessed April 25, 2007).
11. American Heritage Dictionary 645 (2d College ed. 1982).
12. Definition available at http://dictionary.reference.com/browse/disciplining (last accessed April 25, 2007).
13. American Heritage Dictionary 402 (2d College ed. 1982).