One of the many worries that I have as a school attorney is when school board members use their e-mail account to discuss board business. As you may know, such conduct can run afoul of Connecticut’s Freedom of Information Act (“FOIA”). The purpose of this column is to give a friendly reminder and to review a new decision from Connecticut’s Freedom of Information Commission (“FOIC”).
The “inadvertent meeting.” A meeting that is subject to the FOIA includes any communication by or to a quorum of a public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the agency has supervision, control, jurisdiction or advisory power. In light of this broad definition, the FOIC had ruled that a series of e-mails by and between a quorum of board members concerning board business may be deemed to be a “meeting” subject to the FOIA. Accordingly, if a quorum of board members e-mail one another and engage in a back and forth to discuss board business (including by taking a poll on how to vote on an upcoming matter), they may have conducted a “meeting” in violation of the FOIA’s notice and open meetings requirements.
As an example, the FOIC has found a violation of the FOIA where a quorum of board members e-mailed each other with respect to developing a public statement. The FOIC found that such e-mail communications (including “e-mail polling” to determine if a majority of the board would support issuing a public statement) constituted “communication by or to a quorum” of the board “by means of electronic equipment” and thus was a meeting under the FOIA that had not been properly noticed or opened to the public.
How much “back and forth” must take place for there to be a “meeting”? This is where things get a bit jumbled. In 2007, the FOIC in Shea v. PZC, Town of Stonington ruled that where there was “no give and take or back and forth exchanges between the various members” of the agency and where no members of the agency replied to the chairman’s e-mail (which concerned agency business), an illegal/un-noticed meeting had not occurred.
Subsequently, the FOIC appeared to suggest that any dialogue amongst public agency members in response to an e-mail may constitute a “meeting.” In a 2014 decision (Mauer v. Toensing), a member of a school board sent an e-mail to all of the other members of the board that included substantive discussion of board business and requested the “courtesy of a written response.” The board chairman (only) responded by an e-mail (apparently sent to the entire board) informing the board member that her original e-mail violated the FOIA. The FOIC (ironically) concluded that due to the subsequent reply e-mail pointing out the possible FOIA violation, the original e-mail constituted an illegal, unnoticed meeting.
However, in a decision just issued on January 10, 2024 (Gookins v. Member, Representative Town Meeting, Town of Groton), the FOIC did NOT find a violation of the FOIA where a member of a public agency admittedly sent e-mails to a quorum of the agency concerning agency business when no other member replied to those e-mails. The FOIC stated that while its prior decision in Mauer arguably may be construed as concluding that a single e-mail from one member of an agency to a quorum of the agency could constitute a meeting, it noted that the FOIC now does not endorse the view that a single e-mail to a quorum “without more” constitutes a meeting.
Common sense and practical pointers: In the Gookins decision, the FOIC cautioned that communicating by e-mail about agency business may inadvertently initiate an illegal meeting, especially if the e-mail contains “substantive comments” about agency business. The FOIC noted that while a single, isolated e-mail from one member to the other members may not be a meeting, such an e-mail may then “elicit a response from one of more other members, even if the sender did not intend to do so.”
As such, it is better to be safe than sorry. School board members should not use e-mail as a substitute for discussion or deliberation at public meetings, and should bear in mind the following: first, be wary of sending an e-mail to the entire membership (or quorum) of the board that discusses board business (due to the possible unintended consequences caused by members replying); and second, if you receive such an e-mail, do not reply (and especially do not hit the “reply all” button). It is best that any e-mail sharing information with the entire board prior to a meeting clearly warn the recipients against replying to the e-mail. PLEASE NOTE: The FOIA explicitly provides that a communication limited to notice of a meeting (and an agenda) does not constitute a meeting.
Please note: this post is adapted from an article written by the author for the March 2024 edition of the CABE Journal
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