Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan,
and Powell, JJ., and Koontz, S.J.
JILL DEMELLO HILL
OPINION BY
v. Record No. 111805 SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
June 7, 2012
FAIRFAX COUNTY SCHOOL BOARD
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
In this appeal, we consider whether the circuit court
correctly determined that certain exchanges of e-mails between
members of a local school board did not constitute a "Meeting"
within the meaning of Code § 2.2-3701 and, thus, did not
violate the notice and open meeting requirements of the
Virginia Freedom of Information Act (FOIA), Code § 2.2-3700 et
seq. We further consider whether the court erred in
concluding that because the citizen requesting information
under the FOIA had not "substantially prevail[ed] on the
merits of the case," Code § 2.2-3713(D), she was not entitled
to an award of attorneys' fees and costs.
BACKGROUND
The material facts of this case are not in dispute and,
despite a voluminous record, may be summarized briefly in
order to address the dispositive issues in this appeal. On
February 17, 2011, Jill DeMello Hill filed in the Circuit
Court of Fairfax County a petition for a writ of mandamus
against the Fairfax County School Board. In her petition,
Hill alleged that the Board had violated the FOIA since prior
to a public meeting held on July 8, 2010 in which the Board
voted to close Clifton Elementary School, various members of
the Board conducted an unlawful closed meeting to discuss the
closure of that local school principally through an exchange
of e-mails. Hill further alleged that the Board had violated
the FOIA by denying her access to certain public records
pertaining to the closure of Clifton Elementary by failing to
provide those records in a timely and efficient manner,
failing to provide full disclosure of those records, and/or
without justification redacting parts of the records supplied
to her.
In her prayer for relief, Hill sought a mandate that the
Board be required to provide all of the requested documents
that it had not yet provided to her and to provide unredacted
versions to the circuit court for an in camera review of those
documents that the Board maintained were exempt from
disclosure. She further sought to require the Board to make
all the requested documents available to the public for
inspection and then for the Board to conduct a public meeting
to revisit the issue of whether to close Clifton Elementary.
Hill also sought an award of attorneys' fees and costs
pursuant to Code § 2.2-3713(D).
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On March 1, 2011, the Board filed an answer to Hill's
mandamus action and expressly denied that "any meetings under
[the FOIA] were conducted by e-mail." The Board further
denied that it had improperly withheld or redacted any
documents that were subject to disclosure under the FOIA. The
Board asserted that Hill had failed to state adequate grounds
for invalidating the July 8, 2010 public meeting and the vote
to close Clifton Elementary, and that her claim for attorneys'
fees and costs should be denied.
Prior to the filing of the mandamus action, the Board had
provided a significant number of documents, primarily in the
form of e-mails exchanged by various members of the Board, in
response to Hill's FOIA request. By order of the circuit
court, the Board further provided additional documents to Hill
or to the court for in camera review in the course of the
mandamus proceeding. These documents served as the principal
basis for Hill's assertion that the Board had conducted an
improper closed meeting to discuss the closure of Clifton
Elementary prior to the July 8, 2010 public meeting. While
several of the e-mails predated the public meeting by as much
as three months, the majority were sent several days prior to
or on July 8, 2010.
The circuit court received these documents into evidence
along with the testimony of numerous witnesses at an ore tenus
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hearing held March 2 and 3, 2011. The evidence showed that in
addition to the e-mail exchanges, various Board members also
communicated by telephone and in person in the days preceding
the July 8, 2010 public meeting.
On July 13, 2011, the circuit court issued a
comprehensive opinion letter that was incorporated by
reference in an order of final judgment denying mandamus
relief to Hill. As relevant to the issues raised in this
appeal, the court expressly found that the exchange of e-mails
by the members of the Board did not constitute a meeting of
the Board for purposes of the FOIA because they did not
involve sufficient simultaneity and did not result in any
group consensus or discussion of business by any three members
of the Board outside the context of a public meeting. Thus,
the court found that Hill had not established that she was
entitled to the mandamus relief of requiring the Board to
annul its prior decision to close Clifton Elementary and to
revisit the matter.
The circuit court further found that while the Board had
violated the FOIA by its unreasonable delay in responding to
Hill's initial request for electronic copies of certain
documents, and by not releasing five documents that were not
subject to an exemption until ordered to do so by the court,
"the violations, although frustrating and vexing, ultimately
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[were] de minimis" especially as Hill had received all the
documents she had requested prior to the ore tenus hearing.
Accordingly, the court concluded that Hill had not
substantially prevailed on her FOIA challenge and, thus, was
not entitled to attorneys' fees and costs.
We awarded Hill an appeal to consider the following
assignments of error:
The trial court committed reversible error by
holding that the [Fairfax County School Board] did
not violate the FOIA's Open Meeting requirements
when its members engaged in deliberations whether to
close Clifton Elementary School via multiple
conversations and dozens of e-mail communications in
advance of the formal public meeting.
The trial court committed reversible error by
denying Petitioner's request for costs and
attorneys' fees notwithstanding the court's holding
that the [Fairfax County School Board] committed
multiple violations of the FOIA.
DISCUSSION
Our resolution of Hill's first assignment of error is
guided by our decision in Beck v. Shelton, 267 Va. 482, 593
S.E.2d 195 (2004). In Beck, we recognized that
[i]ndisputably, the use of computers for textual
communication has become commonplace around the
world. It can involve communication that is
functionally similar to a letter sent by ordinary
mail, courier, or facsimile transmission. In this
respect, there may be significant delay before the
communication is received and additional delay in
response. However, computers can be utilized to
exchange text in the nature of a discussion,
potentially involving multiple participants, in what
are euphemistically called "chat rooms" or by
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"instant messaging." In these forms, computer
generated communication is virtually simultaneous.
267 Va. at 489, 593 S.E.2d at 198.
In the intervening eight years between Beck and the
present case, information technology has advanced even
further. Real-time audio and visual communications over
Internet-connected computers between two, three, or even more
parties is now commonplace. Moreover, the increased
prevalence of "smartphones" and other mobile Internet-
connected devices has increased both the ability to access all
forms of electronic communication and the rapidity with which
a response can be sent. Nonetheless, the inquiry to be made
by the trier of fact remains the same as set forth in Beck,
which is whether a series of electronic communications of
whatever type constitutes a meeting of a public body for
purposes of applying the FOIA.
The FOIA, in relevant part, defines a "Meeting" as "an
informal assemblage of (i) as many as three members or (ii) a
quorum, if less than three, of the constituent membership
. . . of any public body." Code § 2.2-3701. In Beck, we
stated that
"assemble" means "to bring together" and comes from
the Latin simul, meaning "together, at the same
time." Webster's Third New International Dictionary
131 (1993). The term inherently entails the quality
of simultaneity. While such simultaneity may be
present when e-mail technology is used in a "chat
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room" or as "instant messaging," it is not present
when e-mail is used as the functional equivalent of
letter communication by ordinary mail, courier, or
facsimile transmission.
267 Va. at 490, 593 S.E.2d at 199 (footnote omitted). We
further noted that the legislature "anticipated that some
electronic communication may constitute a 'meeting' and some
may not." Id. at 491, 593 S.E.2d at 199. (citing Code § 2.2-
3710(B)). Thus, "the key difference between permitted use of
electronic communication, such as e-mail, outside the notice
and open meeting requirements of [the] FOIA, and those that
constitute a 'meeting' under [the] FOIA, is the feature of
simultaneity inherent in the term 'assemblage.' " Id. Thus,
as we explained in Beck, the dispositive inquiry to be made by
the trier of fact is "how the e-mail is used." Id. at 489,
593 S.E.2d at 199 (internal quotation marks omitted).
Hill contends that unlike Beck, where we held that the
exchanges of e-mails in question were " 'essentially a form of
written communication,' " like letters or facsimile
transmissions and, thus, lacked the necessary element of
simultaneity, id. at 491, 593 S.E.2d at 200 (quoting 1999 Op.
Atty. Gen. 12, 13), the e-mails between the Board members in
this case were in the nature of an ongoing discussion
involving multiple participants. On brief, citing the "sheer
volume of e-mails during a compressed time period," Hill
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contends that the evidence demonstrated the Board's "reliance
on[] using e-mail as a primary means to communicate." Hill
further contends that "[c]onsidering the time it takes to
receive an e-mail, read it, draft a response and send it, it
is difficult to fathom e-mail exchanges that would better meet
the simultaneity requirement" than those at issue in this
case. Thus, she maintains that the circuit court was plainly
wrong in finding that the e-mails did not constitute an
assemblage of at least three members of the Board constituting
an improper closed meeting in violation of Code § 2.2-3708.
We disagree.
Hill concedes that while the circuit court's
interpretation of the FOIA is subject to de novo review, its
findings of fact to which it applies that interpretation can
be overturned only if plainly wrong or without support in the
evidence. See, e.g., RF&P Corp. v. Little, 247 Va. 309, 319,
440 S.E.2d 908, 915 (1994). The circuit court's
interpretation of the FOIA in this case is entirely consistent
with Beck. Accordingly, we review the evidence as a whole to
determine whether the court's factual finding that the
communications among the Board members did not constitute an
"assemblage" under the FOIA was plainly wrong.
The circuit court's finding that no improper meeting of
the Board had occurred was premised on multiple grounds
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including express findings that "[a]lthough the e-mails in the
present case were sent in much shorter intervals than the e-
mails sent in Beck, the e-mails sent by the Board members did
not involve sufficient simultaneity to constitute a meeting,"
that "the Board [member]'s e-mails that involved some sort of
back-and-forth exchange were between only two members at a
time, rather than the three required," and that "e-mails sent
to more than two Board members" whether directly, by carbon
copy, or by forwarding, "conveyed information unilaterally, in
the manner of an office memorandum." ∗ Thus, the court
concluded that "[t]hese messages did not generate group
conversations or responses with multiple recipients."
The circuit court's factual findings are a reasonable
interpretation of the evidence regarding how the e-mails were
used. The circuit court's findings establish that the feature
of simultaneity inherent in the term assemblage is not
established in this case. Accordingly, we cannot say that the
∗
The record contains only one e-mail sent from one board
member directly to two others. This e-mail was the last reply
in an exchange of several e-mails in which the sender merely
suggested in jest that they all "need[ed] to go on a long
vacation." More typical of e-mails that involved multiple
school board members directly were those sent to the entire
board and staff members discussing changes to the agenda of
the public meeting. Many of the e-mails sent during this time
were not related to the closure of Clifton Elementary at all,
but instead dealt with other issues or were purely personal in
nature.
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court's judgment that there had been no violation of Code
§ 2.2-3708 was plainly wrong or without support in the
evidence. We therefore hold that the court did not err in
determining that the Board had not conducted an improper
closed meeting in violation of the notice and open meeting
requirements of the FOIA.
We now turn to Hill's second assignment of error
asserting that the circuit court erred in failing to award her
attorneys' fees and costs notwithstanding its finding that the
Board committed "multiple" violations of the FOIA in response
to her original request for documents related to the closure
of Clifton Elementary. Code § 2.2-3713(D) provides for an
award of "reasonable costs . . . and attorneys' fees" when a
party "substantially prevails on the merits of the case,
unless special circumstances would make an award unjust." The
issue before us then is whether Hill substantially prevailed
on the merits of her case.
The circuit court expressly found that "Hill did not
substantially prevail on the merits of her case." This was
so, the court reasoned, because "[t]he gravamen of [Hill's]
claim, that the Board met secretly by e-mail and that the
decision to close [Clifton Elementary] should be set aside,
was rejected by the Court."
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As used in Code § 2.2-3713(D), "the merits of the case"
plainly refers to the object of the action in which a claim
that the FOIA has been violated is made, and that the party
has prevailed in proving that there was some violation of the
FOIA by the public body. See, e.g., Fenter v. Norfolk Airport
Auth., 274 Va. 524, 532, 649 S.E.2d 704, 709 (2007); White Dog
Publ'g, Inc. v. Culpeper Bd. of Sup., 272 Va. 377, 387-88, 634
S.E.2d 334, 340 (2006). If the purpose of the action is
merely to force compliance with the FOIA by requiring the
public body to produce the requested documents, then a finding
by the trial court that some documents were wrongfully
withheld may satisfy the statute's requirement that the party
"substantially prevails on the merits." See RF&P Corp., 247
Va. at 323 n.5, 440 S.E.2d at 917 n.5 (holding that a party
"was required to show that he substantially prevailed on the
merits of the case, not that he prevailed on every issue he
raised"). In this case, however, the circuit court correctly
noted that the object of Hill's mandamus petition was not to
obtain the small number of documents that the court found
should have been disclosed. Nor was it to establish that the
Board had failed to supply these documents in a timely and
efficient manner. Rather, the principal purpose of Hill's
petition was to overturn the result of the Board's July 8,
2010 decision to close Clifton Elementary. As she did not
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prevail on that issue, we hold that the court did not err in
denying her request for attorneys' fees and costs.
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court denying mandamus relief to Hill and further
finding that she was not entitled to an award of attorneys'
fees and costs under the FOIA.
Affirmed.
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