“‘Remember, if it sounds too good to be true, it probably isn’t!’”: Out of state superintendent search firm communications subject to state FOIA statutes
By Kimberly S. Croyle, Esq.
Q: Our board wants to use an out-of-state search firm in our superintendent’s search. The search firm told us that all of our communications with it would be exempt from disclosure under the West Virginia Freedom of Information Act. Is that true?
A: No! The West Virginia Freedom of Information Act’s preamble states:
Pursuant to the fundamental philosophy of the American constitutional form of representative government which holds to the principle that government is the servant of the people, and not the master of them, it is hereby declared to be the public policy of the state of West Virginia that all persons are, unless otherwise expressly provided by law, entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments of government they have created. To that end, the provisions of this article shall be liberally construed with the view of carrying out the above declaration of public policy.
In reviewing requests made pursuant to the West Virginia FOIA, courts have relied on this preamble to “allow as many public records as possible to be made available to the public.” The courts strictly construe compliance with the West Virginia FOIA, as well as its exemptions, including the exemption for “[i]nternal memoranda or letters received or prepared by any public body.”
Some entities claim that because a record is not in the actual possession of the school board, it is not subject to disclosure. Do not be fooled by these claims! In 2015, the legislature revised the definition of a “public record” to mean “any writing containing information prepared or received by a public body, the content or context of which, judged either by content or context, related to the conduct of the public’s business.”
In doing so, the legislature removed from the statute the requirement that public records must be “owned and retained by a public body.” Even prior to the 2015 revisions, West Virginia courts have focused on the right of the public to inspect a record relating to the public’s business, regardless of whether the public body actually possessed the record.
Therefore, even if the documents are maintained by the third party search firm, if the documents relate to the conduct of the public’s business and are prepared at the direction of the public body, they very well may be subject to a West Virginia FOIA request directed to the county board of education.
If the school board can show that the records “reflect the agency’s group-thinking during its deliberative or decision-making process . . . [or reflect] outside consultants or experts whose opinions or recommendations are sought by a government agency in the course of its policy making process, it may be able to protect from disclosure documents or other letters exchanged by a school board and any firm or consultant assisting in the search. Under this exemption to the West Virginia FOIA, our Supreme Court of Appeals has ruled that the document at issue “must be both predecisional and deliberative in character.” Daily Gazette v. W. Va. Development Office, et al, (http://www.courtswv.gov/supreme-court/docs/fall1996/23560.htm). However, the Supreme Court went further in its decision to explain that the exemption “does not extend to materials which are factual in nature, even if such material may have been used by the government decision maker in their deliberations.”
What does that mean when conducting a search for a new superintendent?
First, start with transparency. Not only does the law require it, but it allows the public to participate in one of the most important tasks the school board undertakes. Remember, the entire process - from hiring the consulting firm and how much you are spending, to the execution of the superintendent’s contract, is subject to disclosure.
Second, explain up front, on the application, that the applications and accompanying documents may be disclosed pursuant to a West Virginia FOIA request.
Finally, even if there are documents exempt from disclosure as described above, or like those that are protected by the attorney-client privilege, make sure you properly and timely respond to the request, despite the fact that documents may be withheld.
Editor’s Note: Croyle is a member of the Bowles Rice LLP Education Group. In addition part of her practice involves the firm’s energy law sector. In terms of county boards, Croyle offers advice and guidance throughout the state on education law issues, including bullying and harassment, special education issues (IDEA), §504 accommodations, personnel matters, Title IX, FERPA, Title VII, the ADA and general school laws. She frequently appears on behalf of her clients before the West Virginia Public Employees Grievance Board; at due process hearings and mediations; in state and federal court; and before the Supreme Court of Appeals of West Virginia