In FOIA Ruling, Virginia Supreme Court Upholds Public’s Right to be in Meeting Rooms

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By Graham Moomaw, The Virginia Mercury

April 28, 2023

by Graham Moomaw, Virginia Mercury

Government bodies in Virginia cannot ask the public to sit in a separate room and observe their meetings through a video feed only, according to the Supreme Court of Virginia. 

In a unanimous opinion released Thursday, the high court concluded the Suffolk City School Board violated the Virginia Freedom of Information Act in the summer of 2021 by telling Deborah Wahlstrom, the education consultant and author who filed the lawsuit, she wasn’t allowed to sit in a school classroom where the board was holding a daylong meeting focused on strategic planning and board training. 

Officials told Wahlstrom she could watch the meeting remotely from a different room, but Wahlstrom insisted she had a right to be physically present in the room where the meeting was taking place. The dispute escalated to the point that police were called to deal with Wahlstrom, according to court records, and Suffolk Schools Superintendent John Gordon III told the responding officer Wahlstrom was “an enemy of the school division.” Wahlstrom was ultimately escorted off school property, preventing her from observing the meeting virtually.

The state’s highest court ruled there was no legal justification for the school division to deny her access to the meeting room, rejecting the argument from school officials that the rule was based on COVID-19 social distancing protocols. In an opinion written by Justice Wesley G. Russell Jr., the Supreme Court upheld a lower court’s opinion that “free entry” to public meetings means entry to “the physical space where the meeting is being conducted.”

“As the trial court found, it was not room size, logistics or COVID precautions that prevented Wahlstrom from attending the meeting in person in the meeting room; it was the fact that, prior to the meeting, the Board decided to deny the public free entry to the meeting room,” Russell wrote. “Thus, the Board violated VFOIA.”

Thursday’s ruling marks the second time this year the Virginia Supreme Court has ruled in favor of traditional public meetings and against virtual formats popularized during the pandemic. Last month, the court voided a zoning ordinance Fairfax County approved two years ago after ruling the COVID-19 emergency did not empower local officials to conduct non-emergency business virtually without an in-person meeting.

The court’s opinion this week noted that public bodies aren’t required to allow everyone into a meeting room if public seating areas are full, and its ruling does not invalidate overflow viewing rooms as a way to increase public access. But the court ruled public bodies can’t “select, design or arrange a meeting room in a manner that artificially limits or removes the ability of the public to attend in person.”

In appealing the case to the Supreme Court, the Suffolk School Board was also attempting to avoid having to pay Wahlstrom nearly $20,000 the lower court ordered it to pay to cover the costs and attorney fees of winning her FOIA case.  Because the board meeting was a retreat during which no votes were taken and some School Board members erroneously believed they were complying with FOIA, the School Board had asked the Supreme Court to overrule the award of fees to Wahlstrom.

The Supreme Court’s opinion repeatedly notes a lower judge had called the School Board’s conduct “shameful,” and the higher court ruled there was no basis for overturning the monetary award to Wahlstrom as erroneous or unjust.

“There is sufficient evidence in the record to support the trial court’s characterization of the Board’s treatment of Wahlstrom,” the Supreme Court opinion says.

Kevin Martingayle, a Virginia Beach lawyer representing Wahlstrom in the case, applauded the ruling, which he said shows Wahlstrom was correct in her belief that “citizens and the press are entitled to attend public meetings in person whenever possible.”

“This entire episode reflects poorly on the leadership of Suffolk Public Schools and makes one wonder if some public officials hold themselves to a standard lower than what they apply to the children and adults they are supposed to lead,” Martingayle said. “The School Board and superintendent owe Dr. Wahlstrom and the public an apology.”

Martingayle said Wahlstrom will now be able to recover additional fees and costs to cover the expense of having to continue to press her case after the School Board fought the lower court’s decision.

Suffolk School Board member Sherri Story — who has clashed with other school officials over FOIA issues in the past and said at the 2021 meeting she felt the board was violating FOIA by removing Wahlstrom — said she was embarrassed Suffolk school officials lacked the “common sense” and FOIA knowledge “to have even pursued this case from the beginning.”

“The Suffolk taxpayers have probably lost nearly a half a million dollars on these repetitive FOIA losses,” she said.

Other members of the Suffolk School Board and superintendent did not immediately respond to requests for comment on the ruling.

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