Of course an email is not a meeting. It’s mail. Electronic mail. It’s no different from sending your friends, colleagues and co-workers notes thrown over the cubicle wall; or dispatching a messenger to deliver a memo across town; or actually putting a stamp on an envelope and — mon dieu! — dropping it in a mailbox for the postman to spirit away to its intended.
Of course an email is not a meeting. It’s one-on-one communication. Except when it isn’t. Except when it’s three, six, 10 or 20 people getting the same message. Except when the email is forwarded to three, six, 10 or 20 more people, and when everyone can see what everyone else has been saying.
Of course an email is not a meeting. No one is sitting around a conference cable twirling their pencil, shuffling papers, texting with their tennis partner, rolling their eyes when that one guy starts talking. Except when the substance of the discussion is rich with detail, bolstered by attachments and punctuated with passionate arguments for and against.
Of course an email is not a meeting. And the Virginia Supreme Court said so, again, last week. When parents unhappy with the Fairfax County Public Schools’ decision to close Clifton Elementary School asked for copies of the email school board members exchanged prior to the decision, they were shocked to receive literally hundreds of messages. Not just hundreds of messages about a lot of different topics, but hundreds of messages about the proposed school closure. And all within a few days of and right up to the meeting where the vote to close the school was taken.
Of course an email is not a meeting. And the high court’s opinion reaffirmed a decision eight years ago that said the same thing: a meeting requires an “assemblage” of three or more people, and there must be an element of “simultaneity” in the discussion. There was no assemblage in this case because most exchanges were only between two people, and FOIA’s meeting provisions only kick in when three people of a board the size of the Fairfax school board get together. And there was no simultaneity because there were spans of time in between messages.
Of course an email is not a meeting. In its 2004 opinion, the court said its decision might be different if a board’s members were gathered in a “chat room” or were using instant messaging. In its June 7 opinion this year, the court acknowledged that current technology “has increased both the ability to access all forms of electronic communication and the rapidity with which a response can be sent.” The court said, however, that the facts of this case were similar enough to the earlier decision’s facts as to not have to drive down the current-technology road.
Of course an email is not a meeting. And I think the court was probably right in this case. But that doesn’t mean I don’t share the frustration of the parents in this case and in the many other instances around the Commonwealth where board members hash out all the arguments and details of the public’s business in emails and texts instead of in front of the public they serve. Where the meetings become echo chambers, where the vote becomes a pro forma ratification of whatever they’ve worked out through email.
Of course an email is not a meeting. Email is a record, and those records are subject to disclosure under FOIA. A citizen who wants those emails may have to wait five, seven or maybe more days to get them, though. And exemptions can be applied. And the citizens might have to pay for them. All of which can be pretty galling to a citizen who thought he or she would be able to see and hear the discussion immediately, uncensored and for free during the meeting itself.
Of course an email is not a meeting. Or is it?