Members of the Beaufort County (S.C.) School Board and district Superintendent Herman Gaither have come under fire for using a private internet bulletin board to discuss school district matters. The private electronic forum might constitute a violation of the state’s freedom of information laws, a South Carolina media attorney says.
The issue raises questions about how existing laws meant to ensure the open exchange of public information should be applied to modern technologies such as eMail and the internet.
Gaither said he set up the bulletin board so he could share information with board members on “sensitive or semiprivate information.” Only Gaither and board members had access to the site, which let them read and respond to internal messages.
Jay Bender, the attorney for the South Carolina Press Association, said the state’s Freedom of Information Act prohibits public agencies from using technology to conduct their business in private and that the bulletin board might violate the law.
“It seems to be inconsistent with the law that prohibits using electronic communications to avoid the act,” Bender said. “It looks to me like a meeting, and it looks like a means for the superintendent to avoid the law by discussing public matters out of the public view.”
The law in question is the state open-meeting, or “sunshine,” law. All 50 states have some form of sunshine law ensuring that matters of public interestsuch as school board meetingsare open for public inspection.
Gaither and the attorney for the Beaufort County School Board, Ken Childs, said the bulletin board never was used in an illegal manner. Still, Gaither ordered the bulletin board shut down after the Hilton Head Island Packet cited the Freedom of Information Act and asked to see printouts of the messages.
Whether the bulletin board is legal is a gray area in the law, some would argue.
Robb McBurney, a spokesman for South Carolina Attorney General Charlie Condon, said Condon’s office might rule on the legality of government agencies using private internet bulletin boards, but a public official must first request such a ruling.
“It’s one of those things,” McBurney said. “It’s the changing internet world. The whole world of internet message boards and things like thatit’s revolutionizing society and changing the way government and society operate. It’s an interesting question.”
Other states have had similar controversy involving their sunshine laws and new technologies. In 1998, the Florida attorney general concluded that Florida law allows state-funded agencies to hold electronic meetings, but stipulates that a meeting is only valid if a quorum of board members are physically present. Therefore, teleconferencing of all members of a meeting is not legal, but if one member is absent, he or she can attend a meeting electronically.
Florida also concluded that eMail constitutes a public record, and all eMail exchanges by school district employees must be captured and stored so they can be reproduced upon request.
Virginia’s view of the issue is far stricter. The use of eMail, telephone, or video to conduct meetings at which board members are not physically present is a violation of that state’s law.
“Open-meeting laws vary from state to state,” said attorney and school law expert David Splitt. “For example, in Florida two or more school board members discussing school business constitutes a meeting. In South Carolina, there must be a quorum of board members before the open meeting law applies. It can get very complicated.”
The South Carolina Freedom of Information Act defines a meeting as the convening of a majority of a public body, whether in person or using electronic equipment, to discuss matters it controls.
The form this correspondence takes is irrelevant, according to Splitt. He said the real issue is whether the topics discussed on the bulletin board were topics the public has a right to hear about, under the law.
“I’d say this does not necessarily sound like a violation, but it depends on what they were discussing. The South Carolina open-meeting law applies to certain records regardless of their form, and that includes eMail or bulletin boards. The question here is not what form the records are in, but what the records are actually of,” Splitt said.
Board members contacted by the Island Packet and the Associated Press said they did not think the bulletin board was illegal.
Outgoing School Board Chairman Charles Kresch, who said he was an infrequent user of the forum, said it was never meant to be used to conduct public business in secret.
“It was never designed to be illegal or clandestine,” Kresch said. “It was designed to make us more efficient and more knowledgeable. There’s no reason why we can’t have some things that are sensitive. That can’t be denied. The objective is not to have six-hour meetings, where you don’t have productive [discussion].”
Board member Pam Edwards told the Associated Press that she found the bulletin board useful. As a new member of the school board, Edwards said she often used it to ask other board members for background information on issues.
Edwards said she did not think using the bulletin board constituted an illegal meeting, but she also said she would have no problem giving the public and the media access to messages that were posted.
“My advice to schools is to check your own state law. They are all different,” Splitt said.
Beaufort County School District
South Carolina Press Association
Hilton Head Island Packet