Judge says School Board violated FOIA

Published 5:16 pm Tuesday, September 21, 2021

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A Suffolk Circuit Court judge has ruled that the Suffolk School Board violated the Freedom of Information Act by denying Dr. Deborah Wahlstrom access to an open meeting. 

Judge Matthew A. Glassman ruled that the School Board violated the open meeting requirements as set forth under FOIA when Wahlstrom was not allowed to view the board’s July 22 retreat from inside the meeting room at the College and Career Academy at Pruden, where it was held. The trial was held over the course of two days, Sept. 14 and Sept. 20. 

Glassman, however, ruled that neither Brooks-Buck nor Gordon should be held liable, as he said it was not a “willful and knowing” violation. He ruled that the board must, in the future, design retreats to allow for public access in the meeting room itself. A future hearing date is to be set for the possible award of attorney fees. 

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He said that even if the court accepted the concerns about COVID-19, the room could have been set up differently to allow for members of the public to be inside the room and at least six feet apart from other participants in the retreat. He said livestreaming the meeting was suitable for an overflow crowd, but not for primary access. 

The judge, while accepting the argument that the school division did not have a more suitable and larger location available for the retreat, said it is not true that “access equals entry” and added that setting up an alternate feed in different parts of the school while not allowing anyone inside was not proper access. 

He also said the room where the meeting was held could have accommodated at least a few members of the public, including Wahlstrom and a reporter from the Suffolk News-Herald who tried to access the meeting later in the day but was denied entry and referred to the school’s lobby where the livestream of the retreat played. 

On the first day of the trial, Glassman did agree with Deborah Collins, who along with School Board attorney Wendell Waller represented the board, Brooks-Buck and Gordon, that there is no requirement in FOIA that a meeting has to be held in a specific spot within a location. 

In testimony, Tarshia Gardner, School Board clerk and an administrative assistant to Gordon, said she had felt threatened by Wahlstrom’s behavior on the morning of the retreat when she refused to leave the meeting room and called 911. Suffolk Police arrived soon after and escorted Wahlstrom from the room and building. 

Brooks-Buck, in her testimony, described Wahlstrom as “angry, belligerent” and said things to her that were inappropriate. 

Director of Facilities and Planning Terry Napier testified that Wahlstrom “may have been” calm when she initially walked in the room and described her as having a purpose, though she later became “agitated and frustrated” when she was asked to leave.

However, Wahlstrom’s attorney, Kevin Martingayle, said in his closing argument that he was sure Wahlstrom was upset, but that she was free to exercise her First Amendment rights, and that it didn’t have to be “kisses and rainbows.” He added that she was neither profane nor vulgar, and did not make threats. 

Wahlstrom, in an email, said other witnesses had described her as calm when entering the room where the retreat was being held and added that she was never searched by police, which in a report, said she was not a threat. 

Glassman also noted the testimony about Wahlstrom and her behavior, but he said that was not relevant to the issue of open meeting access and said it was “shameful” that she was escorted out of the meeting, and the building, by Suffolk Police. 

“The court just considers that to be noise,” Glassman said.

The judge also said that the board wanting to limit those in the meeting room to the participants in the retreat, and not allow the public in due to COVID-19 was a concern everywhere, but also noted that those at the retreat pushed the upper limit of 15 minutes of exposure without a mask in a 24 hour period. 

Wahlstrom’s civil suit is the third involving FOIA and the School Board in just over a year. The board has appealed the first suit, filed by board member Sherri Story, to the Virginia Supreme Court. Another case, also filed by Story, was settled in March. 

Wahlstrom also alleged in her civil suit that Brooks-Buck had told her the retreat was a “closed meeting,” something Brooks-Buck and other school division personnel who testified, either denied or said they did not hear the board chairwoman say that. 

Collins said the focus should be on access to the meeting, not necessarily the meeting room itself. She stated that FOIA had no requirement that the public be allowed in the same meeting space.

She also argued in her closing argument that there was no evidence that Wahlstrom’s rights were violated, and that she could have accessed the meeting via livestream if not for her behavior. She also said the access provided by the school division via the livestream was better than the access in the room because if the public had been allowed in, they would have been viewing the backs of participants, rather than having a better view on video. Glassman said in his ruling, however, that the video feed was limited to the perspective that the division’s director of technology, John Littlefield, deemed to be important, and that the public should be able to choose what to see and hear by being in the meeting room. 

Waller and Collins could not immediately be reached for comment Tuesday.

Martingayle, who previously has represented Story, said there needs to be accountability within the school board and school division, and noted he was struck by Glassman saying that Brooks-Buck and Gordon “got some flawed advice” about access equaling entry. 

“The bottom line of it is, there’s a pattern of behavior,” Martingayle said. “There have been problems numerous times in the past period of time, slightly over a year. And my clients are the only ones who have decided to do anything about it. … This has got to be remedied.”

Story, who testified and attended the hearing, said in a statement that the court has confirmed that the board “cannot keep violating FOIA and blame it on receiving poor advice.”

She said money spent on attorney fees should have gone instead toward student achievement. 

“It is the mandate from the state of Virginia that school boards welcome citizen participation,” Story said. “We must stop alienating them from participating in public education. The atmosphere of fear, threats and intimidation that exists in SPS must change from the top down.”