On March 15, 2020, Governor Henry McMaster announced the temporary closure of schools across the state as a result of the COVID-19 (Coronavirus) outbreak. McMaster's decision applies to South Carolina's public schools and has consequently triggered an array of concerns by school district personnel, board members, families, and students. Specifically, a concern of unique importance revolves around school board meetings being conducted in accordance with new COVID-19 gathering restrictions while ensuring compliance with FOIA regulations.

The Freedom of Information Act (FOIA)

FOIA is often described as the law that keeps citizens in the know about their government. The purpose of these provisions is to maximize citizen participation in government process and decision-making. FOIA provisions apply to meetings by school boards and also include board committees and subcommittees. Meetings are considered to be any convening of a quorum (majority of members) of a public body to discuss or act upon the business of the public body and applies to both in-person and electronic gatherings. However, it is essential to note that FOIA will apply regardless of if a committee or subcommittee is composed of a quorum of the board or if there are other individuals on the committee or subcommittee.

Common FOIA violations often occur through interpersonal communications regarding business that should be discussed in public meetings. An example of these inappropriate communications would be discussing business matters through casual conversation or electronic messaging. Consequently, FOIA requirements, when coupled with COVID-19 gathering restrictions, have created an environment in which board members must be especially cautious in their approach to meeting and discussing business.

COVID-19 and Board Meetings   

The Center for Disease Control and Prevention (CDC) has expressed that the best way to prevent COVID-19 infection is to avoid being exposed to the virus that causes it. The CDC proposes a surplus of “community-based” interventions, including social distancing and cancelling public gatherings, that may slow the spread of COVID-19. As a result, adjustments to the way that business will be conducted is essential. For example, just last week various city councils still met but encouraged people to remotely watch live streaming of the meeting, allowing these cities to conduct business and comply with FOIA. While this is just one option to ensure safety, there are multiple options that districts may exercise. The following strategies, which comport with FOIA, may be a good fit for your board during this time:

·         Cancelling non-essential board meetings;

·         Allowing non-essential staff members to provide written reports instead of appearing before the board;

·         Live-streaming board meetings or utilizing teleconferencing to encourage members of the public to access meetings from home;

·         Rescheduling student and public participation in board meetings;

·         Rescheduling awards, presentations, and other similar activities that typically occur during board meetings; and/or

·         Temporarily eliminating public comment period.

These strategies are suggestions that have proven beneficial and may work for your district. Throughout this challenging time, we all can support one another and ensure compliance with legal provisions by utilizing the resources that are available and displaying flexibility in the weeks to come. White & Story continues to monitor this and other issues related to the virus pandemic and will continue to operate to serve our clients.