Greetings Board Members:
As many of you may know; I submitted the following FOIA request on January 21, 2014.
1) Please provide all emails pertaining to GloucesterCounty, Gloucester County Public Schools and or PageMiddle School between Ben Kiser and RRMM Architects, their Principles, Officers representatives or employees for the period of April 11, 2011 thru May 31, 2011. Please include messages stored in Mr. Kiser’skiserben@gmail.com account, hkiser1@cox.net account and any other private email accounts that Mr. Kiser may use.
2) On June 28, 2011 at 4:43PM an email conversation from bkiser@gc.k12.va.us was sent tokiserben@gmail.com. Subject of the email is Page Committee. Please provide said email as received in thekiserben@gmail.com email account along with all sent, forwarded, carbon copied and received versions of said email.
3) On July 17, 2011 at 9:49AM an email was sent fromdgamache@gc.k12.va.us to kiserben@gmail.com. The subject of the email is Fw: committees & proposals. Please provide said email as received in thekiserben@gmail.com email account along with all sent, forwarded, carbon copied and received versions of said email.
On January 28, 2014 I received the following response.
I will be sending you a total of nine (9) emails in response to your FOIA request (as it appears below).
Specifically, I will send four (4) emails in response to Item # 1; one (1) email in response to Item #2; one (1) email in response to Item # 3; and three (3) emails in response to Item # 4; however, please be advised that I am unable to provide messages stored in kiserben@gmail.com or hkiser1@cox.net.
Diane Clements Gamache
Executive Associate to the Superintendent/
Clerk of the School Board
Gloucester County Public Schools
This response was followed by nine more emails. The last of which arrived almost two hours later even though I did not ask for further clarification.
As a follow-up to my earlier email sent to you today regarding response to your 1-24-2014 FOIA request, here is additional clarification:
Please be advised that Dr. Kiser moved in the Spring of 2013, and subsequently closed his Cox email (hkiser1@cox.net) account. He has reviewed that account and emails as requested were not available.
He also reviewed his gmail account (kiserben@gmail.com) and emails as requested were not available as well.
Thank you,
Diane Clements Gamache
Executive Associate to the Superintendent/
Clerk of the School Board
Gloucester County Public Schools
The response email attachments are all of emails stored within the school systems account. Three of the emails are of a single email conversation with a power point presentation and are dated outside of the dates for which information was requested. The bill for compiling this information was $80.00 which equates to four hours of processing time. The specifics contained in my request narrowed the search parameters within limits that make this fee seem ridiculously elevated. The same request was also sent to Christi Lewis, Gloucester Community Education Director, as item number one requested information from the County and the School System. Ms. Lewis responded within two days, provided four attachments to the single response email and made no mention of a fee for search time. I received a total of 11 emails from Ms. Gamache. (All 13 email attachments received are attached to this email) Nine emails contained one attachment each plus the two emails shown above. Why is there such a difference?
The email conversations I requested were all created prior to July 18, 2011 therefore they should have been retained until the end of year 2014. On the other hand, it could be claimed the emails in question were courtesy or reference copies that Mr. Kiser sent to himself. As you can see no such claim was made in either response. Such a claim could be acceptable if there was only one private email account involved. The fact that users of the school system’s email system are afforded continuous access just like private email accounts would make the courtesy or reference copies scenario hard to accept. The inability to produce the requested emails further illuminates the apparent decisive efforts to control and limit involvement in the post tornado Page Middle School process. This is one more element to add to the many other questionable occurrences during that process.
At this point, Gloucester County Public Schools does not appear to have control over security, accountability or use of information contained within or accessible by its email system. The fact that the Schools Superintendent facilitates this lack of control through his own violations of record keeping laws and regulations is clearly confirmed by the responses to my FOIA request. Considering the apparent lack of control in this area; one cannot help but wonder how much confidential or proprietary information has been sent to private email accounts where the school system’s ability to control security, accountability and access is remarkably degraded or non-existent.
Taking time to review records management policies and practices and implementing necessary improvements will result in enhanced functionality, search ability, organization and less labor hours. Establishment and implementation of responsible, ethical and transparency driven policies and guidelines that either incorporate or prohibit private email account use will enhance records management, security and accountability of government information. It will also show the citizens of Gloucesterthat things are being done correctly.
I encourage each of you to review the supporting information below.
Respectfully:
For clarification purposes I have included the following information which is provided on the Library ofVirginia’s website at: http://www.lva.lib.va.us/
Under Code of Virginia § 42.1-85, the Library of Virginia (LVA) has the authority to issue regulations governing the retention and disposition of state and local public records. In keeping with the Code's mandate, LVA has developed Records Retention & Disposition Schedules outlining the disposition of public records.
Under this policy, the LVA issues two types of schedules. General Schedules apply to the records of common functions performed by or for all localities and state agencies. Specific Schedules apply to records that are unique to an individual state agency.
General Schedule # GS-19 covers administrative County and Municipal Government records. Series 010037 applies to Department or Division Heads. This series of records consists of incoming and outgoing letters, memoranda, faxes, notes, and their attachments, in any format including, but not limited to, paper and e-mail. These records must be retained for 3 years after the end of the calendar year.
The Library of Virginia provides the following guidance:
E-mail messages—both sent and received—that provide evidence of a government transaction are considered public records and are subject to the same legal requirements regarding access as other government records. Some examples of e-mail that are considered public records are policies and directives; correspondence or memos pertaining to the organization’s business; work schedules and assignments; documents circulated for approval or comment; and any message that initiates, authorizes, or completes a business transaction, final report, or recommendation. Some examples of e-mail that are not considered public records are personal messages or announcements, courtesy or reference copies, phone message reminders, routine chat on e-mail listservs, and announcements of social events.
E-mail is not a records series. It is a format or manner of delivering content. The content of an e-mail determines the retention requirements. Since e-mail is usually considered correspondence, refer to General Schedule 101 for administrative records of state agencies and General Schedule 19 for localities.
Not all e-mail is plain correspondence. For instance, work orders must be retained for three years, regardless if they are sent through e-mail, form, or memo. If you have determined that an e-mail is something other than correspondence, review the appropriate retention schedule to determine the applicable retention period. Just as with all other public records, e-mail must be maintained and accessible throughout the life span of the record.
Many factors contribute to the determination that documentary materials are public records. If the answer to any of the following questions is “yes,” the document is a public record.
-Did the agency require creation or submission and maintenance of the document?
-Was the document used to conduct or facilitate agency business?
-If the document is a draft or preliminary document created for back- ground or a similar purpose, does it contain unique information that explains formulation of significant program policies and decisions?
-Was the document distributed to other offices or agencies for formal approval or clearance?
-Is the document part of an electronic information system used to conduct government business?
Megan Rhyne, Executive Director, Virginia Coalition for Open Government, provided the following thoughts on the last FOIA response email I received.
“FOIA is a snapshot of the records that exist at the time of the request. If the records do not exist at that time, then FOIA cannot compel the creation (or recreation) of them.
From a records management standpoint, it is irresponsible to let public officials unilaterally delete records about public business from their personal email accounts. Unfortunately, there is no enforcement for failure to follow guidelines under the Public Records Act.
From a FOIA perspective, though, it is not a violation to delete records/accounts, so long as the records were not deleted (or accounts closed) AFTER the request was made.
Further, though you are definitely not the first one to express well-founded skepticism over an individual's self-review of his/her private emails, that's also not prohibited by FOIA. All records request have an element of self-selection in their review procedures. It's a leap of faith in every FOIA request, though the implications are far more stark when it comes to the review of one's own email/correspondence.
I would encourage the school division to develop better records management policies for non-government account use for public business.
Hope this helps,
Megan
A few examples of limiting involvement and questionable occurrences during the post tornado Page process. (Emails referenced herein were obtained from multiple FOIA requests)
An email conversation dated June 15, 2011 from School Board member Ann Burruss to Mr. Kiser, the School Board and others starts out with Ms. Burruss providing an update on the WHRO Committee meeting she attended. Ms. Burruss then writes:
“After speaking to Anita today, I feel that I was in error in not “announcing” that I had spoken to Dr. Kiser about serving on this Ad Hoc committee for Page at the same time it was determined that there would be one, which I believe was at the meeting giving the update on Page. I am reasonably sure that something can get worked out before any final committee membership is determined by Dr. Kiser, as we did foist upon him the task of deciding the make-up of this body.”
School Board member Starr Belvin then writes:
“Does this mean that the board will now have 3 representatives on the committee (you, Anita and Jean)?”
Mr. Kiser then writes:
“Only two board members can serve on this committee. Ms. Parker and Dr. Pugh were the only ones to express their interest last night. If the meetings are open to the public, then anyone can be in the audience. If the Board wishes to give me further guidance on this matter then time can be set aside next week. Thank you.”
In an August 4, 2011 email from Mr. Kiser to the members of the Ad Hoc Committee; Mr. Kiser thanks the members for their two days hard work discussing ideas on what to do about Page Middle School. Mr. Kiser goes on to say:
“Please consider this information confidential until it is presented to the School Board. We will be saying to the School Board that the cost projections are still quite tentative. I realize the danger in putting numbers out too soon, but Duane has done a good job in projecting costs based on general information, realizing that more refined projections will be made as we decide on the final solution.
I will also forward to the School Board and the Board of Supervisors the proposals as soon as we refine this document. It will be good for the two Boards to receive this information prior to the public during the open meeting on the 9th. Thanks again for your assistance.”
On August 9, 2011 at 10:44AM Mr. Kiser sent an email to the School Board members, school staff, the Board of Supervisors, the County Administrator and one of his personal email addresses. In this email he presents the Page Ad Hoc Committee’s recommendations, complete with a Power Point presentation. The School Board meeting was on this date at 7:00PM. On August 4, 2011the agenda packet for the August 9, 2011 monthly School Board meeting was posted on the Schools’ website without the supporting documentation from the Committee. The Ad Hoc Committee’s recommendations and supporting Power Point presentation were not available for the public to review until arriving at the August 9th meeting.
An email conversation between Mr. Kiser and Ad Hoc Committee member Mike Hagar, begins on June 30, 2011 with Mr. Hagar saying,
“Dr. Kiser, I received your voicemail request for volunteers to serve on a planning board that will address how best to recover from the destruction of Page Middle School.”
An email conversation between Mr. Kiser and Committee member Jay Napier begins with Mr. Napier’s request to be on the Committee and reminding Mr. Kiser of them previously playing golf at a Virginia Association of School Superintendents conference and of Mr. Kiser inviting him to the Abingdon Ruritan Club.
In an email conversation between Committee member Jennifer Latour and Mr. Kiser, Ms. Latour informs Mr. Kiser that she would be unable to attend the second of three meetings. Mr. Kiser responds:
“The second day will probably be a critical day in the committee’s deliberations but Mr. Daniel speaks highly of your involvement. I am unsure at this point whether the third day will be needed but maybe we could communicate prior to the 27th in order to get you up to speed. I have a committee of 17 people and something may prevent any of them from attending on a given day. With that said, I look forward to your participation on the 18th and let’s see what will be needed from that point. Take care.”
Property records reflect that one day prior to the Gloucester School Board publicly voting to rebuild Page Middle School on property it received from the Pella P. Hundley Trust, Harry Corr purchased all 26.79 acres of Route 17 road frontage property that is connected to the Gloucester County property where the new school is being built.
An email conversation dated May 13, 2011 betweenGloucester’s Chief Purchasing Manager, Bill Lindsey and Ben Kiser pertaining to post tornado Page Middle Schoolcontains the following as written by Mr. Lindsey to Mr. Kiser:
“If I understand your needs, it appears that the resulting contract that you desire will encompass not only the development of a conceptual design and professional consulting services for your Board, but also a second phase that will include the development of plans and construction documents.
All of these services may be included in a proposal which I can develop for your review. For this development, I would need your staff to provide me with a Scope of Work and any other pertinent requirements that are envisioned for such an engagement. I must caution you that staff would need to be careful in establishing a business relationship with any engineering firm for the development of the work scope. I offer this caution because such a linkage could disqualify the firm from offering a proposal for the future services to rebuild the school. This prohibition is contained in §22-74 of the Code of Gloucester County.
Rather, I would encourage your staff to communicate with peers across the Commonwealth in the development of the work scope and requirements. Needless to say, I am available to work with your staff on this objective.”
In an email conversation between Mr. Kiser and Duane Harver with RRMM Architects dated June 29, 2011; Mr. Harver expresses concerns to Mr. Kiser about being able to participate in the bidding process to design the newPage Middle School if they commit to facilitating the Page Middle School Ad Hoc Committee. Mr. Harver referenced a previous instance in which RRMM’s participation was excluded in Chesapeake because of their involvement in a study pertaining to the services contained in the Request for Proposals. Mr. Kiser responded that RRMM’s work with the Committee would not preclude them from bidding and that he and Bill Lindsey, CPPO, CPM for the Gloucester Purchasing Office, had already spoken about it.
Sec. 22-74. Participation in bid preparation; limitation on submitting bid for same procurement.
No person who, for compensation, prepares an invitation to bid or request for proposal for or on behalf of the county shall (i) submit a bid or proposal for that procurement or any portion thereof or (ii) disclose to any bidder or offeror information concerning the procurement which is not available to the public. However, the purchasing manager may permit such person to submit a bid or proposal for that procurement or any portion thereof if he/she determines that the exclusion of such a person would limit the number of potential qualified bidder or offerors in a manner contrary to the best interests of the county.
It says no person shall (ii) disclose to any bidder or offeror information concerning the procurement which is not available to the public.
From Mr. Kiser’s afore mentioned email dated August 4, 2011
“Please consider this information confidential until it is presented to the School Board” “It will be good for the two Boards to receive this information prior to the public during the open meeting on the 9th.”
On June 15, 2011 a Request for Professional Services to “review the potential for reconstructing Page Middle School” was advertised. Proposals for the June 15thRFP were received by July 11, 2011. On August 9, 2011Duane Harver with RRMM presented the Ad Hoc committee’s recommendations to the School Board. Until August 9, 2011 RRMM possessed concerning information that was not available to the public, the School Board or to bidders competing for the June 15thRFP contract.
Our Notes: We will be posting PDF files in the very near future showing all of these communications in full detail. What has been hidden from public view is slowly coming to light.
