The Dog Days of Summer yielded some real mutts when it came to responses to citizen and press FOIA requests, from a dismissal of post office boxes to pricey estimates for copies of contracts. Some new court cases were initated, some marched on and at least one wrapped up (maybe). At VCOG, we set the date for our 2024 annual conference and geared up for FOIA Council subcommittees in September. And a reminder to keep your eye out for VCOG's annual report, landing in mailboxes (including PO boxes!) and email inboxes any day now.

The Virginia Coalition for Open Government joined a "friend of the court" brief in the case Sawyer v. Commonwealth, which challenges the scope of the working papers and correspondence exemption. Heather Sawyer sought records from the governor's office related to the creation of the parent tip-line by the Youngkin administration, specifically the correspondence surrounding its establishment, not the tip-line responses themselves. The governor's office cited the working papers exemption in choosing not to release the records.

The brief, authored by attorneys from the Reporters Committee for Freedom of the Press, and also joined by the National FOI Coalition, the Society of Professional Journalists, and others, advocates for the affirmation of an Arlington Circuit Court ruling that ordered the governor's office to disclose all requested records.

The central issues in the appeal revolve around whether the circuit court should have mandated record production without first conducting an in-chambers review of the records and whether the government should benefit from a good-faith presumption that they conducted an adequate search for the  records and applied the exemption properly.

While recognizing the need to protect internal deliberative processes, the brief warns against a broad application of the exemption, which could allow the government to withhold information merely because it is embarrassing or reveals misconduct, mismanagement, or waste.

VCOG anticipates filing another amicus brief in September on another working papers-related case. This one challenges the Town of Warrenton's assertion that both the town's mayor and the town's manager can withhold records under the working papers exemption at the same time. For decades, the exemption has been applied to one or the other.

When it costs more to get a copy of a current contract than it does to buy a pair of brand new Apple AirPods, something's gone very wrong with this FOIA request.

There's no exemption for the everyday redaction of a person's name or contact information in FOIA, but that doesn't stop public bodies from trying over and over again.

What public officials say FOIA does and doesn't require is less about what FOIA does and doesn't require and more about scoring some perceived tactical advantage.

An assistant general counsel at the AG's office gave an odd response to a FOIA requester that -- if taken to its logical extreme -- could impact requesters with protective orders, gun permit holders, frequently moving military personnel and (hello!) small nonprofits, all of whom use post office boxes instead of physical mailing addresses, who ask for records from the state's top attorney.

Please provide your valid Virginia address and verification of the same before we will process your request. While you provided a PO Box, that is not sufficient to prove that you are a citizen of the Commonwealth.

Questionable grammar aside, the response is exploiting the bit in FOIA that says it's for "citizens of the Commonwealth" and that records custodians can ask for a requester's "legal address." The "citizens-only" limitation was upheld by the U.S. Supreme Court, however that case didn't stand for the proposition that out-of-state requests canNOT be honored at all. On the contrary, most public bodies understand that rejecting an out-of-state request merely kicks the can down the road since a rejected requester will merely find someone within the Commonwealth's borders to file the exact same request on their behalf. And notice that the statute says "legal address." It does not say "valid address," it doesn't require additional "verification of the same," and it doesn't refer to any set definition of "citizenship" that includes or excludes any type of address.

Instead, in direct contrast to FOIA's policy statement to construe FOIA's provisions liberally "to promote an increased awareness by all persons of governmental activities," this response creates unnecessary and unsupported barriers to access and creates a two-tiered system of access by telling post office box holders that they are not "citizen-enough" to use FOIA. 

Two FOIA Council subcommittees are meeting in September. Both meetings will be held in Subcommittee Room #1 in the Pocahontas Building, they are open to the public and they will be live-streamed (the link is in the agenda).

TUESDAY, SEPT. 5 @ 1 PM

Discussion of HB 1880, the bill VCOG asked Del. Elizabeth Bennett Parker to carry that would require local governments to create a record of how much they spent to settle a claim against it. Some clever local government attorneys were settling cases through online portals and then declaring that they didn't have any records to disclose (the Supreme Court has said such records are subject to disclosure, even if the other terms of the settlement are confidential).

WEDNESDAY, SEPT. 6 @ 1PM

This meeting will discuss the implementation of two Virginia Supreme Court cases: Berry v. Fairfax County, which voided a zoning ordinance adopted during an all-virtual meeting in the early days of the pandemic, and Gloss v. Wheeler, which found another COVID-era meeting in violation when some members of the Prince William Board of Supervisors met with police and community leaders about George Floyd-related protests without giving public notice under FOIA.

The Virginia attorney general joined with the former superintendent of Loudoun County Public Schools -- whom the AG's office is prosecuting -- to petition for the public release of the investigative report the school board commissioned in the wake of two sexual assaults by the same student in two different schools. The school division has repeatedly resisted calls to release the report, saying it's protected by attorney-client privilege, but said it would comply with a court order to release the report to the AG's office only.

The Virginia Department of Corrections refused to release inmate complaints about the Marion Correctional Treatment Center. The request was made after an inmate death last year, said to have included off-camera beatings and allegations of hypothermia. The DOC chose to invoke the exemption for records related an inmate's imprisonment, §2.2-3706(B)(4).

Some King George County citizens questioned the exclusion of some comments made by a county resident at a June 6 board of supervisors meeting from the video of the meeting posted to YouTube. The citizen called county real estate taxes "criminal" and appeared ready to accuse the tax assessor of something before his comments were chopped off. The county said it was a technical glitch, but the citizen said, "It definitely has the appearance that something is being hidden.” At the next meeting, the county met for 7.5 hours -- adjourning at 2:30 a.m. -- to hear comments on a data center proposal. 

A candidate for commissioner of the revenue filed a petition in Augusta County to challenge the current commissioner's refusal to release details about personal property tax assessments. The commissioner referred to a part of the Tax Code that prohibits the disclosure of personal tax information. Violation of the section is a Class 1 misdemeanor.

Former congressman, former Virginia Senate member and current candidate for the House of Delegates, Tom Garrett, said he wanted to make sure his medical records would be kept confidential during his divorce proceeding. Garrett shared his fear that his wife is leaking documents to the local news media and pointed to the fact that a reporter for The Daily Progress was present in the courtroom and had written stories about the case. The reporter, however, noted that information about the case is publicly available in the Louisa County Circuit Clerk's office.

When the Richmond Times-Dispatch asked a handful of police departments across the state for their policies governing when and how they engage in vehicular pursuits, they got a range of responses. While some localities (Charlottesville, Roanoke, Prince George County, Henrico County) and the Virginia State Police turned over the policies without issue, other areas (Richmond, Chesterfield County) released redacted copies of theirs, while Fredericksburg and Lynchburg declined to release a policy at all. Both of the latter localities claimed release would endanger law enforcement and/or the general public.

A Newport News Circuit Court ruled in favor of The Virginian-Pilot and the Daily Press in their attempt to have records from a hearing to revoke the bond of a former Newport News police officer on trial for murder. The papers last year secured a Virginia Supreme Court ruling confirming that they should not have been barred from attending the proceeding, but even after that ruling, the city said it would not release related records because it would hinder further investigations and subject officers who cooperated in internal investigations to unwarranted scrutiny.

After it came to light that several members of the Newport News City Council were spending perhaps too much money on travel, the mayor suggested creating a handbook to codify roles and responsibilities and switching from credit cards to P-cards, which require payment in full each month. The Virginian-Pilot and the Daily Press conducted a regional review of the various policies governing use of cards for meals and travel.

Credit card statements obtained by the Richmond Times-Dispatch through FOIA showed the city's mayor staying at a five-star hotel in Washington, D.C., during the U.S. Conference of Mayors, for a total of $2,148, though most attendees stayed at the four-star hotel where the conference was held.

A member of the Stafford County Board of Supervisors walked out of a meeting -- thus destroying the quorum needed to conduct business -- in an attempt to force board discussion about the potential for a methadone clinic to be opened in an existing shopping center.

The parent of a transgender student in a Roanoke County school was arrested at a school board meeting after he criticized sheriff's deputies in attendance for shushing the audience. Other deputies rounded up board members and escorted them out of the room for several minutes before allowing them to return to resume the public comment period.

The latest in the years-long battle between an attorney and the Town of South Hill over the release of records the town says are exempt personnel records came in mid-August when a circuit court judge rejected the town's motion to reconsider his ruling to release some of the records. In his order, the judge pointed out that “no reasonable person” could find that an it was an invasion of personal privacy to release an employee evaluation when that employee chose to distribute it. It is unknown whether the town will appeal the ruling.

The Augusta County Board of Supervisors received copies of the recordings one of its members made of various closed meetings, but only after grand pronouncements from both sides about their rights and duties under FOIA. Once the county had the recordings in-hand, it then refused to disclose them to requesters, prompting the Augusta Free Press to file a petition challenging that decision in Augusta General District Court. The petition is scheduled to be heard on Sept. 5.

P.O. Box 2576
Williamsburg VA  23187
540-353-8264
vcog@opengovva.org