The colorful transition from summer to winter began in earnest in October, complementing crisper temperatures and that special quality of light generated by the sun’s lower angle to the earth.

Some public bodies around the Commonwealth seemed to take advantage of that low angle, thinking maybe they could more easily obscure the light sun shines on government business. VCU refused a request for contracts paid to individual athletes, citing scholastic record exemptions. Franklin released a separation agreement with all but one sentence redacted. A school task force in Roanoke used a loophole in FOIA to meet privately. And the Richmond Sheriff’s Office said she had no emails or texts from a two-day period. Meanwhile, the Youngkin administration said information on paused federal grants were working papers, and Surry insisted it was OK not to give the public materials considered at a meeting until the next day.

On the bright side, Richmond’s mayor and city council may disagree on the details but in concept they both endorse an online FOIA library. And VCOG had its annual reminder that Virginia’s FOIA officers and records managers are the unsung heroes of open government.

Happy fall, y’all!

While not a case specifically about FOIA, the Supreme Court of Virginia’s opinion Brooks-Buck v. Wahlstrom nonetheless springs from a disagreement about FOIA’s meeting provisions. In 2023, Deborah Wahlstrom successfully sued the Suffolk school board, then chaired by Judith Brooks-Buck, for forcing her to watch a school board work session from another room instead of in the same meeting room where the members were meeting. Later that year, Brooks-Buck prepared a disciplinary document for another board member in which she said Wahlstrom committed perjury during the prior litigation. Wahlstrom sued Brooks-Buck and another board member for defamation. A unanimous Supreme Court allowed the case to proceed to the merits, ruling the two school board members were not immune from suit.

The Court of Appeals of Virginia issued an unpublished opinion on Oct. 28 reversing a Charlottesville Circuit Court judge’s decision that would have forced the Department of Corrections to produce certain redacted records about canine-prisoner bite incidents at Red Onion prison. A three-judge panel ruled the records were exempt by §2.2-3706(B)(4), which covers “records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment.” A concurring opinion faulted the judge for reviewing the records to determine whether the records could be redacted, instead saying that once the judge applied the proper standard to the evidence before, he should not have “balance[d] the parties’ equities to achieve what the court believed to be a reasonable or fair solution.”

Two Richmond city council members and the mayor’s office both say they want the city to adopt a “FOIA Library,” but they disagree over what the library would include and how it would function.

City Council member Kenya Gibson, joined by fellow member Sarah Abubaker, proposed a FOIA library that would, at a minimum, post administrative details about FOIA requests (date of receipt, fees charged, records provided and overall responses) online. Gibson’s original proposal would have applied to all city departments, which the mayor’s office pointed out could include 5,500 FOIA requests. The mayor’s office said such a move could compromise individual privacy and expose the city to liability (even though any records posted to the library would have already been released publicly in response to a FOIA request), and would take three people and at least $300,000 to implement.

Gibson then amended her proposal to take out public safety departments, focusing on administrative departments and reducing the estimated number of requests by 73%.

That’s when the mayor’s office came out with its own proposal. On the one hand, the administration boasted that its proposal would cover all departments, so it was more comprehensive than Gibson’s second proposal, though the same as her first. On the other hand, out of concern for privacy and safety, especially for children and so-called “weaponized” requests (requests that are themselves aimed at embarrassing someone, regardless of whether the records are disclosed or withheld), their office would decide which requests ultimately made it into the library.

The administration claimed that its proposal would cost $0 because the FOIA officer would already be tuned into the potential landmines of re-releasing already publicly released records. But somehow, Gibson’s proposal, which does not require discretion (that is, they’re all posted), which would apply to a smaller number of requests, and which would be handled by the same FOIA officer, would nonetheless require one new full-time hire.

VCOG’s Megan Rhyne gave a short presentation at the city council’s Oct. 22 Governmental Operations Standing Committee in support of Gibson’s proposal, pointing out that the public is concerned about the administration (any administration, anywhere) picking and choosing which records and requests get posted online “to avoid embarrassing a government employee or the government itself.”

The matter will be taken up again at the committee’s Nov. 12 meeting.

In our opinion

What I’ve learned over the years of doing training for FOIA officers and others involved in the FOIA process is that most FOIA officers want to (a) do the right thing, and (b) want to get that FOIA request off their desk and move on to the next. If I occasionally forget that, I’m reminded anew each time I participate in the Virginia Association of Government Archives and Records Administrators’ annual conference.

The Surry County attorney said there was no violation of FOIA when the public did not have access to an audit report that was handed to supervisors and voted on in a meeting until the day after the meeting. Though rules say the public is to have access to meeting materials at the same time board members are, the attorney said it was OK because the rules apply to material provided “prior to the meeting,” versus these materials, which were distributed “at the commencement” of the meeting. VCOG’s Megan Rhyne said if we are dissecting whether materials were shared prior to or at the commencement, we are missing the point of sharing information with the public so they know what’s being voted on.

Virginia Commonwealth University refused a public records request from a Richmond Times-Dispatch reporter for the contracts the school has signed to pay individual athletes. The university said an exemption for scholastic records shielded any information that identifies a student (ignoring, of course, that universities identify students all the time in rosters, news releases, award accolades, etc.).

Shortly after the Richmond Times-Dispatch reported that Richmond’s interim inspector general was investigating two nonprofits that received over $1 million to operate homeless shelters, the vice president of one of the nonprofits was charged with wire fraud. The inspector general declined the RTD’s FOIA request for records related to the programs, saying the 1,127 responsive records were investigative notes furnished in confidence.

An attorney produced a report that faulted Southampton County Public Schools for its management of funds and lost opportunities. The report was first released to county officials, then posted on the county’s website for the public. The attorney said the school board did not respond to several FOIA requests for information. Two weeks later, an attorney for the school board said he wanted access to the complete report, as well as all records related to it, including billing records from other law firms.

Disagreements over the powers and responsibilities of the Warrenton Commission on Open and Transparent Government surfaced during October, starting with a disagreement by three of four members with the town attorney over whether the commission should issue subpoenas to access the town’s email system. The town council approved the plan, which prompted the Virginia Association of Chiefs of Police and the Virginia Police Benevolent Association, in support of the local police chief, that said allowing such access to the email system could put the town at legal risk and threaten access to law enforcement databases.

A member of the Warren County Board of Supervisors conducted his own presentation on the Freedom of Information Act, making the case for a narrowed application of, among others, the exemption for attorney-client communications. “I’m also intending to make sure that all of the deliberations about public ordinances, regulations and policies are conducted in public.”

The City of Franklin released the resignation letter submitted by its city manager in early August. The city also released the separation agreement between the city and the manager, though all but one sentence in the 6.5-page letter was redacted. The unredacted sentence laid out the payment terms, but not the dollar amount, something The Tidewater News had to have confirmed separately.

A task force formed in Roanoke to discuss the future of area schools has been meeting privately, exploiting a provision in FOIA that allows two members of a board to meet without giving public notice or taking minutes. The task force has two members of the city council, two from the school board, and several staff members from each entity.

A FOIA request submitted to the Richmond sheriff’s office related to an incident where a concert-goer was pepper sprayed as he tried to join others onstage at the invitation of the performers yielded some records, but other parts of the request were ignored. The sheriff also told WTVR that she had no emails or texts whatsoever from either the day of or the day after the incident, even though a WTVR reporter had back-and-forth email and text exchanges on those days.

The Smithfield Town Council agreed not to pursue repayment of roughly $99,000 in invoices submitted by its former town attorney that were billed at an hourly rate higher than what was authorized by his contract. The action prompted harsh words from the editor of The Smithfield Times (a VCOG board member), who said it set a dangerous precedent encouraging vendors to arbitrarily raise their rates if they don’t think they’re being paid enough.

The Stafford County Board of Supervisors held a candid discussion about the tone and content of public comments. Referring to a resident who regularly shows up in costume to complain about transgender rights, the supervisors talked about balance. Speakers are entitled to their beliefs, one said, but they should be “mindful” that when they speak, they may impact others who are listening.

The former registrar of Albemarle County was charged with forgery and embezzlement. The indictments say she used government purchase cards for personal purchases and forged a public document in the process.

The Prince William County School Board agreed to censure the vice chair over an exchange between and a fellow board member after the board’s Oct. 1 meeting adjourned. The board did not announce the vote in advance and voted to issue “written notice” to the vice chair, but would not say what that notice was about or what it said.

The Youngkin administration refused to release records about which federal grants have been paused by decisions the Trump administration made in January. In May, the finance secretary said that $515 million across 38 grants were at stake, though by September those totals were reduced to $315 million across 18 grants. Despite this public accounting, and despite the fact that federal grants are otherwise public, the records were nonetheless withheld from VPM and WAMU under the so-called working papers and correspondence exemption.

The Hopewell City Council, which has had financial troubles in the recent past and currently has no formal bond rating, spent $17,000 to have a council retreat in Williamsburg. The city manager defended the move, saying it will lead to better governance, but residents said they could have achieved similar results meeting at a local space and using local restaurants.

A report not previously disclosed to the public by the Virginia Economic Development Partnership showed that three data center projects in the state have failed to meet investment benchmarks or create a minimum number of jobs. However, the extent of tax credits offered to the projects is shielded by state law. 

While some calendars and meeting schedules released by the lieutenant governor contain fairly robust entries detailing where she went and for what, others are devoid of detail. Some calendars show weeks and even months during which no meetings, events or governmental engagements are listed.

Using data obtained through FOIA, Cardinal News elicited a correction from the attorney general’s office and the Department of Corrections about how many inmates released early under the enhanced earned sentence credit program went on to be convicted of homicide-related offenses. 

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