It’s beginning to look a lot like…Brrrrr! I hope you and yours enjoyed a restful and fulfilling Thanksgiving weekend, but here we are in December with nippy temperatures reminding us that winter is just around the corner.

To help you stay warm, we’ve compiled yet another list of hot topics and hot takes, the highs, but mostly lows, of access to government records and meetings in Virginia. 

King William County’s library board, the Purcellville Town Council and the Norfolk Redevelopment and Housing Authority took action on items not on their pre-meeting agendas, highlighting the need for a legislative fix in 2026. Meanwhile, Warrenton council emails planning and scripting of the town manager’s firing were described as nothing unusual, and Richmond’s public comment rules have drawn constitutional scrutiny. Virginia data center tax incentives remain largely undisclosed, and while UVA faculty members are skeptical about FOIA requests for course materials, the university’s FOIA responses to three different requesters has been revealing. And, court orders in Norfolk and Roanoke are taking aim at what gets too-easily labeled as proprietary information.

As for VCOG, well, we got approved this month by the Virginia State Bar and the Virginia Freedom of Information Advisory Council to provide MCLE and FOIA officer certification training, respectively. Schedule your training session today!

A federal judge in Norfolk unsealed a document compiled by Flock Safety that listed the location of its surveillance cameras in Norfolk, Newport News, Portsmouth, Suffolk, Chesapeake, Hampton, Virginia Beach, Isle of Wight County and Franklin. The list had been subpoenaed by plaintiffs challenging use of the cameras and Flock asked that the list be sealed as “confidential, proprietary” and unnecessary at that stage of the litigation. The judge disagreed, ruling “The public has a legitimate interest in knowing where Flock’s cameras are located when those cameras are operated by public entity customers other than the Norfolk Police Department, such as other municipal police departments.”

A Roanoke Circuit Court judge echoed that sentiment when she ruled the Southwest Water Authority had to turn over details it redacted about the planned water consumption by a proposed Google data center, despite Google’s claims that such details were “proprietary.” The data isn’t owned by Google, the judge said, adding, “The public has an overwhelming interest in the management of this critical resource and that interest is certainly more important in the beginning stages of a project than after the project has been finalized.” The water authority said it will likely appeal because Google “strongly believes the redacted information is proprietary.”

It’s not unusual for a legislative proposal to come forward because of something that happened somewhere that never should have happened. The thought is that the law should be adjusted to make it so that situation can’t occur again. Some legislators object to lawmaking-by-anecdote while others think that it’s important to step in before a single incident becomes a trend.

No matter which side you come down on, it’s not what’s happening with VCOG’s “agenda bill.” We’re not talking about something that happened once last year, or even twice the year before that. We see the problem on a regular basis, in public bodies large and small, and geographically diverse.

The problem is when a public meeting convenes and someone adds an item to the agenda that the public was not previously alerted to, and then the public body acts on that item. Members of the public who chose not to attend the meeting based on what was listed on the pre-meeting agenda may be impacted by these surprise actions, and (depending on when and how public comment is taken) may have been denied the opportunity to speak out on the issue.

Over time, we have documented several instances of these last-minute actions — actions that are not being made because of some emergency or some deadline that has to be met — in the pages of this newsletter, and this month is no different.

At its Oct. 21 meeting, King William County’s library system board adopted a new policy restricting minors from accessing “sexually explicit” materials in the county’s libraries. The policy comes just four months after the county took over county libraries from the regional library system, in part over disagreements about such access, so there would clearly be public interest in the topic. Yet, it was not listed on the agenda. Furthermore, the policy was not made publicly available until November, when it was pried loose through FOIA request.

The Purcellville Town Council, which has been in turmoil for quite some time, in part, because of a revolving door of town managers (10 in nine years), surprised those attending the Nov. 12 meeting when the council acted on a previously undisclosed item to hire a new town manager. No information was provided about the new hire other than that a couple of council members said they’d met him and he’d been recommended by “federal agents.” Some seemed unaware that the candidate was also running for Congress.

And the Commissioners of the Norfolk Redevelopment and Housing Authority went into a closed session for an unspecified personnel issue, came out and unexpectedly fired its executive director. 

The Norfolk case is doubly relevant to VCOG’s agenda bill because some localities have insisted that they should still be able to act on items coming out of a properly called closed meeting. But the public is being blindsided even if the meeting was properly closed, especially when the motion to go into closed session is as vague as an “unspecified personnel” issue. The Patrick County Board of Supervisors got that part right. The pre-meeting agenda and the motion to go into closed session mentioned the evaluation of the county administrator, thus it was no surprise when the supervisors took action to terminate the administrator when it emerged from the closed session.

Sen. Adam Ebbin is carrying VCOG’s agenda bill, and we hope you will let your senator or delegate know that you support limiting these opportunities for surprise action.

In our opinion

The Nov. 19 edition of our daily morning newsletter was fuller than most, including several of the items mentioned above, and I thought some of them needed a bit more context and explanation. Read my “Notes on today’s newsletter news” on our Substack. And if you aren’t signed up for our newsletter, you can do that here.

Emails obtained by the Fauquier Times revealed the behind-the-scenes thinking of at least one member of the Warrenton Town Council who voted to terminate the town manager. Council member Eric Gagnon felt the manager was “stonewalling” the email discovery process for the Commission on Open and Transparent Government. Another trove of email showed Gagnon and others discussing how to manage the termination, including the “script” they would follow, a practice that Gagnon defended as not being unusual, and how they could limit public discussion. The council members who opposed the manager’s firing called a special meeting to discuss citizen ethics complaints over the email exchanges, prompting Gagnon to accuse them of violating FOIA by holding a “de facto” vote to call a meeting.

The Immigration and Customs Enforcement agency has not responded to federal FOIA requests submitted by the Henrico Citizen that ask for records documenting deportation flights out of Richmond International Airport.

A senior program counsel for the Foundation for Individual Rights and Exercise (FIRE) sent a six-page letter to all members of the Richmond City Council criticizing the council’s public comment policy as being unconstitutional. The policy prohibits language that “insults or demeans any person or which, when directed a public official, is not related to that official’s official duties,” which the city council president as interprets as allowing her to silence speakers from even referencing individual public officials by name.

Lawyers for Richmond told the judge in the whistleblower lawsuit filed against the city by its former FOIA officer that the phone belonging to the FOIA officer’s former boss was not backed up before it was lost, which prompted the officer’s attorneys to file a motion for spoliation of evidence. The judge sealed the motion, which included a report about the lack of a backup. The city’s lawyers told a reporter that he did not ask for the records to be sealed, but emails read out in court by the judge contradicted the city lawyer’s public statements. The city’s lawyer insisted he spoke truthfully because he had asked the judge’s clerk, not the judge, to seal the records. The judge pointed out, however, that the clerk had no authority to seal the record.

A Warren County supervisor is proposing procedures to guide future closed meetings, specifically when they relate to legal matters. The proposal would require the county attorney to provide written justification to all board members at least 48 hours before the meeting, and it would require any written analysis on proposed ordinances, regulations or significant policy to be published publicly, with some exceptions.

The Town of Louisa says that a spate of resignations left the town short staffed. Meeting minutes were not posted for six months, and video recordings were not posted at all. Local residents and town council members said the town needs to be more transparent.

Sen. Creigh Deeds paid $4,500 to UVA to get a tranche of email records related to the summer resignation of university president, Jim Ryan. The senator shared the records with the UVA student newspaper, The Cavalier Daily, whose FOIA requests since July 1 have gone unfulfilled. VPM News, which made its own FOIA requests, got a quote from UVA that it would cost more than $34,000 to process the 77,000 records returned in the search. That works out to 194 business days to complete the request.

Invoices obtained by The Smithfield Times show that Surry County paid its finance consultant more than $100,000 without the benefit of a contract setting out any payment terms. When asked about the legality of the arrangement, the county attorney responded that the question was “beyond the scope of FOIA and as you are not my client, I am unable to advise you as to legal requirements for county contracts.”

Meeting minutes from a school division meeting in Atlanta confirmed that a senior administrator for Alexandria schools was in attendance at the same time as her school division working hours. The school board filed a lawsuit against the administrator after reporting by Alexandria Times revealed the dual employment.

Some faculty members at UVA are questioning the intent of email requests for their email and course syllabi. While acknowledging FOIA does apply, they contend the law is being “weaponized” to monitor curriculum. FOIA requests at UVA have greatly increased in the past few years, from 404 in 2021 to 786 in 2024 (during which time a student killed three football players back from a school-related trip, university police cleared a pro-Palestinian encampment and the board of visitors underwent a significant transformation. The university engaged in litigation 10 years ago over access to the emails of climate scientist Michael Mann when he taught at UVA.

The Town of Smithfield had to push back a decision on whether to rezone a site on Main Street because changes made to the proposed recommendations were not included in the advance public notice that must be published in local newspapers several days in advance of a public hearing.

A report from the watchdog group Good Jobs First stated that Virginia offers some of the largest tax breaks in the country for data center developers but does not publicly disclose which companies receive them or how much they are worth.

We’re also on Bluesky: @opengovva.bsky.social

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Williamsburg VA  23187
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vcog@opengovva.org