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Sun breaks through at VCOG annual conference
More than 70 people attended the Virginia Coalition for Open Government’s 10th conference, Access 2009, at the historic Stonewall Jackson Hotel in Staunton.
Attorney General-elect, Ken Cuccinelli (right)
, then a candidate, spoke to the group on Oct. 16, and more than a dozen panelists and moderators covered a range of topics: from FOIA basics and judicial selection, to anonymous juries and transparency in the Obama administration.
Cuccinelli promised that if elected, he would post the Attorney General’s budget online. He also spoke of having an “ah-ha” moment when news broke that then-Del. Phil Hamilton, R-Newport News, had negotiated a job at an Old Dominion University training center while seeking funding for it in the General Assembly. Cuccinelli thought Hamilton might have thought longer and harder about what he was doing if the budget process were more open.
In the FOIA basics panel, Lee Wolverton of the Waynesboro News Virginian noted that for journalists, it’s often more important to get as much of a story as possible before having to resort to FOIA, while Chris Graham of the Augusta Free Press lamented how some government employees feel territorial about the records in their possession, and how some feel personally attacked when someone requests those records.
FOI Advisory Council Director Maria Everett said she had the same feeling of reluctance to turn over records the first time her office was sent a FOIA request for the names of people who came to her FOIA “road show” training sessions.
The panel was led by McGregor McCance, managing editor of the Daily Progress.
During the judicial selection panel, Richmond trial attorney Coleman Allen told the audience that he has seen both good and bad judges while practicing in Virginia, which appoints judges, and West Virginia, which elects them. Each judicial-selection method, in his opinion, has its own merits and drawbacks.
Larry Roberts (left)
, currently counselor to Tim Kaine as Democratic National Committee chair and previously counselor to Tim Kaine as governor, said he appreciated the power the governor has to fill certain appointments without legislative approval, but also said it wasn’t the time to put all judicial appointments into the governor’s hands.
Retiring Staunton delegate Chris Saxman agreed, noting there was little to no likelihood of the General Assembly giving up its current power to interview and recommend candidates.
Fairfax County Clerk of Court John Frey discussed how bad judges can sometimes stay on the bench too long. He noted that an adjusted pension-accrual process may be a way to lure older lawyers with more court (and life) experience to the bench.
Tom Moncure, general counsel at George Mason University, moderated the panel.
Perhaps the liveliest panel of the day was the first one, where a defense attorney, Kristie Kane, a prosecutor, Matt Britton, and a judge, Clifford Weckstein (right)
, sparred over the propriety of a Supreme Court advisory committee’s proposal to make juror names anonymous in all criminal cases.
Questioning the public’s true need to know a juror’s name, Britton noted how jurors legitimately fear retaliation for the decisions they render.
Weckstein countered that the existence of a few incidents of threats against jurors was not enough to overcome the public’s fundamental right of access to public trials.
(Note, in November, the rules advisory committee withdrew the proposal discussed at the conference. See related story – 5th item)
Kane added that a defendant cannot be tried by a jury of his peers if he does not know who they are.
Dick Hammerstrom of the Free Lance-Star moderated the panel.
There was near-universal agreement among the three panelists examining transparency in the Obama administration that promises of openness were largely unfilled at that point.
Roger Strother of OMB Watch, Patrice McDermott of OpenTheGovernment.com, and Anne Weismann (left) 
of Citizens for Ethics and Responsibility in Washington, all expressed disappointment in Obama’s continuation of prior administration secrecy policies on detainee-abuse photos, state secrets privilege, and access to White House logs. (Obama issued an Open Government Directive Dec. 8, requiring, among other things, for agencies to decrease their FOIA backlogs by 10 percent each year. See related story, page 5.)
Ed Jones, editor of the Free Lance-Star, moderated the panel.
VCOG’s 2010 conference will be held in the Richmond area.
Light touch for FOIA in 2011
For the most part, there was good news on the open government front during the 2011 General Assembly session. Several pro-transparency bills were passed with ease. Some bills that VCOG felt were not in the public interest were defeated. Much of the credit for those defeats can be attributed to the general public, who contacted subcommittee members and their own legislators to oppose the bills.
The bill of greatest concern to VCOG this year was a repeat of a bill from last year that would let the government get a court order against a citizen who was "harassing" the government with FOIA requests. Last year the bill was sent to the FOIA Council for study, where no consensus could be reached.
The bill came back this year with a different patron, Del. Lynwood Lewis (D-Accomac), but with the same background story accompanying it: a part-time clerk in a small jurisdiction was overwhelmed by FOIA requests from a single person. As became clear during testimony, and like last year, too, it turned out the clerk didn't take advantage of stop-gap measures already written into the state's FOI law.
This year, the House FOIA subcommittee didn't send the bill, HB2383, to the FOIA Council. Instead they tabled the bill on an 8-1 voice vote.
VCOG publicized information about the bill and the hearings on the Coalition's daily email alert, website, Facebook and Twitter feeds, as well as in special legislative alerts. More than two dozen people told VCOG that they had contacted subcommittee members in opposition to the bill. A few people also came to the hearings.
VCOG also heard from several people who contacted the Senate FOIA subcommittee members to express opposition to SB812, a bill to prohibit the release of names in conjunction with salary or reimbursement data. At the subcommittee hearing, the bill's patron, Sen. Steve Martin (R-Chesterfield), amended the bill to say the names of elected and appointed officials could be released, but the subcommittee decided to send the bill in its original form to the FOIA Council for further study.
Also going to the FOIA Council is SB1467 from Sen. John Edwards (D-Roanoke) to create some sort of release mechanism for police investigative files after the investigation is "closed." The concept was studied by the FOIA Council last summer with no consensus.
A measure from Del. Bob Marshall (R-Prince William) will go to the FOIA Council, too. It would require every public record to be classified at its creation as either being required to be disclosed under FOIA or exempt. The bill would further require the status of records to be continually adjusted. Marshall stated in subcommittee testimony that the bill was directed at UVa for its failure to respond to his FOIA request for Michael Mann's climate-change email.
VCOG opposed the bill in subcommittee, and the VCOG Board of Directors approved a statement at its March board meeting that it would oppose any attempts to pre-classify a record as exempt.
FOIA Exemptions
Far fewer FOIA exemptions will be added this year than in past years:
An exemption for certain Medicaid fraud investigation data was added to an existing exemption for Social Services investigations;
An exemption for the records and meetings related to base-closure review committees established by executive order was added to an existing exemption for the Virginia Military Advisory Council;
A new exemption was created for certain pricing data of the Commercial Space Flight Authority; and
A new exemption was created for proprietary records an agricultural landowner submits in relation to a Resource Management Plan (this exemption was added by the governor shortly before the veto session).
A bill to regulate the use of fertilizers includes a provision that allows any personal data collected from various reporting requirements can be withheld under FOIA.
Other FOIA changes
HB1457 started out as a measure that would have let courts terminate or discipline an employee for violating FOIA. It ended up as a measure to double the penalties for FOIA violations. The bill came from Del. Bob Marshall, again arising out of the UVa email case.
(VCOG is hopeful that judges will see this amendment as proof that the legislature expects penalties to be assessed. To VCOG's knowledge, in all the FOIA cases in all the years, only twice has a judge actually imposed a penalty, and at least one of those was overturned on appeal. Contrast that to Washington state, where judges impose fines of $100 a day for failure to comply!)
HB2020 from Del. Joe May (R-Leesburg) will amend FOIA to clarify that records not used in the transaction of public business are not public records. This is a restatement of existing law, but May has been worried that a bad ruling in Loudoun County a few years ago – which was overturned on appeal – would nonetheless subject private records (particularly email) to FOIA.
(In Virginia, records about public business are subject to FOIA, whether they are kept on personal or government computers, or using personal or government email accounts.)
The 3-year journey of how much advance notice is needed before a FOIA case can be filed finally may be over. A bill changing the notice provisions was passed in 2009. An attempt to revise it was brought in 2010, but that failed when the Prince William school board balked at a prior agreement. Finally, after further study by the FOIA Council, Del. Richard Anderson (R-Prince William) and Sen. Toddy Puller (D-Mount Vernon) sponsored identical bills that will hopefully bring peace to the valley.
Another housekeeping FOIA measure brought by the FOIA Council chair, Sen. Edd Houck (D-Spotsylvania), clarifies that the Library of Virginia is the custodian of records sent to it by other agencies and local governments for archiving.
More open government
The voting histories of House of Delegates members will be online, but not those of senators. The bill that would have required both House and Senate to post voting histories online was converted into a House resolution aimed only at the House. The measure was co-sponsored by Del. Jim LeMunyon (R-Chantilly) and Del. Mark Keam (D-Vienna).
Another House resolution that would have required the digital recording of all committee and subcommittee meetings was killed in the House Rules Committee, but the House clerk was directed to investigate the cost and practicality of wiring the committee rooms.
Signature legislation from the governor's Government Reform & Restructuring Commission, patroned by Del. Steve Landes (R-Verona) will create a centralized Inspector General's office, consolidating existing IGs in other agencies and adding new powers.
A citizen-driven measure sponsored by Sen. Creigh Deeds (D-Charlottesville) to open up some records related to inspections of behavioral health service providers licensed by the state made it through the Senate but was killed in a House subcommittee. However, the governor's budget bill offered amendments restoring much of the transparency.
And local governments will be able to publish online more of what could be considered their checkbooks.
And then . . .
Restrictions were placed on when affidavits for search warrants could be made publicly available in a bill brought by Del. Manoli Loupassi (R-Richmond).
A bill offered by Sen. Emmett Hanger (R-Mount Solon) but killed in committee, would have allowed clerks of court to withhold from disclosure the applications of concealed handgun permit holders who have opted-out of mandatory disclosure.
Del. Barbara Comstock (R-McLean) surprised many by introducing a shield law to protect Virginia journalists from having to reveal their sources. The Reporters Committee for Freedom of the Press offered a critique of the proposal, which included concerns with how "journalist" was defined, and after talks with RCFP and the Virginia Press Association, Comstock agreed to pull the bill and work over the summer to craft a new bill.
Comstock also offered a bill to create a Government Transparency Advisory Council and would have established a website to aggregate various government data. The bill reported unanimously from the House General Laws committee but died in the Appropriations Committee.
Del. Chris Peace (R-Mechanicsville) carried a bill that eliminates or consolidates several boards and commissions, but it did not include the Freedom of Information Advisory Council, despite the Government Reform & Restructuring Commission's recommendation to eliminate it.
Reform commission suggests eliminating FOIA Council
Recommendation is inefficient and undermines government transparency and accountability
A subcommittee of Governor McDonnell's Government Reform Commission has proposed eliminating or consolidating several different state boards and commissions. Among those suggested for elimination is the Virginia Freedom of Information Advisory Council.
It's unclear how much enthusiasm there is for cutting the Council or any of the other boards on the list, but in VCOG's estimation, it's not a good idea.
The council's extensive training, its on-the-spot impartial opinions, its alternative to litigation and its framework for studying FOIA issues and proposed legislation provide the Commonwealth with a resource that's critical to open and accountable government and that is open and accessible to citizens, media and government.
In response to the commission's invitation to submit comments, VCOG prepared a position paper opposing the recommendation. In it, we argue that the proposal actually undermines two of the Commission's four overarching mission statements: (1) to search for opportunities for increasing efficiency, and (2) to make government more transparent, user-friendly and accountable.
When still a state senator, Lt. Gov. Bill Bolling carried the legislation creating the Council in 2000. It was created as an alternative to litigation, and to provide education to the public, to media and to government employees.
It is the latter group which has perhaps leaned on the Council the heaviest, as a near-majority of the Council's 1,700 or so inquiries each year come from government. Governmental bodies also rely on the Council's staff to come to their agency or locality to give training sessions.
By providing a forum where disputes can be worked out before they escalate, the Council helps keep FOIA cases out of court. Litigation over FOIA costs government time and money, which is far less efficient than a government employee's quick phone call to the Council for help.
The Reform Commission has said that the Attorney General can offer advice, but that offers little in the way of efficiency or transparency, irrespective of who sits in the AG's chair.
The AG-alternative is inefficient because only certain statutorily defined individuals can request an AG opinion. As one longtime FOIA officer at a state agency told VCOG, "Getting an opinion from the AG's office normally requires vetting through an associate AG. And one wouldn't contact the AG except for matters of significant public policy or major holes (apparent or real) in the law."
How much easier is it for a local or state employee to pick up a phone and ask a question than it would be for him to go to his boss, who has to go to her boss, who has to go up the chain of command to somebody who can ask the attorney general for an opinion?
The Commission's recommendation is not transparent or user-friendly, either, because citizens cannot get official AG opinions. Even if they could, they might be less than confident in the process when the AG's office is later called on to represent a state agency in a citizen's FOIA lawsuit against that agency.
VCOG has not agreed with every opinion of the Council; we have not always agreed with the recommendations on future legislation the Council does or doesn't make. But VCOG — which has had eight of its own past and present board members serve on the Council — is entirely committed to preserving the Council.No one would benefit from eliminating this gem of a government agency.
FOIA in the Courts!
At least 9 court cases, at all court levels, will shape and define the state's FOIA landscape
This has been a busy year for the Freedom of Information Act in Virginia's courts. From challenges to the residency requirement in the 4th U.S. Circuit Court of Appeals, to the standoff in Onancock over an employment contract, citizens, activists and government took to the courts to right what they considered wrongs in the interpretation or application of FOIA.
At the federal level, two plaintiffs have been arguing for at least two years that the part of FOIA that says the law can be used only by citizens of Virginia (and media circulating in or broadcasting to Virginia) is unconstitutional.
The Department of Social Services denied Mark McBurney of Rhode Island certain records related to the child support enforcement action he filed against his ex-wife because he was not a Virginia citizen, though he had been a few years earlier.
Henrico County denied Roger Hurlbert's request for records related to real estate assessments for the same reason: he was a citizen of California, not Virginia.
The case went up to the 4th Circuit on a procedural issue before it was returned to the lower courts for consideration on the merits. The government defendants won at the trial level, and at oral arguments in late October, the plaintiffs' attorney faced stiff questioning from Judge Paul V. Niemeyer. In particular, he expressed doubt that Hurlbert had been prevented from practicing his common calling (his job) under the Privileges and Immunities Clause of the U.S. Constitution.
The Virginia Supreme Court held that the State Corporation Commission is not subject to FOIA. The November decision capped a long-running dispute between the SCC and Chesapeake resident George Christian. The SCC gave Christian some of the records he asked for, but withheld others, noting that both of its responses were guided by internal rules related to the release of records, not by FOIA.
Writing for the unanimous court, Justice Leroy F. Millette Jr. wrote that FOIA did not apply to the SCC because it is a constitutionally established office. The Supreme Court indicated in two earlier decisions that the SCC was not subject to FOIA, but did not decide the issue directly until this case.
In Fairfax, Judge Leslie Alden ruled on several FOIA issues raised by a group of parent-activists against Fairfax County Public Schools. Fronted by plaintiff Jill Hill, the group argued the board members held a de facto meeting when they conducted a quick-fire exchange of email prior to a board meeting. Alden disagreed but said the board did violate FOIA when it allowed one of its members to participate in a closed session by phone. Alden also ruled that some of the school superintendent's emails should have been released. Nonetheless, Alden refused to impose any penalty. The Virginia Supreme Court said in December that it will review the ruling.
In Loudoun County, the local Board of Equalization is claiming that it acted properly when it escorted Beverly Bradford out of a meeting after hearing the click of her camera as she snapped a picture. Bradford sued for not being allowed to record the meeting, while the board argued Bradford did not seek prior permission to record and that her picture-taking disrupted the meeting. The Loudoun Board of Supervisors urged the BOE to settle the case and refused to pay for the BOE to hire outside counsel. Meanwhile, the BOE is seeking a court order that would require the supervisors to pay the BOE's legal bills.
A judge in Smyth County was called to review several records related to a former Saltville Town Council member. When the Saltville Publishing Company requested records of communication sent and received by the former member, both he and a town employee objected to the release, saying the records were personal and not related to the transaction of public business. In an unusual twist, the town sought a court declaration on whether the records could be released. Judge Isaac Freeman reviewed all the records in closed chambers and determined that yes, some of the records were personal and could be withheld, but others did have to do with the transaction of public business. Those had to be released.
In Onancock, on the Eastern Shore, the town manager (who doubles as the town attorney) refused a citizen's request to turn over an unredacted copy of his employment contract. Charles Landis requested the record to show that the town hired the manager, who did not live in Onancock, before changing its policy that used to prohibit hiring a manager who did not live locally.
Prince William County is suing the Department of Homeland Security over the release of records related to the illegal immigrants the county turns over to DHS. The federal FOIA request was prompted when an individual earlier turned over to the department, Carlos Martinelly Montano, was released and later killed a nun while driving drunk.
A federal judge in Norfolk ruled that voter registration applications must be disclosed. The judge said federal law trumps Virginia's restriction on access to the applications, which the advocacy group Project Vote sought after Norfolk State students complained their applications were rejected in 2008. VCOG has filed a friend of the court brief in support of the ruling.
Meanwhile, the FOIA dispute between the University of Virginia and the American Tradition Institute over access to former professor Michael Mann's email and records dragged on when a judge ruled in early November that Mann could intervene in the case.
ATI filed its FOIA request for Mann's records in January 2010. UVA initially responded that it would respond, but then did not. In May, a court ruled that UVA had 90 days to either release the records or to invoke any applicable exemptions. In a protective order, the judge also said at that time that ATI could privately view even the exempt records to determine if it wanted to challenge the exemption's use. Mann filed his motion to intervene toward the end of the 90-day period.
The judge's new ruling allows UVA to renegotiate the protective order and says the parties can pick a neutral third party to review potentially confidential records.
The case has drawn widespread attention, with the FOIA issue often getting obscured by debates about the underlying data — climate change — and academic expression.
UVA has not explained why it did not invoke any available exemptions when ATI's request was first made.