Sunshine Report for May 2021


Transparency Virginia issues 2021 report

The volunteer group Transparency Virginia issued its annual report on legislative transparency. The report, authored by VCOG's Megan Rhyne and joined by 13 individuals and organizations spanning a variety of interests and causes, can be found on the TVa website.

This year's report takes note of the problems created by an all-virtual legislative session as well as the opportunities virtual public testimony created.

Among TVa's other observations:

  • the high number of bills that are being left in committee without action;
  • the inconsistent application of time limits on public testimony;
  • the difficulty of tracking bills on LIS across the "regular" and the "special" sessions; and
  • the welcome live-streaming of subcommittee meetings.

 

Virtually speaking

VCOG's Megan Rhyne was a guest speaker at another journalism class at JMU and was a co-panelist with lobbyists for the Virginia Press Association at an event for reporters put on by the Society of Professional Journalists. Both session were about FOIA legislation in the 2021 session. She also spoke to the Brandermill Rotary Clubabout the central role access to information has in American democracy. And she teamed up with Alan Gernhardt from the FOIA Council and the state archivist for Maryland on a panel for the Mid-Atlantic  Regional Archives Conference about the intersection of open records and archives.

If you'd like to schedule a presentation on FOIA basics, legislative transparency or a topic like the ones listed above, contact Megan at mrhyne@opengovva.org.
 

Transitioning to in-person

As COVID-19 numbers go down and the governor has lifted some restrictions on gathering limits, several local governments have begun transitioning back to in-person meetings. Elkton, which had already been meeting in person since January, allowed the public to attend starting in early April. Winchester began allowing in a limited number of citizens and continues to live-streaming its meetings. The Charlottesville School Boardbegan meeting in-person but did not allow the public to attend, but the city councilchose to reenact its mandate to meet online only. The Williamsburg-James City County school board eliminated its recorded public comment period when it began allowing the public to attend in-person, noting that the recorded calls become increasingly uncivil. The Staunton City Council'sdecision to eliminate public call-in comment was met with an in-person protest where citizens wore black duct tape over their masks and hand-made signs on their backs saying "silenced."

 

FOIA Council summer studies cometh

The FOIA Council met virtually April 28 to assign three bills referred to it by the General Assembly to one of two subcommittees.

The meetings subcommittee will consider HB 1997, which seeks to increase the number of members of a board who can talk privately without triggering FOIA. The subcommittee will also consider a fix to deal with a ruling by a Southwest Virginia judge who said that when FOIA says to post notice of a meeting on a public body's "official website" it means only a website with a .gov domain name and no others.

The records subcommittee will consider HB 2196, which seeks to open up access to disciplinary records of founded complaints of police misconduct. It will also consider HB 2000, which is an attempt to address the increasingly high cost of obtaining records under FOIA.

VCOG submitted comments and testified on HB 2000, noting its survey of other states' fee provisions. VCOG is also compiling anecdotes and examples of the many different ways fees can be assessed across Virginia's state and local government.

View a recording of the meeting here. 

YOU can get involved in either or both of these subcommittees by signing up for the FOIA Council mailing list.

 

Open Government in the News

Emails obtained through FOIA by the Richmond Times-Dispatchshowed that VCU was aware of problems at the Delta Chi fraternity at VCU, problems that led to a four-year suspension from campus that was itself suspended the next year, long before the February death of a freshman pledge to the fraternity.

Three Boyce Town Council members expressed their mistrust of their two other colleagues for meeting with the town attorney without them.

The former police chief for Portsmouth filed a lawsuit against the city, saying she was wrongly fired for approving the filing of criminal charges against Sen. Louise Lucas and others and was defamed in the process by comments calling her actions racist and in disobedience of her boss.

Meanwhile, a Norfolk judge dismissed the defamation lawsuit the former attorney for Portsmouth filed against the former mayor. Solomon Ashby said John Rowe defamed him by mischaracterizing his legal advice on the firing of the former police chief (see above). The judge said Rowe's words lacked "sting" and did not injure Ashby's reputation. The judge added that there was a third certainty in life, along with death and taxes: "acrimony among public officials in Portsmouth will find its way into the press."

A Giles County parent obtained documents through FOIA that show teachers at her daughter's elementary school referred to her daughter as a "red-headed demon" and commenton her daughter's weight.

The City of Charlottesville announced that it had found the cell phone previously issued to Maurice Jones, the city manager at the time of the Unite the Right Rally on Aug. 12, 2017. The rally's organizer has been seeking texts from that phone in his FOIA and Public Records Act lawsuit against the city. After locating the phone, an attorney for the city said it would have to be examined to see if text messages were still available or whether the whole phone had been "wiped."

Tension flared among Richmond School Board, the mayor's office and members and the community when the board passed a resolution about who would control the building of a new school. The resolution was not uploaded to the district's Board Docs website and was added to the agenda without prior notice late into the board's April 14 meeting. The district superintendent said he felt the way the resolution was handled lacked transparency.

Prince William County supervisors argued over whether or not to allow the board to vote on matters after midnight. Public comment could continue, the measure's backer said, but no votes could be taken unless the board waived the rule during a meeting. The measure soon became another line in the sand that Democratic and Republican members of the board have fought over in the past year and half, prompting an Inside NoVa editorial to lament the partisan divide on county issues: "Many issues, such as land-use decisions and where to build roads, should not be about party politics."

The names of hundreds of Chesterfield County students and school staff who tested positive for COVID-19 were mistakenly disclosed as part of a contract-tracing spreadsheet released t FOIA request. The person who received the spreadsheet destroyed it and let the school know what had happened.

A judge in Winchester agreed to bar the public and press from a pretrial hearing in the first-degree murder trial of Adam Marcus Griffin. Over objections raised by The Winchester Star, the judge agreed with the defense attorney's request, which he said was needed because a witness at the hearing would be discussing the testimony she gave to the grand jury that issued the indictment against Griffin.

Meanwhile, prosecutors in Newport News asked a judge there to close the courtroom for a bond revocation hearing in the case against a former Newport News police officer charged with second-degree murder in the shooting death of a man in his home as officers went to arrest him on misdemeanor charges of abusing the city's 911 system. The judge agreed to the request, saying she wanted to avoid pretrial publicity. The documents underlying the petition to revoke the officer's bond were filed under seal, a move the Daily Press and The Virginian-Pilot are considering a legal challenge to.

Charlottesville talk-radio host Rob Schilling was headed to a settlement with JAUNT, a transportation service. A judge ruled in March that JAUNT was subject to FOIA, based on the amount of money the organization received from local, state and federal government funds. A subsequent hearing on the case was postponed in late April when Schilling's attorney told the judge that a settlement had been reached.

A Blackstone citizen won his FOIA lawsuit against the Nottoway County Board of Supervisors, but the judge said the error was "technical" and not willful. During a work session, the board started to make a motion to go into closed session but then one of the members reminded the others that motions aren't typically made at work sessions. So, the board went into a closed session without the statutorily required motion. (no link)

A pair of industrial hemp growers -- registered with the state and with a city business licenses, and whose plants had been tested by the state and found to be in compliance -- were confronted and handcuffed at their home by Newport News police with a search warrant for marijuana. Officers made no arrests, but a few days after the incident, the couple filed a FOIA request for information about the raid and was told the case was under investigation and the information would not be made available.

The officer-involved shooting death of a Stafford man and the tense police stop of an Army lieutenant again highlighted the state of the law in Virginia regarding release of police officer body-worn camera footage. Virginia law allows the footage to be withheld as a criminal investigative record, though police can choose to release the video and sometimes will. With the passage of HB 2004 this legislative session, there should be more opportunities to obtain video from cases that are no longer active and where no harm would result from release.

The mostly closed-door discussions that have been taking place since at least 2019 in Henry County and the City of Martinsville about the city reverting back to the county continued apace in April 2021. The Martinsville City Public Schools Board met in closed session to talk about reversion, at first citing the need to talk about "potential litigation," but later tweaking the motion to include discussion of the "acquisition of real property for a public purpose." An in-person negotiation among elected representatives and staff from both localities took place April 28. The location was not announced, but reporters from the Martinsville Bulletin got wind of where the meeting would take place. A deputy from the Henry County Sheriff's Office told them they were welcome to take pictures outside, "but you're not going inside this building."

Developments in the saga of the Office of the Inspector General's report on possible irregularities in the Parole Board's process in releasing Vincent Martin from prison slogged on through April.

 

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