Sunshine Report for June 2021

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VCOG at the FOIA Council

Two FOIA Council study subcommittees launched in May. VCOG is participating in them both.

Records subcommittee

The records subcommittee is considering two proposals: one on FOIA fees and one on police disciplinary files.

• FOIA fees: On May 18, the subcommittee heard from local government attorneys and law enforcement representatives in opposition to HB 2000, which seeks to limit the rising cost to citizens of seeking records under FOIA. The opponents stressed the valuable employee time and money they would lose under the proposal, and several complained about requesters who use FOIA to disrupt government operations and those who use FOIA “just to FOIA.”

  I testified in support of the measure’s concept and urged the formation of a workgroup of interested parties to explore additional or alternative options to those specified in the bill. To assist the discussion and inform the general public about the challenges requesters and government face, as well as what other states do, VCOG created a pop-up website that it will update as the study moves on.

• Police Disciplinary records: Those who opposed the FOIA fees bill also opposed HB 2196, which tries to compel disclosure of completed police disciplinary proceedings, saying that police might sweep misconduct under the rug to avoid public disclosure. I testified briefly in support of the bill. The subcommittee did not discuss the bill or the public comments because the bill’s patron, Del. Mike Mullin, was unable to attend the meeting.

Watch the video of the meeting here. My comments come at the 16:45 and 1:28:30 marks.

Meetings subcommittee

The subcommittee on meetings voted 4-1 against recommending HB 1997 to the full council. The bill, as written, would have changed the definition of "meeting" in FOIA to allow three members of a public body to talk public business without regard to FOIA, up from the current two. A motion made by the subcommittee chair to offer an alternative where the FOIA-triggering threshold would be based on a percentage of the membership (35% or 3 members, whichever was greater) was rejected on a 2-3 vote.

I gave public comment against the measure, noting how the current definition, which is around 40 years old, is predictable and easy to apply. I also noted that citizens are already frustrated when they realize at a public meeting that the members of a public body have already discussed matters in legal two-by-two meetings away from the public. The Virginia Press Association and the Virginia Association of Broadcasters spoke against the proposals, too.

Watch the video of the meeting here. My comments begin at the 30:45 mark.

The subcommittee will also look for ways to clarify that when FOIA says notice of meetings must be posted on an “official government website” that it means more than websites with .gov extensions, as a general district court judge in Wise County ruled last year.

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

An HB 2004 webinar

VCOG will be hosting a webinar for journalists on HB 2004, which goes into effect July 1. The bill seeks to provide some measure of access to inactive criminal investigative files. It is a complicated bill that includes longer response times and some provisions that mandate release of records and some provisions that prohibit disclosure. Reporters will need to know how to use the law — what it does and doesn’t require — and VCOG will want to know how police and prosecutors are applying the law so we can assess what future tweaks may be needed.

Summer Legal Fellow

VCOG is pleased to welcome Nikkita Rivera, a rising second-year law student at the University of Richmond, as this summer's Laurence E. Richardson Legal Fellow. Nikkita will be researching exclusions from FOIA in the Code of Virginia for things like information submitted in support of getting licenses or grants under a number of new and different commissions, programs and initiatives.

You'll also find VCOG....

…in the Virginia Capitol Connections quarterly magazine, which focuses on transparency during this year’s General Assembly session. An article I wrote about my work with Transparency Virginia is the feature story. (Note: The General Assembly is expected to hold a special session in August to deal with the appointment of judges, and the Speaker of the House has indicated the session will be in-person.)

…on This Week in Virginia with five other political and government observers talking about where we get our state-government news.

A Substack experiment

Some of you may be receiving two copies of this month's newsletter. VCOG is experimenting with delivery of its various news and newsletters on the Substack platform.

If you received a Substack version, or if you just want to see it for yourself, drop us a comment to tell us what you think.

Open Government in the News

• According to records obtained by the Richmond Times-Dispatch through FOIA, Judge Adrianne Bennett, the embattled former chair of the Virginia Parole Board, was on "extended leave" in April and court clerks were instructed not to contact her with questions. The records also show Bennett was removed from a group email that went to just judges.

• A Charles City County resident says she was charged nearly $100 for an employee to sit in a room with her while she inspected county records. The county administrator said the supervision was necessary "to make sure [the records] weren't compromised."
  NOTE: An opinion from the attorney general's office in 1989 says charging for an employee's time to oversee a requester's inspection of records "is not authorized by the Act and is unreasonable."

• A Newport News judge denied a request by the Daily Press and The Virginian-Pilot to keep a courtroom open for a pretrial hearing to revoke the bond of a police officer charged in the 2019 death of a man inside his home when officers went there to investigate the man's alleged abuse of the 911 call system. During the closed hearing, the judge considered documents filed under seal and said acting publicly could make it difficult to seat an impartial jury. After the hearing, the officer disclosed the court's order denying the revocation.

• After surprising residents by announcing public comment would no longer be taken by telephone when its meetings moved back to in-person, the City of Staunton began considering alternatives. A council member proposed a trade-off that would allow such comment but that would also limit how many people the council would hear from that way. Mayor Andrea Oakes expressed concern about rushing a decision so the matter is still pending. Meanwhile, an email exchange accessed through FOIA showed inner-council bickering over everything from rules to the mayor's request to fellow members that she be called "Mayor Oakes" and another member, Brenda Mead, making fun of the mayor's misuse of the word “reframe.”

• Attorneys for a Spotsylvania County man shot 10 times by police officers filed a comprehensive FOIA request for the dispatch audio and transcripts, complaining that only "selective audio" has been released so far.

• JAUNT, a regional transportation provider in Charlottesville, reached a settlement with local radio host Rob Schilling over his lawsuit challenging the agency's denial of his FOIA requests on grounds that it was not subject to the public records law. A district court judge sided with Schilling earlier this spring, and as part of the settlement, JAUNT agreed to release information from its 2020 audit and cover $4,000 of Schilling's attorney fees. Meanwhile, Schilling obtained records from JAUNT through FOIA that showed JAUNT has paid the McGuire Woods law firm more than $100,000 during the same period the lawsuit was pending.

• After requesting records from the Windsor Police Department, The Smithfield Times learned that ex-officer Joe Gutierrez, who is named in a lawsuit related to the controversial traffic stop of a Black Army lieutenant, returned his town-issued cell phone with all of its text messages erased.

• Two reporters for the News Leader were arrested in Elizabeth City while trying to cover protests over the shooting death of a local man by police. Despite being clad in media vests and identifying themselves as medial, the pair were arrested for "standing in the street in a roadway" across the road from where the protests were taking place.

• Governor Ralph Northam announced a new, streamlined system for breaking up the logjam of requests for pardons, but the administrationdeclined to disclose how many cases there were or the number of state employees who were being assigned to investigate cases.

• A federal court judge allowed the Petersburg’s former attorney to pursue a wrongful termination suit against the city, but the court threw out the defamation claims the attorney raised against the council and a Richmond TV station. The court held that because the attorney was a public official, he had to prove council members meant to do him harm when they passed a motion to terminate his contract and another motion limiting his physical return to city hall. As for the TV station, the judge said WTVR's inaccurate reporting that the attorney was "escorted" from the meeting (the attorney was actually on vacation) had the "sting to be defamatory," but did not meet the actual malice standard of purposeful "fabrication."
  NOTE: WTVR's general manager serves as the secretary of VCOG's board of directors.

• The Town of Pound voted to turn over its water and sewer system to Wise County so as not to incur millions of dollars in fines and possible criminal prosecution. A lawyer from the attorney general's office attended a meeting in late May to lay out the various options, noting that one reason the town was in this predicament was "because your former bookkeeper is charged with embezzlement." Pound's mayor insisted the lawyer's report be given in open session, saying, "I firmly believe the public has a right to know because it's been kept quiet for way too long."