Sunshine Report for April 2022

General Assembly wrap-up

The General Assembly adjourned its regular session March 12 (a special budget session is scheduled to start April 4). VCOG had many successes: working with legislators to either strike their bills (see the bills on FOIA requests by certified mail, changing the definition of "public meeting" and creating a centralized public records database), or to amend sections VCOG found problematic (see the bills on milage user fees, the Virginia Employment Commission and an exemption for donors to nonprofit organizations). Click here for VCOG's bill chart.

VCOG was glad to see bills pass to require local governments to post meeting minutes, to require estimates for FOIA fees and to subject the Parole Board's votes to FOIA.

A bill VCOG had been working on since the summer to streamline and add flexibility to the rules for any public body to hold occasional all-virtual public meetings was changed at the last minute to exclude "local governing bodies, local school boards, planning commissions, architectural review boards, zoning appeals boards, and boards with the authority to deny, revoke, or suspend a professional or occupational license."

Our biggest defeat came down to the very last day of session, when several Democrats sided with all of the Republicans in both chambers to essentially repeal the bill passed year on access to criminal investigative records.

Despite misunderstandings (or misstatements) about whether current law prohbits disclosure of photos of crime victims (it does), and despite the fact that Albemarle County -- who had received a request for records in the Hannah Graham murder case -- did not release any records in that case after it estimated it would cost the requester nearly $77,000, lawmakers passed HB734 that will guarantee access to victims and lawyers for defendants, but says it's discretionary to release it to anyone else.

Given that prior to 2021, police and prosecutors routinely denied requests for closed investigative files, that discretionary status is as good as a no to reporter, citizen, advocate, historian or interested party who asks for any part of an investigative file in any case.  As further disincentive for police and prosecutors to release a record in their discretion, the bill also allows victims to sue to block release.

The bill severely limits the public's ability to oversee the work of police and prosecutors and shields case files, even for cases involving police officers decertified for lying or public officials for conduct while in office.

VCOG has written to the governor asking for amendments but is not holding out much hope.
 

- M.R.

VCOG's annual conference returns

Zooming through Sunshine Week

VCOG held three lunchtime drop-in Zoom chats during Sunshine Week, cheekily dubbed "WTF!? What the FOIA." VCOG's Megan Rhyne was joined by citizens across the state who had questions about FOIA, the legislative session and records management. Look for the occasional WTF session in the future. (Hint: the next one will be April 29 -- check our Facebook and Twitter feeds for the links, or sign up for our daily newsletter to up to date.)

Back in training

VCOG's Megan Rhyne is back in training! She gave a 45-minute presentation on FOIA's records provisions to  Charlottesville department managers, a brief primer on records retention to the foundation that supports the Williamsburg Regional Library, and will do an hour-long presentation on records and meetings for the Rappahannock-Rapidan Community Services Board very soon. To schedule a session of any length -- in-person or via Zoom -- send a request to vcog@opengovva.org

Open Government in the News

The Department of Education denied a FOIA request for communications between staff members and an outside party, citing the exemption for the governor's working papers. 

Wise County Clerk of Court Jack Kennedy -- long known for using technological innovations to promote public access to information -- is launching a project to use blockchain technology to enable “faster, better, cheaper access” to land records. 

It was a bumpy month for the Montgomery County School Board. Starting out, the board chair apologized for leaving a meeting after being confronted by a citizen during public comment period. When the same citizen renewed the confrontation, the chair resisted her colleagues' calls to have the citizen removed from the meeting. Not long after that, the board abruptly but unanimously fired its superintendent. That raised questions by the county board of supervisors that the assistant superintendent of operations said he was not authorized to answer, but also acknowledged that there was "a lot of misinformation out there." Two weeks after the firing, there was still no information about whether the superintendent would receive severance pay but asked the public to trust the board's decision.

Likewise, the Spotsylvania County School Board had multiple challenges in March. Email obtained by The Free Lance-Star showed the board chair asked the county for a delay in considering a particular budget discussion, even though he said publicly, "I did not tell the county staff to reschedule a public hearing" on the matter. The chair canceled a meeting mid-month because of a "lack of quorum." Three members said they were planning to attend and it was unclear whether the remaining four could not. Additionally, a recent graduate of a county school filed a FOIA suit against the board, and a judge ruled that one claim could proceed: whether the board chair willfully and knowingly violated the act when he "declared and conducted an unlawful closed meeting without holding a vote to go into closed session."

The Breeze newspaper at James Madison University, relying on email the paper's editor paid for through a GoFundMe campaign, reported on the fallout from Fox News' report on a controversial diversity training video for incoming freshmen.

They're among the last localities to still be holding all of their meetings via Zoom, but both Albermarle County and the City of Charlottesville signaled some intent to go back to in-person meetings. Albemarle said its board of supervisors, school board and planning commission will go in-person -- with options for the public to watch and speak virtually -- in April, though it said it was unclear when its lesser public bodies would make the switch. Meanwhile, Charlottesville said it didn't have a time frame in mind, but that it would be submitting a "safety plan" for moving to in-person in the future. The city's school board has been holding hybrid meetings (in-person and electronic) since May 2021.

Threatened with the revocation of its charter via a bill passed by the General Assembly in 2022, and acknowledging that "our house is a hot mess," the Town of Pound took steps to get their government house in order. A judge appointed new members to fill vacant seats (though one declined), the town council voted to pay bills that were overdue (some had been lost), and the council received training on FOIA. On the other hand, the FOIA training was conducted by the acting town attorney in closed session.

The Virginia Supreme Court heard arguments from lawyers for the Richmond Times-Dispatch for why the high court decided to seal records filed by the former chair of the Parole Board. Not only did the court put Adrianne Bennett's records under seal, it also sealed the order that explained its reasoning.

A high school senior in Marion has been keying in information about the people buried at Round Hill Cemetery. The resource will allow citizens and town officials to quickly find plots.

A citizens group in Loudoun filed a lawsuit to force release of a report about how the school division handled allegations of sexual assaults committed by the same student at two different schools. Though the report was commissioned as an "independent review," the school superintendent said it was protected from disclosure by the attorney-client privilege.

A King George County supervisor complained about what he called a lack of transparency between county officials and the board of supervisors, the service authority and the public. He said he did not like the way supervisors had been briefed about problems with the authority in groups of two, which are legal under FOIA but were "not open to the public and this is not transparency." The same supervisor expressed surprise when he was charged by the county for records related to the service authority.

Portsmouth replaced its interim city attorney for reasons that have not been made public other than to say that it was related to the attorney using “highly inappropriate” language during an encounter with the mayor and another council member during a closed session.

A Frederick County supervisor left a joint meeting of the board of supervisors and the school board after a school board member accused him of calling another school board member a "sh--head" during the meeting. The supervisor denied saying it, but a member of the audience called out, "Yes, you did! We saw it."

The attorney for Staunton repeatedly reminded city council members not to mention or allude to the former city manager while discussing citizen concerns about the forced resignation of that city manager. 

A Staunton city council member questioned whether her son -- about to stand trial on a murder charge -- could get a fair trial in the city because of community anger towards her and the rest of the city council.

The Shenandoah County School Board referenced emails obtained through FOIA that supported ending the board's relationship with its outside attorney. Some emails showed the attorney "didn't seek out all board members" when proceeding on the issue of renaming a school. Additionally, some of the emails were not disclosed. At the time, the attorney was the person who oversaw FOIA responses.

The Fairfax Police Department declined to identify an officer by name or rank in relation to the officer's demotion during an ongoing investigation into the response to the suicide of a department recruit and his wife.

Prince William County school initiated charges against a Woodbridge man for trying to disrupt two recent school board meetings. A disorderly conduct charge was related to the man's use of a bullhorn at a meeting that was temporarily cleared for security concerns. A trespassing charge was related to the man's attempt to gain entry to the meeting through an employee-only back door.

A FOIA request by the Richmond Times-Dispatch for salaries in the governor's office led to the discovery that an aide to former Speaker of the House Kirk Cox and now in private practice, was working voluntarily as Gov. Glenn Youngkin's deputy chief of staff. Though there is precedent for using private consultants, the relationships are usually publicly disclosed.

The Hanover County School Board backed off from its proposal to prioritize the comments of local residents over those from people without children, business owners, school employees and people from outside the area.

Despite being warned by its attorney, the Warren County sheriff said the Rappahannock-Shenandoah-Warren Regional Jail Authority needed to meet in closed session about a recent inmate overdose. The sheriff said the personnel exemption applied because they would need to talk about whether policy and procedures were being properly followed.