Sunshine Report for May 2022
VCOG's annual conference, May 18
FOIA fees
Privacy vs. the right to know
Model FOIA legislation
General Assembly update on FOIA
Citizen activists
Click here for the conference website, which includes further links to register.
A month of litigation like no other
I'd be hard-pressed to recall another month in my more than 20 years at VCOG that featured so many stories about FOIA- and records-related litigation than April 2022.
It wasn't just sheer number, though there were a lot: I counted at least 12.
It wasn't just the number of rulings (versus cases filed): 7 rulings, four filed and one avoided.
It was, perhaps, the variety of government defendants, from the most hyper-local -- one Bristol against the other Bristol -- all the way up to the governor and the Supreme Court of Virginia.
Citizens filed suits on their own, using the general district court form for mandamus or injunction under FOIA and holding their own against government attorneys. And they won.
Citizens and advocates also retained lawyers to make their case, such as the suit against the Office of Emergency Medical Services an addiction-recovery advocate and his attorney won.
Four cases were pursued by media types. They target the attorney general, the governor and even the Supreme Court itself.
Look, no one wants lawsuits. They are expensive, protracted and often acrimonious. That acrimony goes against FOIA's very spirit, something I stress any time I do FOIA training for citizens, press or government: cooperation.
Unfortunately, without litigation, it's increasingly easy for public officials to flout meeting rules or deny access to information. It's easy because there's no disincentive not to.
As David Snyder, executive director of the First Amendment Coalition in Northern California, told the Associated Press in a 2020 article, "What happens on a stretch of highway if the speed limit is 55 if everyone knows there’s never a cop on that stretch of road ever, or very rarely? They’re going to drive fast.”
Litigation is the cop in FOIA-world.
It used to be standard o.p. for government officials to dismiss lawsuits as just the media trying to sell papers/ advertising. But just look at the range of plaintiffs in these cases: a media consortium, two individual media outlets, a lone reporter, a group of citizens seeking racial justice, a group of historic preservation advocates, a city, parents, a climate change sceptic, an addiction-recovery advocate, a former student.
Politicians and government officials consistently underestimate the public's interest in accountability. These lawsuits are powerful reminders that people are watching. People care. People demand and deserve openness in government.
Read summaries of April's shower of cases.
- M.R.
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Back in training
VCOG's Megan Rhyne is back in training! She gave a 30-minute, in-person presentation on FOIA's meeting provisions (plus a sprinkling of records info) to the Rappahannock Rapidan Community Services Board in Culpeper.
To schedule a session of any length -- in-person or via Zoom -- send a request to vcog@opengovva.org.
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Open Government in the News
Three Staunton City Council members were caught on a "hot mic" during a break in a meeting making fun of citizens who misspelled a member's name in their emails about school budget concerns.
More than half a year after the lifting of the governor's emergency order on COVID, Augusta County for the first time voted to use Facebook Live to stream meetings to the public. Two members of the board of supervisors opposed the idea.
More than half a year after the lifting of the governor's emergency order on COVID, Charlottesville City Council met in person for the first time since March 2020. It wasn't quite a return to normal, though, considering only 20 or so tickets to attend in person were offered to citizens. The pre-meeting work session was not open to in-person attendance by members of the public.
Richlands was down to four council members after two members resigned in April. The second member to do so penned a statement that referred to a changed political climate in Richlands and warned citizens of the story of the Pied Piper of Hamelin: "Be careful who you choose to follow; not everyone is as they seem." Of the four remaining members, only two showed up for a public hearing where many citizens came to complain about high utility bills.
On the one hand was the estimated cost of a FOIA request to the Alexandria school district of more than $84,000. On the other hand was the request itself: all emails over two years between the superintendent, school board members and staff on Title IX matters and additional emails using the words rape, harassment, assault, sexual abuse, weapon, police, law enforcement, gang and gang violence. After the district's chief technology officer told the requester that the request would yield approximately 168,300 emails and take more than 2,800 hours to review, the requester narrowed her request, which ended up costing $1,500 -- still not cheap, but also not the cost of a luxury car.
Because the proposed settlement of a lawsuit against Leesburg and Loudoun County by a developer would have required a boundary adjustment that would have had to go through a public review process, Leesburg refused to enter into a private meeting with the county and developer to resolve the issue. The proposed meeting was structured so as not to trigger FOIA, with only two members of the town council and board of supervisors each, plus their respective attorneys and managers.
The Library of Virginia received a $315,000 grant from the National Endowment for the Humanities that will go towards digitizing 250,000 separation notices of World War II-era Virginia service members and making them available online.
Not only did the Mineral Town Council ask Virginia State Police to open an investigation into missing town records, the council then voted to censure the mayor for interfering with the duties of the interim town manager and making disparaging remarks about him, including calling him "a jackass." The council accepted the interim manager's resignation, which was to go into effect May 11, but was later changed to April 22 after the mayor and the wife of a council member wrote letters to the editor of The Central Virginian to complain of rude incidents between the manager and a local business employee. "I cannot continue to work in a town that does not want my services," the departing manager said.
More than two years after announcing a $1 billion agreement between Maryland and Virginia to rebuild the American Legion Bridge on Interstate 495, records of any activity on the bridge are scarce. Maryland rejected a public records request and Virginia said there were no records to turn over. Specifically, VDOT said the agency "has no records responsive to your request because the document does not exist as the details are still under negotiation between the two states.”
A woman who wanted records related to a special use permit that would have allowed the development of a private airstrip on land near her own got a bill from Smyth County for $884.09 instead. The county's FOIA officer said the information required 23 hours of staff time to review 522 pages, including 9.75 hours for the officer's time, 3 hours for the IT director, 7.75 hours for the zoning administrator, and 2.5 hours for an IT specialist.
A Fairfax student didn't have much to say during the school board's hearing on the budget. Instead, to urge the board to continue funding the arts in the school district, the student performed a musical piece on his cello.
The Town of Front Royal was directed by a magistrate judge to disclose its communications with its retained attorney in an investigation into harassment claims made by a former town clerk who says she was repeatedly sexually harassed at work for three years.
The Virginia Department of Health launched an online vital records application in late April. Now, people can request official copies of records online in an application that takes only about five minutes to complete.
Some builders and developers in Richmond have been reluctant to add their name to complaints about the city's permits and inspections office, saying they have been retaliated against or black-listed by the office.
