Though May temperatures were slightly cooler than what we've come to expect over the years, Virginia's FOIA world heated up. The Supreme Court of Virginia released another pro-citizen opinion on FOIA, though, unlike the last four opinions, this one was divided. The opinion addressed a meeting held during the pandemic and we saw other decisions and actions on matters that began during COVID's tumultuous hold on the world. We also saw aggressive responses to FOIA requesters. At VCOG, we dipped our toe into podcasts on our newsletter platform, and we inched tantalizingly close to reaching our individual membership goal for the year:
JUST FOUR MORE MEMBERS!

The Virginia Supreme Court's ruling in Berry v. Fairfax, which voided a comprehensive zoning reorganization in Fairfax, continued to reverberate within local governments. The ruling was based on the court's finding that the rules governing all-electronic meetings during the first 15 months of the pandemic did not allow localities to conduct business on routine governmental matters -- only ones that were time-sensitive or statutorily required -- unless their continuity of government ordinances passed soon after the COVID emergency declaration allowed for it. Fairfax's ordinance did not, the court unanimously ruled, so the county readopted the zoning measure in May. Since then, local governments have been combing through actions taken prior to the adoption of more lenient rules for all-virtual meetings during emergencies implemented July 1, 2021.  A petition to reconsider the case is currently pending at the Supreme Court, which, in the meantime, turned back a motion to reconsider filed by Wegman's in a suit that includes claims that Hanover County should not have held a public hearing on the grocery store's planned warehouse distribution center by all-virtual means. And Charlottesville considered retroactively amending its continuity of government ordinance. “This decision and the reasoning were unexpected and suggested a sudden shift in what was otherwise well-understood and well-settled law,” the city's outside attorney wrote in a report to the city council.

Loudoun County grappled with the fallout from another pandemic-era incident: two sexual assaults by the same student in 2021. The school board there commissioned a law firm to conduct an "independent" investigation into how the school division handled the problem but then refused to release the report, citing attorney-client privilege. On May 30, a Loudoun County Circuit Court judge granted Attorney General Jason Miyares' subpoena duces tecum for the report, noting "Clients intending to avail themselves of the intimacy of confidential communication do not engage counsel to conduct investigations free from the client's direction or control." 

The school board also lost a circuit court case brought by a woman who was banned from attending school board meetings after she refused to follow COVID protocols before speaking at a September 2021 meeting. The division refused her request for the surveillance video of the incident on the grounds that it was too risky to release such video since there was "no way of vetting" people making FOIA requests and those bent on harming the division often do pre-attack surveillance. “There is no profile of an attacker. Any person could be a potential attacker.” The judge noted the administration building doesn't have highly restrictive access.
 

The online news outlet Virginia Mercury launched a feature in May adopting the Twitter-famous hashtag "FOIA Friday." In the intro to the weekly write-up, the Mercury writes, "In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating." To compile the entries for that week, the Mercury is relying in part on VCOG's free daily newsletter, which you can subscribe to by clicking below.

We take a deep dive into recent requests made through MuckRock.com to figure out why the average response time for a FOIA request in Virginia was 63 days.

When you really stop to look at the Virginia Supreme Court's latest FOIA opinions, it becomes clear that we've been riding a trend in favor of citizen access.

Megan tried her hand at a Substack podcast to tell an embarrassing story about herself that serves as a reminder to extend grace for mistakes made during the FOIA process.

The Virginia Supreme Court ruled May 18 that the five Prince William County supervisors who met with police and community members in the aftermath of the George Floyd murder and protests should have followed FOIA because the discussion was "public business."

In a 5-2 decision, the majority in Gloss v. Wheeler reiterated the definition of "public business" put forth more than 20 years ago in Beck v. Shelton: "business that is on a public body’s agenda or is likely to come before the public body in the foreseeable future."

The dissent said this is a new definition and framed its opinion through the lens of this part of FOIA's policy statement: "This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth." The dissent concluded that “topics” are not public business and would have granted more leeway for multiple members of a board to attend and participate in public forums.

In response, the majority wrote, "It can be difficult in the abstract to provide clear benchmarks for determining when a gathering has been called and held for the sole purpose of informing the electorate and when it has, either at its inception or over time, evolved to advance an impermissible purpose such as a discussion relating to the transaction of public business....As a result, we are unable to provide bright lines to guide courts in making this determination—save one. That bright line is VFOIA’s expressly stated presumption in favor of open government.”

According to records produced by the National Park Service, the Paradise Ocean Club on Fort Monroe will not be operational this summer because of delays in lease negotiations. The park service denied access to records showing whether any other businesses have submitted proposals to run the club.

Family members of the victims of the May 2019 shooting at the Virginia Beach municipal complex were surprised to learn that the state commission investigating the incident canceled its April 25 meeting in Richmond without letting them know. The commission has struggled to meet amid the resignations of many members.

The Virginia Housing Development Authority said it had plans to borrow $1.75 billion to expand efforts to help finance single-family home sales. However, the agency did not provide details at the public meeting that was held in a controlled-access building where the security guards were unaware that the meeting was happening. The agency did not take questions from the public, either.

A FOIA request by Richmond BizSense revealed that VCU Health Systems paid at least $73 million to back out of a downtown Richmond development project. Additional emails obtained through FOIA showed that the city considered a revised proposal filed by the developer to be in default and that the city felt misled.

An audit by the Office of the State Inspector General showed that New College Institute did not maintain proper documentation of its programming. The audit was prompted by news accounts, based on public records obtained through FOIA, showing how several partnerships and programs had lapsed.

Not long after NPR reported on audio tapes it obtained from the Library of Virginia that recorded the execution of death-row prisoners at the Department of Corrections, the library transferred the tapes to the DOC, which has since declined requests to release them. Some records included with the tape are available from DOC, but others are off-limits. NPR published the records it photographed at the library.

The investigation by the Office of the State Inspector General of the Virginia State Police's hiring practices ended with a letter -- written by the VSP superintendent -- saying the agency had already evaluated what might have gone wrong when it hired the so-called Catfish Cop, who killed three people in California, and how the agency planned to correct its practices. The Associated Press later reported that a memorandum of understanding between VSP and OSIG says that in nearly all cases, VSP retains responsibility for "the oversight and conduct of internal investigations of its personnel."

The hometown developer of a mixed-use project near Smithfield's historic district told The Smithfield Times that he was "instructed" by town officials to keep estimates of town reimbursements under wraps until after the town's planning commission voted on his rezoning application. A member of the planning commission questioned why those estimates were not being disclosed, prompting an angry reaction from the town attorney: "There isn’t anything hidden, and that sticks in my craw because I’ve been doing this a long time and the implication that there’s anything going on behind closed doors and underhanded offends me to no end."

The Dinwiddie County Circuit Court judge hearing the Irvo Otieno case rejected the defense's request for a gag order on the Commonwealth's attorney. The attorney for the Richmond Times-Dispatch objected, saying there is no evidence gag orders "achieve anything." The prosecutor, who has spoken candidly about the case and released video of the incident, said the public has a right to know what's going on.

Governor Glenn Youngkin signed the bill patroned by Del. Wren Williams aimed at reforming the Parole Board. Among the bill's provisions is the removal of the board's total exclusion from FOIA. For years, the Parole Board has not had to respond to FOIA requests at all -- not for case records and not for any administrative records. Now the entity will be subject to FOIA in the same way other boards and commissions are. A near-identical bill was carried by Sen. Joe Morrissey.

When Capital News Service asked the state's 10 largest school districts for records related to the total number of sexual assault or misconduct reports made against faculty, staff or employees in the past three years, four districts provided the records for free. Other districts either did not respond, stated they had no available records or charged between $125 and $418. Chesterfield initially said it did not have any records "responsive to the request," but eventually clarified that it would have to pull individual records to create a report, which it is not required to do.

According to records obtained through FOIA, the man who has been charged with attacking two of Rep. Gerald Connolly's staffers with a baseball bat had been the subject of 25 calls for service from the Fairfax Police Department.

Members of the Virginia Beach School Board and parents split into factions over the use of FOIA. During a meeting's public comment period, a citizen speaking in favor of a pro-LGBTQ resolution said she had filed a FOIA request "to identify the people who were dumb enough to put their bigotry in the public record for the world to see." Some board members signed onto a letter condemning the comments, calling them threatening and intimidating.

A Richmond man was asked to leave a city council meeting for making comments the council president characterized as homophobic. The president asked the man to leave after the man said drag performances would lead to communist indoctrination. The man refused at first but eventually left without incident.

In turning back an injunction request to prevent the Richmond Police Department from releasing certain closed investigative files, a circuit court judge confirmed that the change in §2.2-3706.1 allowing for such injunctions was prospective only, from July 1, 2022, forward. It didn't apply to a FOIA request filed before that effective date.

The Virginia Public Access Project announced that Chris Piper, the former commissioner of elections and the first director of the Conflict of Interest and Ethics Advisory Council, will take over as the nonprofit's second executive director. VPAP's founder, David Poole, is retiring at the end of June after 26 years at the helm.

The findings of an audit of Hopewell's finances were described by the auditors as limited because the city turned over only 48 of the 82 documents requested by the auditor.

Has law enforcement created a pattern where they release body cam video only when it shows they were in the right? 

Why would a public university insist on a state-issued ID to confirm residency before filing a FOIA request?

Sometimes it can be hard to convince lawmakers and those in a position to change policy or law that citizens and reporters really do face resistance to their FOIA requests that goes beyond just the exercise of discretion or what FOIA says can be done. "Not here," they'll say, or, "You're exaggerating." But consider these letters sent to requesters last month.

"I suggest that you get a part-time job at WalMart ... so that you can pay my fees. From this point forward whenever you send me one of your ridiculous FOIA Requests. In the words of, I don't know...that guy in Top Gun, when he was chewing Maverick out, 'Son, you've been writing checks that you can't cover.' My bill will exceed $200.00 dollars." The three-page email from the now-former Buckingham County registrar also questioned why a member of the board of supervisors was interested in what was going on in his office in the first place.

Meanwhile, in Cedar Bluff, the town's attorney mailed a requester a hard-copy letter telling her that if she didn't use the "proper address" to reach the "correct party," then "no response is required", even though the email address she used was the same one listed on the town's Facebook page.

P.O. Box 2576
Williamsburg VA  23187
540-353-8264
vcog@opengovva.org