I'm sensing a trend here. Each month seems to bring new developments to FOIA Litigation World. In September, VCOG filed a friend of the court brief in another working papers-related case, and in a criminal trial, a judge ordered the release of a report kept under wraps by a school district since January 2022. The FOIA Council heard potential legislative proposals for 2024, another police department refused to release police officer names in their salary database, and Amazon confirmed it was redacting records. On a more positive note, we saw the introduction of a new FOIA portal, making access to information more user-friendly, and a Peninsula city said it would move its meetings to various locations around town to engage with a broader audience.
 

VCOG filed a brief with the Virginia Court of Appeals in a case challenging the use of the working papers exemption in the Town of Warrenton. The town says it can withhold messages belonging to both the mayor and the town manager, whereas common practice has been that the exemption is extended to one or the other.

But while the working papers exemption is the underlying crux of the case, VCOG's brief focuses on the impact of certain procedural aspects of FOIA litigation that took place at trial. Though thousands of records were withheld, the jue looked at just a handful of them, determined they were properly withheld and decided that all of the records could thus be withheld because there was "no indication of bad faith" by the town. The brief says this went against the FOIA provision that requires the government to prove "by a preponderance of the evidence" that each record is exempt. Plus, the few records the judge reviewed were hand-picked by the town without any explanation.

It might sound like we're being picky, but consider the implications: "If this Court affirms and this approach proliferates, nothing will stop the government in future VFOIA cases from cherry-picking its submissions to create a more favorable — but potentially misleading — portrayal of the records in dispute."

The brief also explains how and why FOIA cases are different from ordinary civil litigation. The plaintiff almost always starts at a disadvantage because, essentially, he doesn't know what he doesn't know. By contrast, the government holds all the cards and has full control over them. When the government says public records are exempt, the petitioner doesn't have what he needs to prove otherwise.

The VCOG brief was penned by Spencer Gall, Tyler Demetriou and Deborah Murray of the Southern Environmental Law Center. A separate amicus brief was filed by the Reporters Committee for Freedom of the Press and signed by 22 media and transparency organizations, including the Virginia Press Association, Fauquier Times, Prince William Times, and the National FOI Coalition (VCOG serves as the administrator of NFOIC but is not involved in decisions to sign on to briefs).

The HB 1880 Workgroup discussed the bill referred from the 2023 session, which was based on a request from VCOG, that would require local governments to create a record of the amount paid to settle a case against it for things like personal injuries or employee misconduct. 

The Meetings Issue Subcommittee reviewed the impact on local government of two Virginia Supreme Court court cases from this past spring: one having to do with the remedy available for a meetings violation, and the other about the definition of "public business" in the meetings context.

First it was commissioned. Then it was withheld. Then it was ordered disclosed to attorneys. And now, finally, the report conducted by the Loudoun County Public Schools' law firm (Blankingship & Keith) has been released to the public. The school board hired the firm to investigate the way it dealt with reports of two sexual assaults by the same student in different schools. The district then threw a multitude of reasons at calls to release the final product: attorney-client privilege, federal law on student privacy, redactions that would only create more questions, and speculation about what else the district might be compelled to release. The report's release was prompted by a joint motion by the attorney general and the former school superintendent, who was being tried on charges related to the assault incident. The report is 35 pages long. Student information has been redacted, and eight pages are labeld "analysis" & "recommendations," all of which could be plausibly supported by an exemption. But the remaining 27 pages?

When the attorney for the Flint Hill Volunteer Fire Company, Whitson W. Robinson, filed a FOIA request for Rappahannock County Board of Supervisor Ronald R. Frazier's records, it led to the following colorful exchange. Frazier: "It’s like asking for my mother’s cookbook." Robinson: "If Mr. Frazier’s mother’s cookbook contained government communications about the misuse of property paid for by Rappahannock County taxpayers, then yes, I want that cookbook.”

Three months after a court ordered it, the Richmond Police Department finally published 32 of its "general orders," that is, policies regarding officer conduct and the rules on using body cameras, but those general orders did not include a First Amendment policy. The court's order in June was in response to a settlement with activists and journalists over protests in 2020.

The City of Suffolk unveiled its new online portal for submitting FOIA requests. JustFOIA will be offered in addition to, not in place of, more traditional methods of filing requests -- letters, emails, in-person, etc.

The Suffolk School Board refused to let a woman pray during the public comments portion of a public meeting. After offering general comments, she said she would like to pray for the school division but was told by the board chair that she couldn't do that, which prompted several people in the audience to begin praying out loud.

Governor Glenn Youngkin issued a pardon to the Loudoun County parent whose arrest at a school board meeting sparked statewide -- and national -- parents' rights movements. Scott Smith was removed from a meeting when he made threatening gestures and statements when speaking out against state-mandated protections for transgender students following his daughter's sexual assault by a male student wearing a skirt.

Following the lead of other 21st-century Virginia governors before him, Gov. Glenn Youngkin refused FOIA requests for his calendar. The requests came after campaign finance records showed he used Altria's private jet to fly to an undisclosed location at an undisclosed date and time.

Despite being coded as a "Funeral Catering-Public Event Sponsored by the City" in records produced under FOIA, the only city-related event that day appeared to be the funeral in Petersburg for a Hopewell murder victim. The records disclosed a $700 catering charge by a city councilor on the city clerk's credit card.

A Hanover parent is challenging the Virginia School Boards Association's assertion that it is not a public body subject to FOIA. The parent is asking the Hanover Circuit Court for a declaration that VSBA is a public body and for an order requiring the organization to comply with the parent's request for various income and expense records, employee salaries and tax returns.

A judge in Augusta County put off ruling on the petition brought by Augusta Free Press publisher Chris Graham that centers on recordings made by a board member in a closed meeting. Part of the argument is that the closed meeting was improper, and that's why the judge delayed making a ruling. He wants research into whether a board member falls within the personnel exemption for closed public meetings, and whether the member was even on the board at the time of the closed meeting, having submitted his resignation just prior.

The 2023 Commonwealth Technology Award went to Rockingham County Circuit Court Clerk Chaz Haywood and the team responsible for the Histories Along the Blue Ridge project, which is digitizing a collection of courthouse documents showing the impact construction of the Blue Ridge Parkway had on local communities.

The Loudoun County Board of Supervisors chair shot down a colleague's attempt to force a vote on a proposed revision to the board's travel policy saying it conflicted with a prior resolution to have county staff research policies in other counties. The chair said she gave her colleague the chance to talk to staff. "If you look at your phone, I sent you a text this morning at 8:50."

A judge in Chesapeake ruled a city councilwoman did not violate FOIA in her personal capacity when she did not disclose two records she had circulated at a closed meeting and then threw away. The case isn't over, though, because the judge still has to decide whether she and her colleagues on the council violated FOIA in their official capacities when another member did not disclose the photos of the destroyed documents until well after the deadline for responding to request for records.

The University of Virginia Board of Visitors had a discussion about whom the board serves: the university itself or the state. After a guest presenter made the case for the former, some board members made the case for the latter. A reporter in attendance quoted those board members as saying the board was a public body that spends public money and is subject to FOIA. The meeting minutes discussed the presenter's points at length but did not detail the objections.

Thousands of email messages obtained by Richmond BizSense through FOIA showed that red flags were being raised as VCU Health took on more and more risks in its now-abandoned attempt at a downtown development project. An outside analysis highlighted some potential problems that VCU Health's CEO -- who came on board after the project had already been approved -- pointed out to VCU's top administrators and VCU Health's board.

Records obtained through FOIA showed that the company engaged by the Board of Education to alleviate teacher shortages by offering specific training in lieu of education degrees did not meet minimum state standards for special education courses and that the board was not told about the deficiency prior to approving the relationship. The records also showed the state superintendent asked about limiting the disclosure of related records in response to newspaper FOIA requests.

In an effort to reach more citizens, the Newport News City Council plans to hold its 2024 public meetings at various locations around the city.

A Spotsylvania School Board meeting lasted well past midnight and included a three-hour closed meeting to discuss "personnel matters" and "consultation with legal counsel," though three members of the board balked at the latter and then refused to certify the closed meeting afterwards, saying the board members also talked about school finances, teacher shortages, staffing, athletic fields, and other pending litigation that wasn't disclosed before entering the closed meeting.

Picking up on a district court judge's ruling in Chesterfield County, the police department in Hanover County became the latest to refuse to release the complete roster of named employees and salary information, as is required by §2.2-3705.1(1), because the roster would include names of current and potential undercover officers.

While embroiled in a legal battle over access to the email messages of the mayor and former town manager, the Town of Warrenton disclosed site plans for the controversial proposed data center that had been heavily redacted by Amazon. An Amazon official assured everyone, the redactions were "carefully considered and legitimate."

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