VCOG NEWSLETTER:
the month that was
july '24 |
July is known for fireworks and hot temperatures. We got both, and then some, this month, but in VCOG land, we were trying to keep things even keeled by having lots of conversations with lots of different people. We participated in two state-level study groups, gave multiple interviews and answered two dozen calls and inquiries. We also talked among ourselves about VCOG's future. As part of this process, we're asking ourselves what we do well, what we could do better. What is your opinion? We also celebrated a FOIA win in the Court of Appeals. The intermediate court heard another FOIA case in early July, and a third FOIA cases is scheduled for early August. And there was a lot going on with the FOIA Council: Brainstorming by the full council, frank conversations in a workgroup on fees, and an opinion on whether it's OK to charge $315/hour for a review of records under FOIA. Portions of this month's newsletter were written by VCOG's Laurence E. Richardson Legal Fellow, Amanda Millis, who will be a second-year law student at William & Mary this fall. Read on! |
|
|
| Mayor or manager, but not both |
In its first opinion on FOIA since its jurisdiction expanded to include the whole variety of cases from circuit courts, the Court of Appeals of Virginia ruled that towns or cities with mayors can exempt the correspondence of either the mayor or the town/city manager under the working papers exemption, but it can't exempt both at the same time. The decision rebuffed the Town of Warrenton's attempt to withhold over 3,100 emails related to a proposed Amazon data center of the mayor and the town manager, who has since left the town to work for Amazon Web Services. The three-judge panel faulted the trial court for the way it allowed the town to select sample emails for the judge to review. Government defendants have the burden of proving an exemption applies and the way that usually happens is the records are given to the judge to review privately. Here, the circuit court judge said he wasn't going to look at all 3,100 emails and asked the town to pick 10 for his review. The town did so, but the citizens group that wanted the records said the town should have to explain how it picked those 10 records. The Court of Appeals agreed, saying the judge could have required a Vaughn Index (used in federal FOIA cases), random sampling or representative sampling. Each method would require the government to provide a lot more context and information about why the records were selected. The court sent the case back down to the lower court to review sample records of either the mayor or the manager to see if the working papers exemption was otherwise appropriately applied. VCOG filed an amicus brief in the case, represented by Spencer Gall of the Southern Environmental Law Center in Charlottesville. |
|
|
|
The FOIA Council Workgroup began its project to address the problems of FOIA fees with its first meeting on July 8 and the second of four more expected meetings on July 29. The ad hoc group consists of government representatives and attorneys, media and public records advocates, and citizens. FOIA Council members participate, though they coordinate among themselves to avoid any three of them participating at once, turning the meeting into one that has to follow FOIA's procedures. At its first meeting, the group discussed the need for lower costs and greater uniformity. They will consider Sen. Danica Roem’s proposals in SB 324, introduced in 2024, that includes a cap on the hourly charge for records production and a prohibition on charges for the first hour of work for the requester’s first request. Sen. Roem emphasized the need to relieve the prohibitive costs on requesters and for the government to take on FOIA as one of its core responsibilities rather than a burden imposed by citizens. Government representatives referred to the "weaponization" of FOIA by abusive requesters and of the logistical problems of responding to big requests. This latter point was examined more closely at the workgroup's second meeting. Group members talked about gaps in the request process that encourage negotiation but don't spell out how those negotiations impact the overall timeline for responding. Negotiations are an important part of reducing fees because it gives both sides the chance to narrow, clarify and pinpoint the exact records sought thereby reducing the overall amount of records that have to be reviewed: less time, less money (hopefully). The group agreed that the FOIA Council should develop a resource of best practices for making requests, taking VCOG's suggestion to heart that many citizen requesters don't understand how government is structured or how records are maintained, and many others think that they only get one chance to get all the records they want. The group also discussed repeating provisions currently found in the policy section that encourages negotiation in the procedures section. The workgroup's next meeting is Aug. 19. Video of the first meeting is linked above, but video from the second meeting has not been posted yet. |
|
|
VCOG is participating in a task force on animal testing in publicly funded universities. Specifically, the group is being asked to look at what and how information about the use of animals in research experiments can be accessed. |
| |
|
Too much flowery, verbose and bureaucratic language made the relatively straightforward fee-estimate process much more complex sounding that it needed to be. Oh, and $223 for a single, specified email. |
| At its mid-July meeting, members of the FOIA Council shared their concerns and suggested topics the council might take the time to study. We break down a video of the meeting, minute by minute. |
| A citizen blogger was arrested at a Saltville Town Council meeting when he refused to move from the table designated for press. Who is and isn't a reporter when it comes to access to public meetings? |
|
|
The FOIA Council issued a formal advisory opinion on July 9 where it didn't outright say VMI couldn't charge $315 per hour of the superintendent's time to review a FOIA request, but it did make clear that the amount could only be charged if it reflected the actual charge the university pays its leader. VMI said the superintendent makes $656,250 per year, which works out to roughly $315/hour. The state budget accounts for $166,964 of that total, while the balance is paid by the VMI Foundation, a private entity. "If some portion of the Superintendent's salary is paid by the Foundation, which is not a public body, then that portion may not be included as part of the actual costs incurred by the Institute," the council wrote. "However, if the Institute pays the entire annualized base salary, then that salary would be properly used to determine the actual cost incurred by the Institute." The opinion also noted that there is not a conflict of interest when a public official or employee conducts a search for records that are about that official or employee. Because every FOIA request potentially implicates the person who is searching for or compiling the records, good faith is presumed. "Unless there is evidence to the contrary, the presumption remains that these individuals are performing their duties appropriately." |
|
|
| open government in the news |
|
|
After receiving what they characterized as a high number of FOIA requests, Warren County Public Schools initiated a fee system charging for search times, printing, and incidental costs of processing responsive records packages. Meanwhile, the county board of supervisors delayed making a decision on adopting two new systems for archiving social media records and tracking FOIA requests, which county staff said would streamline records maintenance and production and ensure consistent compliance with FOIA. Charles Byers’ family is suing the Chesterfield Police in civil court for excessive force after one of its officers shot and killed Byers last summer while he was experiencing a mental health crisis. While the department maintained the shooting was justified, they continued to fight FOIA requests from Byers’ family to release the video, which the family argues shows no provocation from Byers before he was shot. The video was finally obtained and released by the media after it was included in a filing in federal court. Meanwhile, video footage from 2019 obtained from other federal court records revealed the same officer previously faced an excessive force suit after punching a driver in the face during a traffic stop. NPR was in court appealing a decision that allowed the Virginia Department of Corrections to continue withholding the audio recordings an employee madeof its executions. NPR had initially obtained four recordings from the Library of Virginia before learning 32 existed in total and had been transferred back to VDOC. NPR then filed FOIA requests for release from that agency, which VDOC refused, citing several exemptions. The circuit court agreed with VDOC, allowing VDOC to withhold the recordings in their entirety. The Virginia Court of Appeals heard oral arguments in July and is now considering the extent of VDOC’s authority to exclude records of its conduct from public oversight. Going against the recommendation of its police chief, the Lynchburg City Council voted 6-1 against banning the use of pickets or poles to hold flags or signs inside council chambers. The council also voted against prohibiting the blocking of entrances, exits and doorways to council chambers.
According to campaign finance records compiled by the Virginia Public Access Project, a Lynchburg school board member who was recently reappointed to the board by the Lynchburg City Council has contributed more than $40,000 to the campaigns of various city council candidates in the past two years.
A general district court judge in Spotsylvania dismissed the assault charges leveled by one county school board member against another. "Chaos is a good word" to describe the relationship among school board members, the judge said, as he reminded the members to focus on kids in the district. By the end of the month, however, the atmosphere hadn't changed much. The same member who said she had been assaulted, then accused other board members of discrimination, saying she and another member are treated unfairly and laughed at.
A federal judge dismissed the lawsuit brought by a former school board member in Isle of Wight County against the county's prosecutor and a sheriff's deputy, which accused them of malicious abuse of process for their roles in trying to recall him. The school board member accused the pair of conducting an illegal search, but the judge pointed out that some of what he was claiming was private information was actually found on the member's publicly available statement of economic interests. Richmond's general registrar started out the month promising that his office would stop hiring and awarding contract labor to family members. The announcement came after a city investigation revealed he had violated nepotism policies by contracting with his wife 13 different times. He found himself amid controversy again by the end of the month when a candidate for Richmond City Council accused his office of providing incorrect information about paperwork.
A military spouse who lobbied for the reinstatement of benefits omitted from the state budget for the Virginia Military Survivors and Dependents Education Program and who is a member of the governor's task force studying that program says she was denied access to records by the governor's office when she filed a FOIA request in June. The request for records going back a year were withheld under the governor's working papers exemption, a decision the governor's spokesperson said was routine. Several environmental groups asked the U.S. Environmental Protection Agency to step in to force the Virginia Department of Environmental Quality to make public data submitted to the agency by AdvanSix. DEQ has allowed the Hopewell-based chemical company to withhold pollution emissions projectionsfrom a permit application after AdvanSix said those numbers would reveal confidential business practices. |
| A former law enforcement officer with U.S. Fish and Wildlife obtained documents from the Virginia Marine Commission that showed the agency spent more than $183,000 on a boat for the Marine Police, a boat he claims was well-appointed with unnecessary fishing equipment. A VMRC spokesperson said those features would be removed before the vessel's use and that "superfluous features that do not affect its usage as a law enforcement patrol vessel are not relevant or considered in the purchasing process." Meanwhile, a 2022-2024 state budget provision allows VMRC to tack on a "reasonable fee per record" for anyone requesting copies of computerized lists of licenses used by the commission. (See page 209.)
Journalists obtained a video through FOIA from the Suffolk Public Schools that showed when a man slipped into an elementary school, eventually barricading himself and some students inside a girls' bathroom. The district's spokesperson would not comment on the video other than to state, "We also respectfully warn that playing this video risks re-traumatizing the families involved and that the school division is not in support of doing so.”
The Fairfax County Circuit Court launched its new eCaseSearch system that allows anyone to search case information for free. Previously, access to the county's system -- which does not use the Supreme Court of Virginia's case management system -- cost $600 per year for subscribers. The system is only for basic case information; case documents are not included, just as they are unavailable on the statewide system.
Two members of the local branch of the NAACP in Middlesex County urged the school board to change its public comment period rules to allow pastors to speak on behalf of students, parents and families even if they live outside of the county. The issue came up last fall when the pastor of a church in Saluda was not allowed to speak on behalf of a parishoner who received a 43-day suspension because the pastor resides outside the county in James City County.
The chair of the Frederick County Board of Supervisors said he would not use his authority to quell booing or applause by those attending board meetings. His decision was preceded by a public comment period the week before that was laced with profanity, and by an assertion in June from a citizen who said she felt unsafe speaking at meetings. The chair insisted that using the gavel to shut down such behaviors "would be an abridgement of free speech."
A federal jury sided with a Pittsylvania County resident who sued the former chair of the board of supervisors for having the resident -- whose brother is also on the board -- forcibly removed from a November 2022 meeting. The resident got up to speak during the public comment period at that meeting, saying he wanted to talk about "the BOS chairman's favorite special interest group, fire and rescue," when the chair interrupted him, told him his time was up, turned off his microphone and asked that he be escorted out of the meeting or else face trespassing charges. The former chair explained that the resident was abusing the process and could not disrupt meetings by attacking board members.
Four men accused of carrying guns in a school zone were acquitted, though one was found guilty of a conceal-carry charge. The latter man said he came armed to a July school board meeting because after he spoke at a meeting in June, the tires on his vehicle were slashed. The jury found that the building where the meeting was held wasn't a school zone. Though a Head Start program is based there, it wasn't in operation at the time of the meeting, and the jury found that the ban only applied to preschool programs while they are in operation.
Richmond Jet Center, a "fixed-based operator" at the Richmond International Airport, providing fueling services and amenities for general aviation crew and passengers, filed a FOIA lawsuit against the Capital Region Airport Commission for withholding records about its cancelation of a bid process for FBO services under an exemption for confidential business records that could affect contract negotiations. RJC said it was specifically not looking for contract negotiation records. Sources told VCOG that the commission provided some documents after the suit was filed.
A month after Portsmouth provided records to The Virginian-Pilot about how much the city paid in severance packages since 2019, the city told the paper that it had unintentionally omitted additional records that showed the total was $1.02 million, not $896,318. The city said it was working out the purchase of a records management system to better track FOIA requests.
A retired Air Force officer who testified before Congress about the government's involvement in "crash retrieval and reverse engineering" involving UFOs sued the Loudoun County Sheriff for releasing personal information about him in response to a FOIA request made by The Intercept four days after the man's testimony.
|
|
|
The same Richmond employee who the city's former FOIA officer says told her to answer FOIA requests in ways not supported by the Act resigned her position in July after it came to light her purchase card had been suspended for purchases beyond what was allowed by city policies. Many of those purchases were going towards a video business run by her former business partner in Georgia. It wasn't just her, either. A review of 23,000 p-card transactions obtained through FOIA by the Richmond Times-Dispatch showed 96 cardholders exceeded the city's $5,000 single-transaction limit 345 times, and 15 cardholders exceeded the monthly $10,000 limit. Asked July 9 about whether these departures from policy had been properly documented or otherwise authorized, the city had still not responded by July 22. Towards the end of July, the city announced it was launching an independent assessment of operations in the city’s Department of Procurement Services. |
|
|
Blindsided by public notices? |
|
|
| | Over the course of many months last summer, VCOG participated in a study of the Code of Virginia's public notice laws. These are notices that must precede a public hearing on consequential decisions like tax hikes and school redistricting. Notice of these hearings -- which are different from ordinary public meetings -- has to be published in newspapers, and this study group was trying to standardize the many different requirements for frequency and advance notice. The Virginia Municipal League, the Virginia Association of Counties and the Local Government Attorneys Association were active participants and frequently brought specific concerns of various localities to the group for discussion. It was a highly productive and collaborative process. The proposals were packaged for legislation this year and proceeded through the 60-day session without a hitch. The governor signed the bills at the end of March. And yet... Fairfax County said this month it would have to delay its vote on new rules for data centers because of a staff error related to the new public notice rules. And the Town of Smithfield lamented that because of the the planning commission's meeting schedule and The Smithfield Times' publishing schedule, permits would be delayed by at least a week. |
|
|
Virginia Coalition for Open Government |
|
|
|
