Sunshine Report for December 2023

VCOG NEWSLETTER:
the month that was
november '23

November 2023 will be remembered as the month of the withheld reports. Trumpeting the start of an investigation is commonplace, but more and more often the final product is withheld from the public. Remember the inspector general's review of the Parole Board in 2020? Lately it's been school districts, law enforcement agencies and higher education. Read our take on the trend below. And now that the election is over, the race to finalize legislative proposals for 2024 is on. VCOG's been working on a number of proposals at the FOIA Council and with advocates. Finally, November brought us sad news of the passing of one of VCOG's founding directors, Peter Easter. Read about his contributions and legacy. ⬇️

Peter Easter

VCOG is mourning the loss of Peter Easter, founder of Easter Associates, Inc., in Charlottesville and Richmond, who died Nov. 7. Peter was a founding director of VCOG in 1996, and he dedicated time and his considerable expertise while serving on the board as the executive director of the Virginia Association of Broadcasters until the mid-2010s. Peter's close relationship with Charlottesville-area broadcaster Laurence Richardson (after whom VCOG's law school fellowship and citizen award are named) played a pivotal role in launching VCOG. Several other states were in the process of establishing open government organizations at the time, but few could match the robust support and contacts that Peter brought with him from the broadcasting and lobbying contacts. Peter kept an eagle eye on VCOG's finances and imposed discipline on the board's management of our endowment. He made frequent calls to Megan Rhyne when she first took over as VCOG executive director, both to ensure she was toeing the line, but more often to lend an encouraging word or friendly direction. Peter's son Doug served on VCOG's board upon Peter's retirement, and Jonathan Williams serves that role now on behalf of the broadcasters. We will miss Peter and we remain ever grateful to his contribution to our organization.

Report? What report?

It is understandable that in their zeal to Do Something, many public bodies that have been impacted by a horrific event rush to hire someone to conduct an independent investigation.

Please. Someone. Tell us what went wrong.

Then, weeks or months later, the announcement is trumped that the review is complete. The investigation is in-hand. We have the report.

Finally, we’ll have a shared accounting of what happened, when it happened, why it happened and how we can work to make sure it doesn’t happen again.

But, no.

Yes, we have the report, but no, we are not sharing it with the public. There’s a reason we can’t. It’s because of student privacy, or personnel, or attorney-client or working papers. There’s always a reason.

Cases in point: UVA, Richmond Public Schools, Alexandria Police, VMI, Fairfax County Schools, Loudoun County Public Schools, Virginia ABC, Virginia State Police/Richmond Police.

And UVA's latest reason for why they can't release their report is so it won't interfere with the prosecution's case against the man who allegedly shot three former football teammates. What does that mean? It means that everything else in that report -- including UVA's interactions with the defendant before the tragedy and its response after it -- goes unexamined, unexplained and unaccounted for.

The public deserves better.

FOIA Council subcommittees hear issues affecting citizen access to elected officials

A two-person subcommittee of the FOIA Council recommended a proposal to allow members of a public body who meet the statutory definition of disabled to participate remotely and be counted towards the public body's physical quorum. VCOG supports the proposal.

The same subcommittee could not agree on a general suggestion to allow unlimited all-virtual meetings for some, if not all, public bodies, but they did agree to send it to the full council for discussion. (Note:these proposals are about the members of the public body meeting virtually; the public is already allowed to attend that way if the public body has chosen to provide such access.) VCOG opposes further expansion of existing rules, and laid out its reasoning in this handout.

A different subcommittee refused to recommend a pro-transparency bill that would have required local governments to create a record of how much they paid to settle a case. It's actually already the law of the land since a 1990 Virginia Supreme Court case, but some people are getting around it by settling claims through online portals and not creating a record. VCOG supports offering the proposal in 2024.

And a third subcommittee moved forward two proposals offered by local government attorneys that attempt to counter two Virginia Supreme Court rulings from the spring. One would create a statute of limitations for FOIA cases and possibly tweak the remedies (government attorneys don't want a judge to be able to declare something "void ab initio" -- an action that is void has no legal effect and cannot be ratified or validated). The other tries to clarify that public officials can show up at social, ceremonial, civic, educational, etc., functions without triggering FOIA's notice requirement as long as they don't talk among themselves. There was also discussion but no agreement about defining the term "public business." VCOG is sensitive to some of the concerns but is keeping an eye on proposals that take more and more discussions out of the public eye.

The full FOIA Council is expected to meet in some time in December.

On the road

In November, VCOG's Megan Rhyne co-presented a webinar on FOIA to Virginia Press Association members with Ian Kalish of the First Amendment Clinic at UVA Law School. She taught two of three installments of her class on the legislative process at William & Mary's Osher Institute. Pictured at left are Megan's guest speakers Scott Maddrea, former deputy House clerk for committee operations, and Jeff Finch, former deputy House clerk for legislative operations. She also participated in work group meetings studying public notices and FOIA Council subcommittees. She discussed legislative priorities with multiple advocates, lobbyists and legislators.

NOMINATIONS OPEN

VCOG is currently accepting nominations for our annual FOI awards. Click the image above to nominate your open government hero in the categories of citizens, media and government. Winners will be recognized at VCOG's annual conference in April 2024.

open government in the news

One day before a judge was to hear a FOIA case brought by a WTVR reporter against Richmond over the city's refusal to release records related to a dead tree that fell on and killed a city worker, the city released the records. The records showed that the tree had previously identified for removal.

On the eve of a court hearing scheduled for a FOIA case brought by the NAACP against the Youngkin administration over records related to the rights-restoration program, the administration released a batch of relevant records. The attorney general wrote that the records were all exempt from mandatory disclosure under the working papers exemption of FOIA, but they were being released anyway.

Neither the Virginia Department of Health Professions, the Board of Pharmacy nor the Cannabis Control Authority could provide the Capital News Service sales data from the state's medical marijuana program. VDHP said the CCA had it, but the CCA said it didn't. And the BOP said it wasn't authorized to collect such data. The CCA said it plans to track sales data when it takes over regulation of the program in 2024.

The Augusta County School Board issued a reprimand against a board member for his behavior at a public forum. After being interrupted several times by a woman in the audience, board member Nick Collins pounded the table and yelled, "How about shutting up, lady. "

The Prince William County Planning Commission heard public comment from hundreds of citizens, both online and in person, for nearly 24 hours at a meeting in early November before ultimately voting to recommend denying three rezoning applications associated with the county's Digital Gateway Data Center proposal.

The Lynchburg City Council voted 5-2 to censure a fellow council member for his behavior towards other council members, staff and citizens. Even one of the councilman's allies voted to censure, saying, "I love you, brother, but your attitude has been out of order."

Fauquier County voted to enter into a settlement over a failed deal with a provider of subsidized high-speed internet service to rural areas. Not only were the terms of the deal kept confidential, but the county wouldn't even say whether any taxpayer money was being spent to pay for the settlement.

The Prince William County Board of Supervisors proposed new rules for public comment periods it said were needed because teacher union reps were crowding out other potential speakers. The proposal would prevent speakers from signing up for two subsequent meetings after speaking at one. The proposal would also prohibit audience members from broadcasting the comment period.

The Suffolk School Board backtracked on a previous pronouncement that kept a woman from praying during her public comment time. National media outlets picked up the story when the board told the woman she could not pray. The board later said allowing the woman to pray would have only negligible impact on the school board or the city.

In an interview with an TV reporter about a judge's dismissal of two recent cases, the Portsmouth commonwealth's attorney complained that the reporter was unprepared since he had a copy of a letter the attorney general wrote the CA but not the CA's response. The reporter admitted he was unaware of the response letter, but when he asked for a copy of it, it took the CA a week to produce it.

The Piedmont Environmental Council indicated it may file a FOIA lawsuit against Orange County. Records provided in response to a request for a rezoning application information redacted sender and recipient names and random words without citing an exemption allowing them to do so.

The new superintendent of Loudoun County Public Schools defended his delay in telling school board members about recent student overdoses on the grounds that he was trying to comply with federal student privacy laws.

A Chesapeake judge dismissed FOIA claims made against the city council by a member of the city planning commission over records he said were circulated during a closed meeting. The judge had previously dismissed the same claim against the individual member who had the records in the meeting. The judge ruled it was the city clerk who would have been the custodian of the records, not the council or the councilwoman.

Developers of the former Afton Inn in Front Royal pulled out of planned update to the town council when notice went out that the meeting would be open to the public. There are many matters that can be talked about in closed session, the mayor confirmed, "but hearing about an update on a building would not be one of them."