Sunshine Report for February 2019

VCOG started out the legislative session tracking approximately 75 bills. These weren't all FOIA bills -- some had to do with data on posting checkbook and credit card data, protecting rights of journalists, or requiring disclosure of incentives on state economic development projects -- but most were.

Though there were quite a few FOIA bills, few were exceptionally bad. Many of the FOIA bills added new agencies, departments of commissions to existing FOIA records or meetings exemptions. And another large contingency of FOIA bills would exempt records related to active administrative investigations. While not a blanket policy, historically, VCOG has not opposed these kinds of expansions, but has worked to make sure that they are not any broader than necessary.

As crossover approaches on Feb. 7, nearly half of the 75 bills have been defeated, tabled, stricken from the docket, incorporated into other bills or passed by with a recommendation for further study by other body.

VCOG has worked on other bills that may look like only minor adjustments but that are aimed at maintaining FOIA's policy of keeping all exemptions discretionary.

VCOG's least favorite bills among those remaining are the two (one House and one Senate) that would make the names of lottery winners' names exempt under FOIA. VCOG believes -- as demonstrated by a story in The Virginian-Pilot and media in other states -- access to names helps guard against fraud, but the bills have sailed through both chambers, with the patrons citing the safety and privacy of the winners. Yet, in the Senate, at least, they cited that same Pilot article when overwhelmingly supporting a bill prohibiting the practice of "ticket discounting," which is where one person cashes a ticket for someone else so that the original winner can avoid some sort of debt like child support or back taxes.

Follow the remaining legislative proposals on VCOG's annual bill chart.

A Virginia court ruled Jan. 28 against Virginia Attorney General Mark Herring’s office in a FOIA case over access to records related to the AG's use of outside lawyers in climate-change litigation. While the AG's office provided some records, it responded it did not have other records that were responsive to the request. Plaintiff Chris Horner claimed the records do exist and that the AG's office performed an inadequate search. A Richmond circuit court rejected the AG's motion to dismiss but did not offer any comment or analysis for that ruling.
Read the AG's motion to dismiss and demurrer
Read the plaintiff's response
Read the final order

The 4th U.S. Circuit Court of Appeals, based in Richmond, ruled the chair of the Loudoun County Board of Supervisors violated the First Amendment rights of a local man when she temporarily blocked him from her Facebook page.

The U.S. Postal Service inspector general officially cleared a prominent conservative research group of any wrongdoing for getting its hands on Rep. Abigail Spanberger’s complete and unredacted official personnel file last summer.

The filings related to the divorce of former-Governor Bob McDonnell from his wife were immediately sealed. The reasons for the sealing order were not revealed either.

The Hampton Roads Regional Jail settled a lawsuit filed by a former human resources director who alleged she was forced out after being accused of mishandling a sexual harassment investigation but the terms were made confidential. It did not appear, however, that any money was paid to the employee.

Henrico County remained tightlipped over the proposals submitted to build an indoor sports center at the Richmond Raceway or what it might cost. Not only have records been withheld under an economic development exemption, but the document county staff provided the board of supervisors did not state what Henrico might be paying towards  project.

The Federal Aviation Administration denied The Virginia Gazette's FOIA request for the health records of a pilot who crashed his helicopter into a Williamsburg subdivision, killing the pilot and elderly woman, but the agency did provide the airman records and death certificate, which showed his medical certificate to fly had been revoked the year before.

Though not on the original agenda, the Salem City Council came out of a closed session and added an item to seek the resignation of its city manager. Those voting in favor of ending the city's relationship with the manager did not offer any remarks prior to a vote, nor would they discuss the matter after the meeting.

The Richmond Times-Dispatch wrote on Jan. 15 that 10.5 weeks had elapsed since the Richmond mayor's announcement of a $1.4 billion plan to develop the area around the Richmond Coliseum, yet no part of the proposal has been publicly released. A senior policy adviser said there were still "key components" to work out.

The VCU Board of Visitors approved a 14 percent bonus for its president in December behind closed doors. The board had been in closed session and when it took its vote on the proposal, a sign still on the meeting room door barred the public from entry. "No one realized the door hadn't been re-opened," a university spokesperson said. "That won't happen again."

VCU also withheld nearly 50 pages of records, citing the personnel exemption, regarding a recently hired professor who was involved in a racially charged incident.

First, public records contradicted the Norfolk CSB director's statements about a policy on when security should intervene in office altercations, then the city said it would cost The Virginian-Pilot $56,000 to access records related to whether there had been other violent incidents at the office.

A King William circuit court judge ruled that a county supervisor was acting in his personal capacity when he created a videotape of a county economic development authority meeting. Consequently, the authority's chair did not have a right under FOIA to receive a copy of the recording the court ruled.

After an outpouring of opposition to proposed changes to the public comment rules, the Warren County Board of Supervisors delayed a vote and agreed to keep working on the measure.

The Richmond School Board went into closed session to talk about the proposed budget. The district superintendent said the closed session was necessary to talk about the impact of potential cuts on personnel.  “It would have been impossible to discuss the personnel cuts without it being known who we were talking about,” he said.

The Norfolk school board went into closed session to discuss what it called "the unauthorized use of a school board Twitter account." Staff created an account with the handle @NPSBoardChair in 2015, but it was rarely (if ever) used until this year when tweets appeared poling at tensions between board members.

Albermarle Board of Supervisor members told The Daily Progress that their meetings with staff in groups of two -- which does not trigger FOIA -- were helpful because they allowed members to ask in-depth questions about issues. The county executive agreed with that benefit, but also noted that it was an "expensive use of time where we're using staff resources."

A judge cut the $775,000 defamation verdict against Portsmouth Councilwoman Elizabeth Psimas by more than 80 percent, saying the original amount was excessive. A jury ruled in November that Psimas defamed then-city auditor Jesse Andre Thomas in a television interview not long before the council fired him in 2016.

The Front Royal-Warren County Economic Development Authority appointed a task force to assist an unidentified law firm with an ongoing investigation into an unidentified matter. 

Arlington launchd "Arlington Wallet" to allow users to access budget data in graphs and charts and drill down into each county department’s budget for a clearer look at Arlington’s expenses and revenues over the years. The tool will also let users create their own charts and download any of the raw data for themselves.