Sunshine Report for February 2022
photo: Ned Oliver, Virginia Mercury
General Assembly update
The House General Laws Subcommittee on FOIA met last week to handle 13 bills, and the Senate General Laws Committee heard another 5 FOIA bills.
Click here for a rundown of the bills that were reported, defeated and some that were blessedly struck from the docket (at the request of the patron), like the one that would have required FOIA requests to be made by certified mail!
Among the bills that were defeated, unfortunately, was HB 899, the FOIA fee reform bill carried by Del. Roem.
There's still plenty of work to be done. You can check out VCOG's bill chart to see which bills we're following. You can read our position papers on the original drafts of bills we are paying special attention to. And you can check out the handful of notes below in the Open Government News section to see how some other bills are connected to recent news stories.
VCOG is actively working with other bill patrons, like Sen. Hashmi on SB 200 and Sen. Vogel and Del. O'Quinn on SB324 and HB970, respectively. Hashmi's bill has to do with a FOIA exemption to protect the names of tenants who report sewage accidents. We're trying to narrow the language down since, as written, it would apply to any sewage spill (residential, commercial, industrial) and would protect the name of both complainants and bad actors.
On the Vogel/O'Quinn bill, which is based on a model bill from Americans for Prosperity aimed at protecting names of donors to nonprofits, we have worked to get the legislation to focus on the collection of that information instead of, as it's currently written, changing the definition of "public record" in FOIA. VCOG -- a nonprofit -- does not take a position on the collection issue.
- M.R.
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Support VCOG's work at the legislature by donating today!
Jenay Tate
Jenny Tate, a founding director of VCOG and the longtime publisher of The Coalfield Progress, died Jan. 15. Her obituary appeared in the Jan. 17 edition of the paper.
Open Government in the News
Following a report in December about the murky relationship between the Norfolk Housing and Redevelopment Authority and the separately funded Hampton Roads Ventures, several Norfolk City Council members said they wanted to know more about why HRV invested so much of the federal grant money it received into projects around the country instead of in Norfolk. And it took an interview with the retired executive director of NRHA to shed light on the link between the two entities: due to turnover in 2012 or 2013, HRV didn't have adequate staff and so was run by NRHA.
NOTE: There are entities similar to HRV throughout the Virginia Code: non-profit entities (and not just university foundations!) designed to support the public body's mission or work, but without the oversight that FOIA can provide. They share employees and do work that the public body would normally do, but they are not subject to FOIA. SB478 has one of these and it just passed unanimously in the Senate. An identical bill in the House HB137 hasn't been heard yet in the Rules Committee.
After initially refusing to release records related to the wrongful conviction of Earl Washington and learning that Washington's attorney had filed a FOIA suit against it, the Department of Forensic Science reversed course and released the blood test results the attorney sought. The department still maintains it was not required to turn the records over under the newly enacted §2.2-3706.1, which deals with access to inactive criminal investigative files. The department says the section only applies to law enforcement agencies, and the department says it is not such an agency.
NOTE: There are currently two bills being offered that would undo §2.2-3706.1. HB 734 would accomplish that by deleting the definition of "ongoing" and then making release of all criminal investigative files discretionary, the way it used to be. HB 890 specifically says §2.2-3706.1 "is repealed."
Shortly after new members were sworn in and a new chair installed, the Pittsylvania County Board of Supervisors unexpectedly fired the county administrator. The meeting was broadcast on the county's Facebook page, but according to the Danville Register & Bee, the video of the meeting was pointing in the wrong direction.
Both Portsmouth and Middlesex County announced that they have received grants from the Library of Virginia to preserve and digitize historical records. Portsmouth will receive $46,000 to digitize various law order books from July 1866 to June 1973. Middlesex received more than $60,000 to preserve land records.
A Loudoun County circuit court heard arguments for two motions to remove two members of the county school board. Among the petitioners' complaints is an allegation that they participated in a closed Facebook group.
When the Frederick County School Board met to reorganize and select new leadership positions, one member spoke out against the eventual selection for chair saying, "Over the past year, you are the one board member that has missed the most meetings with your travel. And there are times where you don’t even pick up your packet."
Police investigated and eventually charged people in Chesapeakeand Page County who made comments alluding to violence against school boards. Two people were removed from a Chesapeake School Board meeting for shouting out when a board member called for a closed meeting. Threats were allegedly made on Instagram soon after. In Page County, a parent said she would be at school with "every single gun loaded and ready" if her children were required to wear masks in school. There was similar concern in the Senate when a citizen angry over the Education & Health Committee's defeat of a bill on treating COVID with Ivermectin, yelled, "You will pay for this one day."
The new chair of the Spotsylvania School Board largely ignored procedure and protocol when he announced that the school superintendent was "no longer with us" and continued by saying, "He is terminated this evening." Other members cried out that the board had to have a vote and, as seen in this 8-minute video of the incident, struggled to be granted time to comment on an eventual motion ending the superintendent's duties. The Free Lance-Star also reported that it appeared there was not a vote on a motion to go into the second of two closed sessions during the meeting.
Courthouse News Service survived the state court system's motion to dismiss the media outlet's lawsuit against the state over public access to the courts' online filing system. United States District Judge Henry Hudson noted that it was "well-settled that the press and public have a right of access to most, if not all, civil court records," and that the state's lawyer-only subscriber system may violate the First Amendment. The judge dismissed an equal protection claim, however, saying that CNS had not shown that the state's claimed interest in protecting confidential information was without merit.
The Loudoun County school district said it would not release what it called an "independent investigation" into the district's handling of two related sexual assaults at county schools. The report was being held "in its entirety," according to the division spokesperson, citing attorney-client privilege. The district also said some of the report would be withheld under exemptions for student and personnel records.
QUESTION: Can an investigation simultaneously be independent and part of an attorney-client relationship?
Already more than four hours, the Harrisonburg Planning Commission meeting came to a halt when it was discovered at around 11 p.m. that the phone line meant for residents to call in and comment was not working. The meeting had already experienced both audio and video problems, but when the comment line failed, the commission decided to postpone any action until they could hear from citizens.
The former investigator at the Office of the State Inspector General who was fired in relation to the OSIG investigation into Parole Board decisions in the spring of 2020 filed a federal lawsuit against OSIG, her boss there, former Secretary of Public Safety Brian Moran and Clark Mercer, former Governor Ralph Northam's chief of staff. The lawsuit claims the report the investigator originally prepared was "sanitized, reduced, redacted and then released, but only in redacted form."
Three parents in Loudoun County sued the school district there, challenging the restrictions on public comment and in-person attendance at a school board meeting in June 2021. The suit also claims subsequent violations of FOIA by allowing in only one member of the public at a time during the public comment period.
Albermarle County, which is still operating under an emergency declaration that allows its boards to meet via Zoom, talked about how they can continue to meet like that in the future. Supervisors called FOIA "antiquated" and insisted electronic meetings are needed so that board members can be efficient with their time. Another supervisor, referring to FOIA's statement of policy that government shouldn't operate in an atmosphere of secrecy, exclaimed, "Well, how in the hell has virtual somehow made it more secret?"
NOTE: VCOG worked on and is supporting two identical bills (HB444and SB214) that streamline the rules for electronic meetings and that will allow some meetings to be all-virtual if a public body so chooses. This is the first time local bodies will be able to meeting all-virtually under FOIA, but it's also not an unlimited or mandatory requirement. VCOG still believes that in-person meetings should be the default.
Not long after the General Assembly convened in-person for the first time since January 2020, individual legislators began participating remotely, presumably after quarantining for being in contact with or contracting COVID.
NOTE: Both House and Senate committees and subcommittees have been incorporating virtual testimony alongside the in-person comments given for and against bills. It slows things down a bit, and there are still a few glitches, but the effort has been much appreciated.
The Front Royal Town Council did not go into a closed session, despite urging by one of the members who nonetheless did not explain why he was calling for such a session or cite an exemption in FOIA allowing for it.
After a citizen shared messages she obtained from Charlottesville that showed dysfunction among members of the city's police civilian review board, one of the board members criticized the records release as compromising members' privacy. The citizen responded that the FOIA'ed information was public business.
The attorney for the man being called the “shopping cart killer” has asked a judge to issue a gag order to keep police from further calling him that or from referring to the man as a serial killer, or discussing details of the case without court approval.
In a letter to readers, the editor of The Breeze student newspaper at James Madison University thanked everyone who donated $2,267 to his GoFundMe campaign to put towards a $2,217 bill for records from the university. The paper is seeking records related to a story it is doing about sexual assault on campus.
