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2017-18 Freedom of Information Act
The full text of the current version of FOIA can be found on VCOG’s website.
(Note: some exemption numbering is subject to correction)
Fresh from VCOG’s Blogs
And check out VCOG’s print newsletter, using AnyFlip, for June 2017. It’s like having the hard copy right in your hand.
Bad month for public access in the courts
FOIA took it on the chin in FOIA with two rulings that hamper public access to public records.
The Virginia Supreme Court ruled on June 29 that the Office of Executive Secretary of the Supreme Court of Virginia (OES) did not have to turn over a database of court case information to the Daily Press because the OES was not the data’s custodian.
Instead, the court ruled, requests for the data should be made to the 118 individual clerks of court, who are tasked by statute to keep court case files. Access to court case files is not covered by FOIA, it is covered by Title 17.2, which allows a potentially pricey per page copying fee and does not have FOIA’s guarantees for time frames for responding or the data format of the requester’s choice.
Section 2.2-3703(A)(5) says FOIA does not apply to the “records required by law to be maintained by the clerks,” but that “other records maintained by the clerks . . . shall be public records and subject to” FOIA. The court stopped short of ruling on the clerks’ assertion that FOIA did not apply to them at all.
The court also did not interpret the term “custodian” as it is used in FOIA generally, instead saying that section 17.1-242 “plainly establishes the clerks as the custodians of the court records.”
The Daily Press has indicated its next stop will be at the General Assembly to clarify that the public should have access to the data in its aggregate form, as held by the OES.
The Virginia Coalition for Open Government joined the Virginia Press Association, BH Media Group, which owns the Richmond Times-Dispatch, Gannett Corporation, Landmark media Enterprises and the Reporters Committee for Freedom of the Press in filing a friend of the court brief supporting the Daily Press.
 The other ruling came from Henrico County Circuit Court Judge James S. Yoffy, who said that Sen. Siobhan Dunnavant was not a “public body” under FOIA who had to respond to a FOIA request. Instead, the clerk of the Senate should respond.
In a blog piece, VCOG argued the case upended 50 years of generally accepted practice that allows FOIA requests of individuals, including members of the General Assembly. In fact, General Assembly members have an exemption that even extends to their own staff.
A Richmond Times-Dispatch article delved into the filings and arguments Dunnavant’s lawyers made, which included an assertion that Facebook records about the senator’s activities as a senator were not public records because no taxpayer money was used in funding the Facebook account, and that FOIA officers — added in 2016 as a contact point for the public — are now the only ones who can respond to FOIA requests. Del. Jim LeMunyon, who sponsored the FOIA officer legislation, flatly refuted that interpretation.
Brian Davison, the citizen whose request for Dunnavant’s Facebook posts led to the litigation, has asked the court to reconsider its ruling..
Open government in the news
The Daily Press wrote several articles in June stemming from a state audit of the Peninsula Airport Commission. The audit was prompted by the newspaper’s findings that the commission guaranteed a loan to a struggling airline with taxpayer funds. The paper followed up with stories about document shredding, unchecked spending and contracts approved without commission board approval, among others. Meanwhile, Transportation Secretary Aubrey Layne said commission officials still need to meet with him in an open meeting to discuss guidelines for turning back on state funding that was cut off after the paper’s initial articles appeared.
After catching some heat for dismissing its once-celebrated superintendent without public warning or explanation, the Richmond School Board unanimously chose his replacement at a 10-hour long public meeting (five hours of which were in closed session) that ended at 3 a.m.
Prince William County also met into the wee hours of the morning before taking a vote to allow construction of a mosque to proceed. The meeting featured 170 speakers and ended after 3 a.m.
The Prince William County School Board rejected the superintendent’s proposal to place limits on how board members can request information from school staff. The move came in response to the board chair’s assertion that he should have unfettered access to his predecessor’s email. The proposal would have barred requests that required more than 30 minutes of staff time or cost more than $50.
A ruling from the Virginia Supreme Court is expected in the next few weeks on the issue of whether financial information auto title-lenders provide to the State Corporation Commission can be disclosed. A lower court ruled the records could be shielded as “personal financial information” of the companies.
Gloucester County’s administrator walked back a proposal to record all conversations between staff and members of the public. Instead, only some calls for internal investigations in the human resources office and to the county’s main line will be recorded for quality assurance. Meetings will also be recorded.
The Ruth E. Lloyd Information Center, or RELIC, at the Bull Run Regional Library has online editions of newspapers that served Prince William County dating back to 1796.
The Portsmouth Housing Authority refused to release records to the Virginian-Pilot it provided last year to the U.S. Department of Housing and Urban Development as part of an investigation. The authority said HUD didn’t want it to release the records, which included basic administrative records like financial statements and organizational charts, while the investigation was ongoing.
A FOIA request made by The Roanoke Times revealed letters between Virginia’s secretary of natural resources and Dominion Energy telling the company that decisions related to the Atlantic Coast Pipeline would not be based “on requests or suggestions from an applicant.”
The Virginia Supreme Court will take up a case that challenges police practice of keeping data from automated license plate readers. The ACLU is pursuing the case against Fairfax County, which keeps the data for one year to help find missing people and to solve other crimes. The ACLU says keeping the data for that long presents privacy concerns.
A member of the Halifax County School Board said a decision to hold a board retreat at Lynchburg College — an hour and a half’s drive away — didn’t have anything to do with transparency because the board was “not going to pass anything at that time.” Some board members said they would not attend the retreat, noting that there were “plenty of places here where we could meet.”
McAuliffe & records
Governor Terry McAuliffe reached a civil settlement with Loudoun County Commonwealth’s Attorney Jim Plowman over access to the complete list of 206,000 convicted felons whose voting rights would have been restored under an executive order McAuliffe signed in April 2016 that was later invalidated. When originally asked for the records by Plowman and various media outlets, McAuliffe claimed they were exempt as his working papers.
On the other hand, McAuliffe said in late June that he had “no intention” of cooperating with a request from the Trump administration seeking detailed voter information as part of a panel investigation into nationwide voter fraud. Access to voter data in Virginia is governed by the Election Code, not FOIA.
SAVE THE DATE
VCOG’s next annual conference will be Nov. 16 at the Richmond Times-Dispatch building. Many thanks to the RTD’s publisher, Tom Silvestri, and managing editor, Paige Mudd, for hosting!
At the FOIA Council
The FOIA Council moved offices in June as part of the destruction of the old General Assembly Building to make way for a new home for the legislature.
The address at the council's temporary quarters in the Pocahontas Building is 900 East Main St., 10th Floor, Richmond, Virginia 23219. Additionally, the council no longer has a local Richmond number, but the toll-free number remains the same: 866-448-4100.
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