Sunshine Report for July 2022

July 1 = new laws

If it’s the 1st of July, that can only mean one thing: new laws in Virginia! 

VCOG has posted the full text of the Freedom of Information Act with the amendments made during the 2022 legislative session highlighted.

There are three main changes to note:

• §2.2-3704, adds procedures to the fee section of FOIA;
• §2.2-3708.3, this is a new section on all-virtual meetings in non-emergency times. This section doesn’t go into effect until Sept. 1; and
• §2.2-3706.1, rewrites the section on access to closed criminal investigative files.

The §2.2-3706.1 change is such a 180 from last year, which itself was a 180 from the year before that, that VCOG thought it might help to explain the new law within the context of the past two years. Watch the video here.
 

- M.R.

What we're talking about

If VCOG doesn’t file FOIA lawsuits or make FOIA requests for people, just what does it do all day? Ask Laura Mollo. She can tell you how VCOG provides guidance, clarification and a shoulder to lean on. We’re like a personal trainer for open government superheroes. Read about her fascinating story in our Substack newsletter.

While you’re there, check out what we had to say about a reporter having to access a public body’s board retreat through an underground parking lot because the doors to the building were locked.

Back in training

This month VCOG’s Megan Rhyne conducted training on FOIA to executive directors, FOIA officers and board members of statewide community services boards, courtesy of the Virginia Association of Community Services Boards.

She also spoke to the Class of 2022 cohort of the Virginia Women's Municipal Leadership Insitute about the public relations aspect of the FOIA records-requesting process.

She participated in the first meeting of a statewide workgroup on public notices.

She offered comment at a meeting of the state Commissioners for the Promotion of Uniformity of Legislation in the United States on a proposed model law for electronic meetings during emergency times. (Virginia already has laws in place and does need a model law.)

And, she also went to the dentist. Smile!
 

VCOG and NFOIC

As of July 1, VCOG is the new administrative home of the National FOI Coalition. The NFOIC is essentially a coalition of state open government coalitions and VCOG will manage the day-to-day operations, which include fostering networking among the state coalitions, sharing tips and strategies for building a strong coalition, and alerting each other to one-offs and trends developing in the world of access to government records and meetings.

The NFOIC recently sent a letter to the Uniform Law Commission studying redaction of certain personal information from public databases. The letter was signed by two dozen state open government coalitions -- including VCOG -- and urged the committee studying the issues to take seriously the public records implications of any proposal.
 

Open Government in the News

Under a settlement brokered by Andrew Bodoh, an attorney with Thomas H. Roberts & Associates, P.C., the City of Richmond will transfer police camera footage and other materials related to the June 1, 2020, use of tear gas on protesters and the Lee Monument to the Library of Virginia for public access.

Roanoke County charged The Roanoke Rambler more than $1,000 for video of the fatal encounter between police and 18-year-old Kionte Desean Spencer that blurred out the faces of the officers and redacted their names. The county claimed that the officers were victims and that photos of victims cannot be disclosed. When questioned about police being the victim of the shooting death of another person, the county's senior assistant county attorney wrote that it was "shockingly offensive" that a police officer could not be a "victim" of a crime.

Another state budget, another secretive process. If there's one thing the two major parties can agree on it's that they'd prefer to talk about the state's budget out of sight of the public, including members of the legislature who aren't on the money committees, and sometimes even including members of the legislature who are. This year, the latter was felt acutely by many legislators who were surprised to see the creation of a new felony for certain marijuana possession and a ban for skill games written into the budget without any prior vetting in the legislature or public input.

A circuit judge in Suffolk dismissed a recall petition filed against the chair of the school board that alleged, in part, violations of FOIA, silencing board and school division critics and threatening other school board members.

The City of Virginia Beach unanimously approved a zoning change for a huge new e-commerce fulfillment center without saying whether the change was requested by Amazon or anyone else, for that matter. Despite the lack of identification in the approval, the city's mayor said that the process for creating a development agreement using taxpayer dollars will be a public process.

The new chair of the Parole Board said that he and fellow board members have already taken steps to open up the board's processes and procedures in advance of the July 1 effective date of the law requiring board votes to be subject to FOIA. He noted that members of previous boards considered cases independently of each other but now, "we're having weekly meetings, actually discussing cases." 

The Supreme Court of Virginia heard arguments in the case brought by the Daily Press and The Virginian-Pilot over a judge's decision to close a hearing on the possible revocation of bond for a Newport News police officer charged with murder. The papers are also asking for transcripts of the hearing and the unsealing of other documents. The justices noted that the police officer's attorney had not pushed for a closed hearing, but the trial judge closed it anyway.

The Alexandria School Board held a retreat at which they discussed possible changes to their internal policies, which included new rules for when and how individual members could talk to the press. One member insisted that coordination of public statements was needed because the board needed to be a team. The doors to the building where the meeting was held were locked, forcing a reporter from ALXnow to gain access through an underground parking garage. The school superintendent announced his resignation for other reasons the next day.
Read Megan's thoughts on the meeting and the proposal

An exemption in Virginia's FOIA allows public bodies to hold discussions about contract negotiations in closed session. It's not a requirement, though, and one member of the Staunton City Council flipped the script in a mid-June meeting when he hammered out details of an agreement with the owner of a car dealership over the business' signs during the meeting.

Amid continued back and forth between the Norfolk Redevelopment and Housing Authority and its spin-off, Hampton Roads Ventures, over the allocation of $43 million in tax credits by HRV, the housing authority said that it would abide by HRV's insistence that the entity is not subject to FOIA. Norfolk's mayor said in a May meeting that HRV should be subject to FOIA.

Two groups representing public school principals in Virginia Beach penned a letter to the school board asking that the public comment period during meetings not be televised. Allowing the dissemination of the often-negative comments can create long-term effects, such as "hindering future employment opportunities" and "scarring the reputation of staff members with their school community."

It was a tumultuous month for the Portsmouth City Council. After firing their city manager in May, the council hired Tonya Chapman as her replacement in a 4-3 vote. Chapman resigned as Portsmouth's police chief in 2019 and has no prior experience as a city manager. The dissenting votes on the motion complained of a lack of process, saying the two-member personnel committee orchestrated the move without input from the council as a whole. The discussions grew heated, with the mayor, Shannon Glover, who voted on the losing side, attempting to have a member on the other side, Mark Whitaker, removed from the meeting. At a meeting the next week, member Lisa Lucas-Burke (on the losing side) brought up two allegations of misconduct against the vice mayor, De'Andre Barnes. A week after that, a local magistrate rejected Glover's attempt to seek criminal charges against Whitaker and Barnes. Glover then filed a complaint with the attorney general's office. The AG would not release a copy of the complaint. At the close of the month, council members again fought bitterly over a proposal to insert a severance clause into Chapman's contract worth $200,000.

Without discussion or comment, the Front Royal Town Council unanimously approved a payment of $150,000 in legal fees to the Virginia Risk Sharing Association, the town's insurer. The finance director said that refused to discuss any details, while also saying that the VRSA "does not represent the Town in an active case." The word "active" proved the linchpin when two weeks later a federal court dismissed the sexual harassment lawsuit filed by a town clerk against a town council member after the parties reached a deal for an undisclosed amount.

As he resigned from the Nottoway County School Board, Clive Pettis said recent complaints by a board member that FOIA requests were exhausting staff's time could be alleviated, "If you did the right thing" and just hand them the records instead of charging "out-of-this-world fees." He added, "But when you have something to hide, you tell 'em that it's gonna be a thousand dollars to get it." He also questioned whether the superintendent's contract was modified without board approval.

Former Charlottesville Police Chief RaShall Brackney filed a $10 million lawsuit against the city in relation to her September 2021 firing. Among other allegations, Brackney's suit claims city officials doctored records and fabricated documents to turn over in response to FOIA requests.

Virginia State Police concluded that there was no evidence to suggest that zoning files and financial records for the Town of Mineral were destroyed or taken. Instead, it was more likely the records went missing because of a "lack of historical organization."

Elkton's budget for the next fiscal year included a new paid position as the town's FOIA officer. The town claims the former mayor has inundated the town with FOIA requests. The ex-mayor countered that it was "almost impossible" to get information from the town. The town is also arguing over the decision to move pool tables to a different spot in the Elton Area Community Center after allegations of misconduct and sexual harassment by some of the regular players and a town council member, but the council hasn't been able to muster a quorum to discuss the issue or to hire a new town manager.

Washington Town Council on Monday unanimously approved a resolution prohibiting town staff from communicating with residents or businesses about legal matters, following a letter about an unofficial stop sign to The Inn at Little Washington by the town's attorney that the business’ attorney deemed threatening. The town attorney wrote the letter after the town received complaints from three residents that the sign was being ignored. The town would not reveal the names of the complainants, even though a council member, who also happens to be the Inn's chef-proprietor insisted that they be disclosed.

Virginia State Police launched the state's first iteration of a database of unsolved murders, including 39 cold cases. The database includes short descriptions of the cases and provides a way to share cases on social media or submit tips. More cases are expected to be added in the future.

The Manassas City School Board traveled 85 miles to the Virginia School Board Association headquarters in Charlottesville to hold its annual board retreat. Though the meeting was to be open to the public, the online agenda provided little detail about what the board would discuss.

Despite the fact that videos taken by onlookers of a violent interaction between a motorist and four Newport News police officers were widely circulated, the police chief said he would not yet release the officers' body camera footage.

The Page County Sheriff's office asked the county administrator to remove GPS tracking capabilities from the county's new radio system. The sheriff said if tracking were enabled "sensitive material" could be leaked prior to raids or undercover operations. The sheriff told a county supervisor that such a leak had occurred but would not say where or how.

On a divided vote, the Martinsville City Council refused to ask an outside attorney to review the employment contract of the city attorney. One block of councilors said it was a personnel matter, while the other block said it was a fiduciary one. The vice mayor described the request as a "vicious attack on the person."

The Loudoun County Board of Supervisors considered a proposal to reduce the time allotted to non-English speakers during the public comment period from five minutes to two minutes, as native English speakers have. The extra time for non-English speakers was deemed necessary to interpreters would have time to translate the comments.