Sunshine Report for March 2020
Virginia Coalition for Open Government
The Sunshine Report
March 2020
VCOG's Annual Conference
VCOG's 2020 annual conference is our most interactive and informative one to date. We will feature panels and speakers on:- FOIA training
- FOIA & FERPA
- Life of a FOIA officer
- State government email
- The 2020 General Assembly in review
- Board dynamics
And thank you to our generous sponsors:
- AARP of Virginia
- Becky Bowers-Lanier, Richmond
- Andrew Bodoh, Richmond
- Roger Christman, Chester
- Paul Fletcher, Richmond
- Dick Hammerstrom, Fredericksburg
- Joshua Heslinga, Hanover
- Wat Hopkins, Blacksburg
- Lawrence McConnell, Roanoke
- Megan Rhyne, Williamsburg
- Richmond Times-Dispatch
- Sage Information Services
- WHRO
- WTKR/WGNT
- WTVR
- WWBT
2020 legislative update
The 2020 General Assembly is on track to adjourn this weekend, after considering thousands of bills and resolutions, running committee and floor sessions well into the night -- sometimes past midnight -- and being reprimanded by some longer-serving lawmakers for bringing bills to the money committees without first working out the underlying policy.For VCOG, it was a relatively quiet session. There were lots of bills that impact FOIA in a sideways or minimal way (adding an agency to an existing exemption, for example), and several that improve FOIA's procedures and reach. But there were very few bills that would have altered FOIA in a way VCOG did not think was best.
Several bills, when combined, will provide some measure of accountability of university foundations. They will cut down on the anonymity of donors when those donors condition their gifts on the university taking some particular action, and they will require the foundations to share a bit more about how they spend their money internally.
Some bills seek to bolster the news media's ability to gather news and protect their sources: a limited journalist's shield law and a bill directed at thwarting so-called SLAPP suits.
Of course, VCOG was disappointed that the House Courts of Justice Committee defeated the bill to require the Supreme Court's Office of Executive Secretary to follow FOIA's procedures. The bill died on an 11-11 tie, after a lengthy debate about separation of powers and about how -- in the eyes of some -- the records the OES has are so different from those held by any other government agency. The chair of the committee urged the OES to listen to what was said during the committee. Stay tuned for that.
You can review all of these bills on VCOG's annual bill chart. House bills that passed are listed first, then Senate bills, followed by House and Senate bills that did not advance for any number or reasons.
FOIA in the courts
Lawsuits on various aspects of public access to government records and meetings found themselves at various stages of the litigation process during February.The Virginian-Pilot announced it was suing the Department of Corrections over what the paper deems as inappropriate responses to its FOIA requests when it was reporting on the practice of strip-searching visitors -- some as young as 8 years old -- to DOC prisons. Despite a FOIA request that listed seven items, the DOC said that it couldn't respond because the request did not identify records "with reasonable specificity," as FOIA requires.
The Washington Post and other media outlets meanwhile filed a motion in Fauquier County seeking to pry open the courtroom for proceedings against a 17-year-old local youth accused of killing his mother and brother. The judge barred the press and public from the proceeding "to protect the privacy of the juvenile charged herein," and to protect potential jurors.
A judge in Rappahannock County has taken a FOIA case against the board of supervisor "under advisement." The case, called Bragg I, alleges violations of FOIA's meeting rules and has been ongoing since 2016. The case has already gone to the Supreme Court, too, on a procedural issues that the plaintiff won.
The Courthouse News Service won a case against Norfolk and Prince William County over the localities' practice of forcing the publication to wait for court clerks to docket and scan complaints before making them available on public computer terminals. Prior to 2018, the judge noted, reporters for Courthouse News were able to review new complaints before data entry and scanning. The judge did not issue an injunction, however, recognizing the localities had been trying to address the press' First Amendment concerns since the lawsuit was filed.
Read the opinion on VCOG's Google Drive
Finally, plaintiffs in the Virginia Supreme Court case against Smyth County were guardedly optimistic that oral arguments would finally be heard in the case that has been pending at the Supreme Court for more than a year. The delay has been caused by Smyth County's lawyer, Del. Jeffrey Campbell, who has been granted extensions based on his work at the General Assembly.
Open government in the news
The month started and ended with investigations into the removal of student newspapers from racks around college campuses. At the beginning of February the editor of Radford's student newspaper, The Tartan, wrote a letter to the university president faulting the university for not retaining the surveillance videos that could have shown newspapers being removed in September and requested by the paper under FOIA. At the end of the month, the editor of the VCU student paper said she and others saw members of the school's Student Government Assembly take papers from racks, allegedly because of a story critical of SGA management.
The Lynchburg police chief released and/or played video from officer body-worn cameras when meeting with the public and press to detail investigations into three officer-involved shoots, two of which were found to be justified. The third was said to violate department policies.
A Midlothian attorney filed a FOIA lawsuit against the Town of South Hill over allegations that the town did not adequately respond to the three requests the lawyer submitted that sought records related to the employment of the former finance director, the job description of the town manager, citizen complaints about the town manager, the town manager's cell phone records, any EEOC complaints made against the manager, and the manager's employment contracts. He did receive some documents, but 27 pages worth were withheld.
The chairman of the state panel created to investigate inmate deaths at the Hampton Roads Regional Jail penned a letter to the jail superintendent calling the jail's response to the panel's requests for investigative records "wholly inadequate."
A civil rights lawsuit against a Spotsylvania County deputy sheriff may proceed, according to a federal district court ruling. In an exchange between the deputy and an officer who had just pulled over a woman for passing a stopped school bus, the deputy offered to buy the officer lunch if he would ticket the woman because she had made critical comments on Facebook about the deputy six years earlier. The recording was captured by the officer's body-worn camera.
A Portsmouth judge barred the public -- including a reporter -- from the courtroom where a preliminary hearing in the case of a Portsmouth police officer charged with raping a 17-year-old girl was being heard.
A federal judge threw out the libel lawsuit filed by Lt. Gov. Justin Fairfax against CBS over accusations made by women who said Fairfax sexually assaulted them. The judge said Fairfax did not meet the "actual malice" standard, but the judge also said Fairfax's lawsuit was not an abuse of the legal process or an attempt to silence his accusers. Fairfax has said he will appeal.
A member of the Front Royal town council criticized the town manager for criticizing citizens who had spoken during a public comment period about the proposed budget. After asking the commenters to leave the room, the manager stated, "It's my turn now to speak." He then faulted "a number of inaccuracies spoken," and speculated that there was a "silent majority" who was "too scared to speak." After the manager singled out a persistent town critic, the council member reminded the manager that citizens were told not to direct criticism at the individuals and the same should apply to the manager.
A Chesterfield citizen fired back at the member of the school board who, when stepping down from the board, criticized her for filing nearly 800 FOIA requests over four years and that the requests were "frivolous." Using public records, the citizen pointed out that the number was more like 243 over a 3-year span. A school spokesman excused the school board member's comments by saying the shading of a chart of requests made the information difficult to read.
The Rockingham County Commonwealth's Attorney brought charges against the former Dayton town manager on two counts of computer trespassing. The charges allege that after he stepped down as manager, but while he was a candidate for town mayor, the manager logged into town email accounts searching for records that would show the police department was told to tamp down on issuing traffic tickets during the tourist season.
A Berryville Town Council adopted a policy for responding to complaints and requests for assistance from the public. "We want to be sure we provide the best service we can to citizens," she said, but no one council member can know everything about everything. Under the new policy, a council member who receives a complaint or request will notify the town manager and the town clerk. The manager will acknowledge receiving it, investigate it and take any action deemed appropriate, while also notifying the council and the person who made the complaint.
Also in Berryville, the mayor issued an apology to the town manager/treasurer over comments the mayor made while seeking copies of invoices between the town and the town recorder's (similar to a vice mayor) personal business, an auto parts store. A third council member considered the mayor's comment that she was surprised the manager was reviewing the invoices before turning them over was defamatory because it insinuated that manager might be trying to alter the records. A Virginia State Police investigation into the recorder did not lead to any charges.
After voting to a separation agreement between the town and its attorney, the Leesburg Town Council continued to argue over a letter to the editor three council members went public with objecting to the likely firing of the attorney. One of those critical of the letter nonetheless added "we're going into more closed sessions within the last year than I think in all my 12 years combined on town council."
The Southern Environmental Law Center has filed a FOIA lawsuit in a Charlottesville federal district court that alleges the U.S. Council on Environmental Quality has not "reasonably promptly" responded to the center's requests.
The Norfolk school system announced that the interim superintendent would become the permanent superintendent. A copy of her contract was posted to the district's website, as was the addition of the announcement to the agenda, just before the meeting was set to begin. The move was reminiscent of the way the Prince George County schools announced at the superintendent's retirement that the assistant superintendent would be taking over the job.
After the Richmond City Council voted down the mayor's proposed $1.5 billion development project for the Coliseum area, the Richmond Times-Dispatch obtained a copy of letter from a California company seeking to develop the same area for $15 million.
The trial against former director of the News/Williamsburg International Airport got underway in late February. He faces various charges related to the airport authority's guarantee of a loan to the failing People Express airline. Early witnesses testified about closed meetings and vaguely worded resolutions, and about the former city manager urging others not to reveal anything to reporters.
Office supply list on Smile.Amazon
You know what's as valuable as your membership dues and financial gifts? Office supplies! We've created a list of everyday office supplies (and a few wish-list items) on Amazon Smile. Next time you're shopping on Smile.Amazon.com, find VCOG's "charity list" and keep us rolling in paper and ink (and stamps, and file folders, and...)
Click here to select VCOG as your AmazonSmile charity.
Media Awards: never too early to plan
VCOG was thrilled to recognize the winners and runners up for our inaugural FOI Media Awards Luncheon on Nov. 18.
It's never too early to start thinking about your nominations for 2020! We will again recognize great FOIA-based stories in the categories of daily newspaper, non-daily newspaper, broadcast and online.
Nominations will open in the late spring and will run through the end of July.
VCOG is a 501(c)(3) nonprofit. TIN 54-1810687 540-353-8264 • vcog@opengovva.org
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