Sunshine Report for March 2022

The working papers doesn't work here

Not surprisingly, right after Governor Glenn Youngkin announced the opening of a tip line for parents to call in to complain about the teaching of "divisive concepts" at their children's schools, Virginia's press began filing FOIA requests to see what was being said. It was not unlike when reporters asked for the tips sent to the former governor about businesses that weren't complying with the social distancing or masking rules imposed by the 2020 COVID emergency orders. Only this time, the responses were not turned over. Instead, the governor's office issued denials, citing the discretionary exemption in FOIA for working papers and correspondence. It was not an unexpected assertion, but it was still disappointing, and VCOG disagreed with the use of the exemption for three reasons:

1. The exemption is clearly designed to protect the deliberative process. The exemption -- even the part about correspondence -- was never meant as a catch-all reason to deny access. If it were, why bother with an exemption at all? Why not exempt the governor entirely from FOIA if everything marked correspondence can be withheld?
2. The working papers/correspondence exemption can be used by the "Office of the Governor," and that term is actually defined. It includes the governor's chief of staff, counsel, director of policy, cabinet secretaries and a few others, but it does not include everyone in the office, nor responses that are likely being accessed in-house by staff members not covered by the definition
3. FOIA's policy statement says to interpret exemptions narrowly. Saying the exemption covers a public-facing email address that receives public complaints that -- most likely -- will be used well beyond the governor's "personal or deliberative use," is an overly broad interpretation of the exemption, not a narrow reading of it.

And, as always, the exemption is discretionary. There is no reason the governor cannot release the messages -- redacted, even, if he wants, to exclude student/teacher/parent names -- and many reasons to release them. It's a choice, and unfortunately, the choice has been made to make this already controversial tip line into something even more so.

Every governor has used and misused the working papers exemption. They do so at their own peril because reporters (and citizens of all walks of life) don't like being told they can't see something. That usually makes them more interested in finding out something, not less.

I've seen follow-up requests for FOIA logs, correspondence between people in other agencies, and other documents all being withheld under the governor's working papers exemption. 

Teachers, parents, administrators, lawmakers, students, the general public. Everyone has an interest in knowing what's been said and what the governor plans to do with the information he's collected.

This isn't going away. 

- M.R.

VCOG opposes rolling back transparency gains made in 2021

Last year's legislature passed a law that for the first time ever said police and prosecutors had to open up the case files of investigations that were no longer active or ongoing to determine what had to be released, what could be released, and what could not be released. It was a Frankenstein of a bill last year, but it included several balancing elements that were requested primarily by prosecutors.

Now, those prosecutors are front and center of the effort to un-do most of last year's laws.

The bill -- HB 734 -- would say that access to closed files would be granted only to victims (and their immediate family, if the victim was deceased) and to lawyers making claims of actual innocence (but even they would be given only temporary access -- they'd be required to give the records back to prosecutors!). Anyone else asking for records would be back in the same position they were at before last year's law. That is, it would be in the discretion of the record custodian and our decades-worth of experience tells us that means, in essence, no access.

The bill also creates a mechanism for victims/families to petition a court to prevent any discretionary release.

The driving issue is protection of victims. Protecting them from the bad people (defined in testimony as the news media and murder groupies) from using records -- photos in particular -- to further victimize the families.

It's hard to oppose a bill when you ache with sympathy for the families of loved ones so brutally taken from them. Their's is an unfathomable pain. But it is nonetheless important to remember that much of what they are bothered by or are fearful of is already in the law, most notably: photos of victims are already prohibited from release.

I wrote out some of my responses to the testimony given last week in a blog post here.

But by focusing solely on the tragic cases of two families, the proponents of the bill ignore the many ordinary, non-sensational cases the bill would deny access to, and the many ordinary, non-sensational case files citizens, advocates, writers, victims, defendants and others have obtained without issue under the new access granted them last year.

The Senate General Laws Committee is slated to pick the bill back up again tomorrow, March 2.
 

- M.R.

General Assembly updates

With just under two weeks to go in the 2022 legislative session, most of the bills VCOG has been tracking have mostly been decided. Either they've been defeated or withdrawn, or they are clearly on the road to passage.

We started out tracking approximately 70 bills. At crossover, even with the few bills that were added to the list and became relevant because of amendments offered along the way, that number was down by half. Not only has thatnumber been cut down further by the bills that were victims of divided government (that is, bills that were passed in one chamber on a party-line vote and then defeated in the other chamber by a party-line vote in the other direction), but nearly half of the remaining bills are duplicates -- one House version and one Senate version.

You can read my updates on a lot of the FOIA bills. This piece details the first slew of bills that went through the House General Laws subcommittee on FOIA, plus some others.  And this one follows up on the second wave to hit that House subcommittee.
 

- M.R

Open Government in the News

In an ongoing dispute over a landfill that is producing noxious odors, Bristol, Tennessee, submitted a FOIA request to Bristol, Virginia, that Tennessee complained had gone unanswered for weeks. Virginia countered that the request was so large — including email, reports, minutes and budgets going back five years — that it required the hiring of outside counsel to help.

According to a master list maintained by the Virginia Department of Criminal Justice Services, 146 law enforcement officers have been decertified as of mid-January. Forty-six officers have been added to the list since July, when many changes to the decertification laws went into effect, and over half the total have been added in just the past two years. The Hanover NAACP said they wanted to review the cases of one officer decertified in December, noting that its organization had received at least 30 complaints about the officer’s conduct.
Note: Interested in reviewing the past cases of officers on the decertified list? You won't be able to if HB 734 passes.

Two Pound Town Council members acted unlawfully when they met and appointed an interim council member in September, a Wise County Circuit Court judge ruled. The suit was prompted when two of the council’s four members met to appoint a fifth member, but the judge agreed that the two members did not constitute a quorum of the council authorized to vote on such a matter.

Receipts obtained by The Daily Progress indicated Charlottesville has spent thousands of dollars on infrastructure to support hybrid in-person and online public meetings but has yet to hold one. The city school board has begun meeting in person again, but the city council -- still operating under its COVID emergency ordinance -- continues to meet exclusively online.

The chair of the Loudoun County School Board called an immediate recess after more than a dozen students marched to the front of the meeting room to deliver nine baskets full of affidavits documenting what the audience said was maladministration and unconstitutional mandates. Some audience members claimed that the board had been “served” with legal papers.

Citing the exemption for the governor’s working papers and correspondence, the Virginia Department of Emergency Management withheld 71 of 77 emails related to the shutdown of I-95 during a snowstorm in January.

According to the general registrar of Fairfax City, in the year after the 2020 election, her office was swamped with FOIA requests about the administration of elections, but that after the election of Glenn Youngkin in 2021, her office has now seen just one request.

The Charlottesville Citizens Review Board continued to grapple with its policies and procedures as it held a mock hearing. Board members want to hold closed-door hearings, but some city council members and members of the public have pushed back. Del. Sally Hudson carried a bill that was aimed at allowing those closed-door meetings, but she withdrew the bill early on in the session.

Newport News defended its unwritten policy of requiring anyone giving an invocation prior to a public meeting to hold a belief in a higher power. The city’s attorney wrote to the man who delivered the invocation at a July meeting, who describes himself as a "humanist,” and said that when the city council recently revisited its stance on invocations, “no more than one or two members favored changing those practices.”

The former head of Virginia Beach’s economic development department got a suspended jail sentence after admitting he embezzled nearly $80,000 during the 11 years he was employed. He will be required to repay the total amount, with over $32,000 of that coming from the unused leave time he banked with the city before he resigned during the investigation into his actions.

The Department of Corrections issued a press release criticizing recent press coverage by the Richmond Times-Dispatch. The DOC complained that news articles implied the department is “determined to reject all forms of oversight or authority.” Del. Patrick Hope, who sponsored legislation to implement more oversight, responded to the release with a quip and a poop emoji.

The Frederick County School Board is supporting efforts to make video recordings of their meetings available to the public. The meetings are streamed on YouTube, but they are not archived. A district official said the reason they hadn’t been is that all videos posted by public bodies must include closed captioning to meet federal accessibility standards.

The chair of the Montgomery County School Board walked out of a public meeting after verbally sparring with a parent over photos the parent said showed the chair in a crowd of people but not wearing a mask. Before leaving, the chair tried to gavel the parent out of order and asked a county deputy to escort her out of the meeting.

A parent and a teacher in Fluvanna County told school board members that people without children were not qualified to be on the school board.

Despite being tasked with making recommendations on approving or denying encroachments into environmental protection areas, the Prince William County Chesapeake Bay Preservation Area Review Board has not met since 2012 and all five of its seats are vacant.

Despite a ruling in Suffolk last year that its school board violated FOIA’s meeting provisions by forcing the public to watch a public meeting on a monitor in another room, instead of being in the same room as the board members, the Northumberland County school board insisted citizens watch a meeting on a TV set up in the building’s foyer.

Though Staunton City Council has been using the video conferencing software Zoom to stream its meetings for anyone who can't attend in person, the school board — which meets in the same space as the council — has only made its meetings available to the public through audio streaming. The school district says it is working to use Zoom and YouTube to livestream meetings in the future.

An iPad used by a Roanoke City Councilman being investigated for embezzling from the city's economic development authority was not wiped of data by the councilman but instead by police, according to the local Commonwealth's attorney.