Sunshine Report for May 2023

VCOG NEWSLETTER:
the month that was
april '23

April may be the month of spring break -- vacations, Passover, Easter, day trips -- but there was no break in the news involving the public's access to government records and meetings. I returned from a week's vacation in Texas Hill Country (family wedding) to find plenty to keep me occupied: court rulings, meetings without notice, copious use of the attorney-client and working papers exemptions, articles made possible by records obtained through FOIA, and fights over social media. It was like I never left!

Virginia Supreme Court says citizens must be able to sit in the same room where the public meeting is happening

In a unanimous decision issued April 27, the Virginia Supreme Court ruled that FOIA gives the public the right to physically attend meetings of public bodies in the same room where the meeting is being held. The decision affirmed the lower court's ruling in favor of Deborah Wahlstrom, represented by attorney Kevin Martingayle of Virginia Beach, who was told she had to watch the Suffolk School Board's retreat from another room through a video feed. When Wahlstrom refused to leave, a police officer was summoned to escort her not only out of the room, or the building, but off of the entire property.

The school board characterized Wahlstrom as "an enemy of the division," but also said COVID-19 concerns justified keeping the public out of the meeting room. The Supreme Court disagreed with both, noting the lower court's statement that the division's actions were "shameful" and that Wahlstrom was the only person there to watch and could easily sit six feet away from everyone. Besides, the court noted, the meeting notice said nothing about COVID precautions and board meetings and staff were frequently seen ignoring protocols.

In oral arguments, the school board's attorney, Wendell Waller, indicated that if public bodies were required to provide seating for anyone who wanted to attend in person, then they'd have to rent out huge spaces to accommodate everyone who might want to weigh in on an important issue. The Supreme Court clarified: "A public body is not required to abandon its traditional meeting place and rent an arena if a topic is likely to generate larger than normal public interest; rather it must provide the 'normal' in-person access and take steps to allow members of the public who cannot be accommodated in the meeting room access by other means. Conversely, a public body may not select, design, or arrange a meeting room in a manner that artificially limits or removes the ability of the public to attend in person."

The court also confirmed that an injunction can be granted under FOIA without a finding of willful and knowing conduct and without the requester having to meet the same standards necessary for injunctions pursued through the rules of civil procedure.

The court let stand the lower court's ruling requiring the school division to pay attorney fees of nearly $20,000.

Read the opinion

Circling the wagons on Irvo Otieno info

Citing the FOIA revision that went into effect in July 2022 that essentially gutted provisions aimed at requiring some records in closed criminal investigative files to be released, Henrico continued to refuse access to any records related to the death of Irvo Otieno at Central State Hospital. Meanwhile, the Department of Behavioral Health and Developmental Services denied requests to turn over 94 pages of related records, citing exemptions for correspondence with the governor [NOTE: the exemption applies to the governor's office, not to the DBHDS] and the exemption for attorney advice. Next, the Office of the Chief Medical Examiner would not release results of the autopsy and toxicology reports to Otieno's family, defense attorneys or the Dinwiddie County Circuit Court Clerk's office, saying, "We are not mandated to provide a copy of our reports to the Clerk's Office." All of these stand in contrast to the release of video of Otieno's treatment and death by the Dinwiddie Commonwealth's Attorney.

Mobile Library of Virginia

The Library of Virginia hit the road last month in a custom-built vehicle outfitted with staff and resources to enhance awareness of the library's collections during its yearlong 200th anniversary celebration. The library also says it hopes to strengthen ties to local organizations and capture stories and histories from community members.

Read more

open government
in the news

 

Citizens of Warrenton wondered why Amazon thought it could cut down trees on the site of its proposed Amazon Web Services development without first obtaining a permit. The answer became clear from 111 pages of email correspondence a citizen obtained through FOIA showing that the town's development director told Amazon that they could. Warrenton inspectors did not inspect the site until two weeks into the tree-clearing.

After the collapse of the Enrichmond Foundation, which served as an umbrella organization for dozens of small nonprofit groups in the Richmond area, many of those smaller entities were left scrambling to make up budget shortfalls and to wonder what went wrong. Some banded together to form the Enrichmond Accountability Project and obtained more than 200 pages of financial documents and other records about Enrichmond through FOIA. The project members hope to make redacted versions of those records available to the public.

The Gloucester County sheriff said he will show body camera video of a March incident where officers shot an allegedly armed suspect, but "I will not be allowing video or photographs."

The interim town manager of Purcellville abruptly quit during a town council meeting after a council member made a motion to lower the cost of living raise for staff members from 5% to 2%. The motion was made outside the established budget deliberations, the manager said. In the same meeting, the mayor criticized the police chief because she did not take seriously his request to eject a citizen from the meeting. The citizen had shouted out disapproval of the cost of living decrease but walked out of the meeting on his own. Two weeks later, the town refused to disclose how many people have applied for the permanent town manager post.

Lynchburg announced that it would hold interviews of candidates to be appointed to the city's school board during open meetings. The city council did not take a vote on the vice mayor's request, but instead, according to The News & Advance, the body "moved forward with consensus" since no one opposed it.

The Virginia Department of Elections said "human error" led to the inadvertent disclosure of the state's registered voter list to a third party. That party, who originally asked for vote history data for a specific district, notified the department of the disclosure and destroyed the data.

The Suffolk City Council held a two-day retreat in early April with what appeared to be inadequate notice to the public. The council adopted a motion at its March 15 meeting, and, according to the city's mayor, who called VCOG, notice was posted on the city website's "message board," he was unaware whether notice had been posted in the other places designated by FOIA or sent to those people who have signed up to received email notices of meetings. No minutes of the public meeting appear on the city's website.

VPM analyzed inspection records obtained through FOIA by the Richmond Fire Department to better understand what violations were cited at various Richmond public schools from 2015-2022. Fox Elementary School was destroyed by fire in February 2022. It had been cited for multiple deficiencies in prior years.

Three years after the COVID emergency declaration, and long after most Virginia localities have returned all of its public bodies to in-person meetings, Charlottesville unanimously voted to join them. The city council has been meeting in person for months, but some boards and commissions were still meeting virtually. The city acknowledged the September 2022 change to FOIA that allows so-called advisory boards to meet electronically in certain circumstances but prohibits local governing bodies, school boards, planning commissions, architectural review boards and zoning appeals boards from doing so.

A Chesterfield police officer has filed a defamation lawsuit against a woman who used TikTok and Twitter to accuse him of stalking her. The woman said he was retaliating against her for criticizing the way the police department handled a report she made of suspected child abuse. The woman later apologized when she realized she misidentified the officer. The officer is seeking $50,000 in damages.

The Office of State Inspector General released a letter as part of a 23-page report on its investigation into the Virginia State Police's hiring of Austin Lee Edwards, the so-called Catfish Cop accused of killing three people in California. WRIC noted that the OSIG disclosure contained only information from VSP and none of OSIG's analysis or the result of OSIG's external investigation.

A Fairfax County judge ruled that psychological reports from a sanity evaluation that have been admitted into evidence in an uncontested plea of not guilty by reason of insanity are open to public inspection as court records.

After taking the full five days, plus a seven-working-day extension, to respond to a FOIA request for emails about the governor's involvement in the primary-versus-convention dispute in a local Republican primary, the Youngkin administration identified just six pages of records and chose to withhold them all, citing the working papers exemption at the "attorney/client privilege."

A Frederick County woman filed a federal lawsuit against Del. Bill Wiley and his legislative aide, claiming they violated her First Amendment rights by hiding comments she made on the delegate's campaign Facebook page. Hidden comments can be seen by the person who wrote them, but not by others.

Richmond police announced it would begin releasing body camera and surveillance footage that depicts any fatal police shootings within two weeks of the incident. The department did say it might take longer than that if circumstances warranted it.

Isle of Wight's planning commission proposed changing its bylaws to mirror the board of supervisors' governing documents by adding a provision to prohibit citizen remarks during a regular meeting's public comment period on matters that are subject to a public hearing. The county attorney suggested the change after two speakers used the public comment period at a March meeting to speak in favor of a proposed solar farm that had been the subject of a public hearing in February.

The Roanoke City Council shelved a proposed resolution on abortion access last year, but the city attorney would not release a copy of it, saying it was protected by the FOIA exemption for attorney advice.

threads

Something in between

The alternative to a part-time legislature isn't a full-time one. It's something in between.
Just look at other states.

keep reading

VCOG Blog: Retreating

Why a reporter's interview with a city mayor tingled my Spidey sense over meeting notice and public awareness.

Read it now

LA Times: Don't phone it in

Too many public officials yearn for the not-too-distant days when they didn't have to attend meetings in public.

Read it now

Washington Examiner: AI to the rescue?

Recent advancements in artificial intelligence are proving effective in managing requests for public records.

Read it now

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