Sunshine Report for November 2020

Fee for all

VCOG reviewed state statutes and materials posted to the Reporters Committee for Freedom of the Press' Open Government Guide to get a sense of how fees for public records requests are imposed. Here's what we found:

• 13 states do not permit any charges for labor (meaning, copy fees only)
• 3 states say no labor charges except in very specific circumstances (like commercial requests for big databases)
• 22 states allow for labor charges, but have some limits, like a rate cap, the first X-hour(s) free, the rate must be of the lowest capable employee, no charges for exclusion (exemption) review; a required fee schedule, etc.
• 3 are unclear (e.g., the statute was silent on labor and there weren't supporting sources like other statutes or court cases to indicate what the practice is)
• Virginia is one of 9states that permit labor charges for every step of the FOIA process, without any of the limits mentioned above, so long as they are the "actual cost" and "reasonable"

Virginia's practice is cemented by a Supreme Court case (ATI v. UVA) confirming that requesters can be charged for an attorney's time to review and decide whether to withhold the records.

VCOG has been talking with lawmakers and some First Amendment attorneys about how fee reform might be accomplished legislatively. Stay tuned....

The FOIA Council held two subcommittees in October, one on e-meetings and one on criminal investigative records. Both meetings were held electronically. The public view-feed for both of them showed only one speaker at a time (not the group), and neither meeting allowed for real-time public comments. Written comments were allowed and posted on the FOIA Council's website, but only two of the comments submitted for the e-meetings subcommittee were read out loud during the meeting.

You can find videos of the meetings on the subcommittees' website.

The e-meetings subcommittee, made up of four state and local government representatives and two media members, agreed to advance Del. Mark Levine's (D-Alexandria) HB 321 from the 2020 session to expand the reasons a public body member can call into a meeting to include providing care to a family member with a serious medical condition. The group also agreed to increase the number of times someone can call in for a "personal matter" from 2 to 10%, whichever is greater. The full council will consider the recommendations whenever it meets again. In the meantime, the subcommittee will continue to discuss how (and when) it can make more permanent changes to FOIA to address electronic meetings during an extended emergency.

The criminal investigative records subcommittee asked staff to draft a proposal, using the federal FOIA for guidance, to allow parts of inactive or completed criminal investigative files to be released under FOIA.

In October, VCOG's Megan Rhyne taught a three-class course at William & Mary's Osher Lifelong Learning Institute on tracking legislation at the Virginia General Assembly and using FOIA to hold state and local governments accountable. She will teach a similar class for the Osher program at the University of Richmond later this month. She'll also be participating in panels this November for the Virginia Bar Association, WHRO and other public media employees, and the Society of Professional Journalists.

Response deadlines during a long-term emergency

When the pandemic emergency shut-down was first implemented, localities scrambled to put in place new rules for meeting electronically. VCOG encouraged the public to be patient with their local and state government bodies as they tried to get things straight. The FOIA Council offered guidance until the attorney general's office could weigh in.

The FOIA Council's guidance included a reminder that when it came to responding to requests for records under FOIA, "there is no specific tolling provision for states of emergency, but it is a valid reason to invoke the seven working day extension." VCOG agreed with that sentiment, understanding that extensions may be necessary when records were in closed office buildings, but not when government employees had remote access to electronic records.

The AG's March 20 opinion included a finding that the governor's emergency-declaration powers would not allow the waiver of FOIA request deadlines. On the other hand, Loudoun County and Albemarle County (there may have been others) included in their local emergency declaration ordinances allowances for unilaterally extending FOIA request deadlines. Though both claimed they had not used the authority, Charlottesville Tomorrow said at least six of its requests were delayed.

So, on behalf of Charlottesville Tomorrow and VCOG, Del. Sally Hudson (D-Charlottesville) asked the AG's office for its opinion. On Oct. 5, the AG concluded that the local emergency declaration statute did not authorize localities to include FOIA deadline extensions in their continuity-of-government ordinances. "The time limits for responding to requests for records in VFOIA remain in place and must be complied with even during the current emergency."

 

-- Megan Rhyne

Open Government in the News

A Richmond Circuit Court judge imposed a $500 civil penalty on the speaker of the House of Delegates, Eileen Filler-Corn, for failing to turn over records related to the removal of statues from the Capitol. The speaker said no record related to the procurement process for hiring a company to execute the removal existed. However, the plaintiff obtained such records from the Department of General Services, prompting the judge to say it "strains credulity . . . to conclude that the Speaker was unaware of the existence of these records." In an op-ed, the Virginia Mercury added, "While you could choose to see the Filler-Corn example as a case of the system working as it should, it still took attorneys, a judge and weeks of delay to work through that system."

The Inspector General issued another report on complaints lodged against the Parole Board, and as it did when it released its first report in July, the IG report was heavily redacted so as to obscure the complaints or the findings. The IG again cited the part of FOIA that says FOIA does not apply to the Parole Board, prompting Republican lawmakers to again demand release under a separate state law, and prompting VCOG to again argue that the IG cannot invoke FOIA provisions on behalf of other entities.

The Town of Pound successfully fended off a challenge by a local citizen who claimed the town did not give proper notice of a meeting. A Wise County general district court judge ruled the town was not required to post notice on the town's website, even though § 2.2-3707 says notice should be posted in three places, including the "official public government website, if any." The judge agreed with the town attorney that to be official, the website needed a .gov domain address, whereas Pound's address ends with .com. In presenting the bill for his services to the town council, the town attorney submitted a letter admonishing the mayor for her involvement in the case: “You are the client, not the lawyer. Clients can choose to be stupid and idiotic, and when they do, I will let them know. Consider yourselves informed!!!”

According to records obtained through FOIA, Surry County received only one proposal during the 30-day window for museums and organizations to express interest in taking the county’s Confederate monument. The Smithfield Times reported the county administrator was initially reluctant to share details of the single proposal and said the information "was not available at this time."

Virginia State Police launched a new website this week designed to help the public submit and track FOIA requests. There is also a search function and Frequently Asked Questions page to help requesters understand their FOIA rights, how to submit a request and information on costs.

Members James Madison University Board of Visitors did not get a link to access the more than 650 public comments submitted for the Sept. 18 BOV meeting until 12 days after the meeting took place. The JMU student newspaper, The Breeze, also reported on the frequent use of two-by-two meetings by the university president before meetings to discuss meting agenda items with pairs of BOV members. The story prompted a critical response from the president, prompting an additional response from The Breeze saying it stood by its reporting.

A committee of the Suffolk School Board recommended eliminating two school board committees and converting them into staff-based entities. As such, the meetings of the Pupil Personnel Committee and the Student Services Review Committee would no longer be required to follow FOIA's meeting procedures.

A Prince William County circuit Court judge ruled that the more than 20,000 messages sent from the school superintendent's Twitter account to students in the district were "clearly exempted" from mandatory disclosure under the working papers and correspondence exemption.

A different circuit judge in Prince William County ruled that a gathering of five members of the county board of supervisors at a forum organized by the police chief to respond to protests in late May was not a meeting for purposes of FOIA because public business was not discussed among the members present. The plaintiffs asked the judge to reconsider, arguing that the five who attended should be considered the organizers of the meeting since the chief of police reports to the board of supervisors.

A story about Dominion Energy's influence over legislation in the 2020 session reported that when asked about communication between her office and Dominion, the then-deputy commerce secretary, Angela Navarro, said she had no records about changes to the bill Dominion wanted. Records eventually obtained from Navarro through FOIA, however, show that Dominion did ask for changes, and Navarro's phone records revealed she spoke to the utility  just before and after emailing amended language to the parties negotiating a compromise on the bill.

A Staunton city council member is taking her fellow councilors to court in a FOIA case over access to a document she wasn't provided prior to being asked to vote on it during a September meeting. The council member said she was not given the document within the statutory five-day deadline, while an attorney for the city's mayor said she had calculated the due-date incorrectly.

The Virginia State Police completed its review of approximately 40,854 pages of complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports and witness statements compiled in an investigation into allegations of corruption, conspiracy and obstruction of justice by the Appomattox County Sheriff’s Office and the Central Virginia Drug and Gang Task Force, but no charges were filed. VSP declined to release any related records when requested under FOIA, and the county refused to release any names or even the number of employees involved.

The Virginia Supreme Court issued an opinion on the Automated License Plate Recognition system used by the Fairfax Police Department. The court ruled the ALPR system is not an "information system" under the Government Data Collection and Dissemination Practices Act, which, if it was, would have limited the agency's ability to use and disseminate the license plate numbers collected by the system. The case was prompted by the records the plaintiff got back in response to a FOIA request for ALPR data on his vehicle.

The Democratic Party of Virginia sued the Richmond registrar over alleged failures to turn over mail-in ballots that had been flagged as defective. The case was dropped after the city agreed to work on turning over the responsive records so that voters who cast those ballots had an opportunity to "cure" them.

The Richmond police chief declined to name 13 of the 14 members of the newly created External Advisory Committee that is supposed to strengthen relationships and foster greater trust between the department and city residents. The police chief said some members feared they would be "doxed" or ridiculed for working with police, prompting a police accountability advocate to counter, “We need fearless people in these positions. If the people on the committee don’t want the public to know they’re on the committee, then I don’t think they should be on the committee.”

The former city attorney for Portsmouth filed a defamation lawsuit against the city's mayor over the latter's comments in an interview that the attorney had given “not very balanced and good advice” to the city council when he said in an email that the city shouldn't interfere with the then-city manager's oversight of her department.

The Piedmont Environmental Council completed its digitization of thousands of legal documents related to the Commonwealth’s 1930s-era condemnation of private lands in Rappahannock County for the creation of Shenandoah National Park. The project makes all of the deed book records, court proceedings and individual case files publicly accessible and searchable.