Notable in the first full month of fall was a FOIA dispute in Spotsylvania County that was dismissed due to "improper service," sparking debate over interpretation of service requirements. Meanwhile, UMW researchers uncovered widespread nondisclosure agreements between data center developers and local jurisdictions; the FOIA Council floated fee-cap recommendations; we published a primer on electronic meeting rules; and there's another legal challenge over access to officer names.

Also in October, VCOG was on the road to Roanoke, to speak to the Virginia Association of Community Services, and to Virginia Beach, where she met with the Virginia Association of Government and Archives Records Administrators. Megan Rhyne began her annual class on the legislative process for the University of Richmond's continuing education center.

Don't forget: VCOG's annual conference is April 3, 2025, in Harrisonburg (stay tuned for details), and the National FOI Coalition's annual summit is Nov. 14.
 

A FOIA case in Spotsylvania County General District Court took a surprising turn when the judge dismissed it for "improper service." The case involved a former high school swim coach seeking correspondence between the school district superintendent, two school board members and the school principal related to events that led to his resignation. According to § 2.2-3713(C), a judge should set a FOIA hearing within seven days, “provided the party against whom the petition is brought has received a copy… at least three working days prior to filing.” Despite this language, attorneys for the school district argued the coach was required to serve the defendants through the sheriff or a third-party process server and the judge agreed. The judge then denied the coach's request for reconsideration.

I remember when the FOIA Council addressed this "advance notice" issue in 2010, reviewing proposals prompted by a Prince William County parent’s FOIA petition against the school district during winter break. One proposal required “has been served,” while the other used “has received.” The Council ultimately adopted “has received,” noting that “served” would slow the process, as explained by a longtime government attorney and author of a FOIA primer for elected officials. To me, and many judges statewide, this choice means process service is not required. Requiring otherwise undermines FOIA’s enforcement intent, which aims to simplify filing for citizens without legal representation.

Meanwhile, the coach is questioning the general district court's "bench book" guidance that says, “providing a copy of a petition before filing is not a substitute for service of process after filing.”

-- Megan Rhyne

Through FOIA requests, a University of Mary Washington student research team discovered widespread nondisclosure agreements being used by Fredericksburg-area jurisdictions and major data center developers, including Amazon and Quantum Loophole. These NDAs restrict public access to critical information about data center developments, such as energy and water usage and, in the case of Caroline and Culpeper Counties, even the developers' identities. In addition to those two counties, a student received copies of NDAs from Stafford, Louisa and Orange Counties, plus Fredericksburg. King George County was "largely unresponsive," according to a story about the researchers' press release in the FXBG Advance. Also according to the FXBG Advance, the researchers acknowledge the need for protecting proprietary information, but add, "nondisclosure agreements often go beyond that narrow protection, covering any discussion, negotiations, or proposals and counterproposals in which the two parties engaged.”

The FOIA Council will be asked in December to approve of changes recommended by the council's FOIA fee workgroup, which has met several times since this summer. The group has already recommended a best-practices document aimed at requesters on the theory that better formed requests may help reduce the time (thus the fees) needed to fill the request. The workgroup has suggested that fees -- if charged -- be capped at $40 or the median salary of the public body's employees, whichever is less. Sen. Danica Roem is expected to carry a bill in 2025.

After conducting multiple training sessions for public bodies about the when, where and how of electronic meetings, VCOG created a primer to help. The primer summarizes the rules for individual remote participation, all-virtual meetings, accommodations for people with disabilities or the caregivers of people with disabilities and the rules during declarations of emergencies. Though remote participants were supposed to have been allowed to vote, a provision making that explicit was added in 2024 because some public bodies were not allowing it. The primer makes note of that, too.

The Invisible Institute, a non-profit, data-driven newsroom, and Richmond resident Tom Nash, have petitioned the Richmond Circuit Court to challenge the decision by VDCJS to redact names from a list of active, certified law enforcement and corrections officers. VDCJS relies on the trial court rulings in the Minium v. Hines case currently on appeal to the Court of Appeals for Virginia, and a similar ruling in favor of Chesterfield County (also involving Minium), to say that it can redact the officers' names because some of them may be involved in undercover operations in the future. VCOG has filed an amicus brief in favor of Minium in the Hines case. 

The judge overseeing the involuntary manslaughter trial of a hospital worker present at the time of Irvo Otieno's death tried to bar reporters from the courtroom during jury selection. The judge eventually relented, and a lawyer for the Richmond Times-Dispatch urged the judge to make accommodations for the press in future trials. Later reporting on the trial - which ended in the acquittal of the hospital worker -- revealed that the state spent $872,000 for the worker's attorneys.

The Fairfax County Circuit Court has introduced a new e-filing system for criminal cases, phasing out the need for physical case files. This follows the court's eCaseSearch system launched this summer, which allows the public to look up basic case information in multiple languages for free. Fairfax is not part of the Supreme Court's case information system.

The former superintendent of Spotsylvania County schools, Mark Taylor, filed a federal court wrongful termination action against the school board and five of its members. Taylor says he was terminated for holding a book fair -- in his personal capacity -- with a "family-values" perspective, which violated his First Amendment rights. Included in the filing was a letter between attorneys for the two sides indicating that Taylor may have "repeatedly violated the Virginia Freedom of Information Act and school division policy in relation to FOIA."

A Hopewell Circuit Court grand jury issued an indictment for the Hopewell treasurer on four charges, including two counts of forging and uttering a public record.

In a letter obtained by The Virginian-Pilot, a local prosecutor in Chesapeake warned the FBI that interference from City Hall could derail the investigation into allegations of bribery and political corruption against the wife of former Congressman Randy Forbes.

Saying that the 5% salary increase being paid to the superintendent was never voted on, the Accomack County School Board took steps to claw the extra amount back. The raise came to light because of a public records request from a former school board candidate and longtime board watcher.

A speaker at a mid-October meeting of the Spotsylvania County School Board was interrupted and her microphone cut off when she began criticizing the district superintendent for the school system's public response to a case involving the molestation of eight children with disabilities. The board chair told the speaker she could not speak publicly about an employee. An audience member was removed from the meeting by a sheriff's deputy. At the board's next meeting, a man dressed as a "furry" who said his microphone was cut off earlier this year, spoke during the public comment period, and the chair cut off the microphone of one the board members.

The Clarke County Board of Supervisors approved the dissolution of the Department of Social Services board and transferred oversight of the department to the county administrator. The move was needed to "streamline and improve the overall effectiveness and efficiency" of the agency, but it's impact on public accountability was not mentioned: an entity created by an individual (the administrator) doesn't have to follow FOIA's meeting rules. 

Among its legislative priorities for the 2025 General Assembly session, the Orange County Board of Supervisors indicated it wanted to keep FOIA laws in place as they are. It's unclear whether that includes a FOIA-Council inspired bill on FOIA fee reform that is expected to be carried by Sen. Danica Roem.

By Executive Order 39, Gov. Glenn Youngkin ordered state agencies that issue permits or licenses to improve the process in four ways, including by "digitizing and enhancing the user experience for the approval process."

After being criticized by Rep. Gerry Connolly for missing more than a quarter of the Herndon Town Council meetings, Councilmember Naila Alam claimed his criticism was based on his opposition to her platform on the war in Gaza. FFXnow looked back through meeting minutes and found that she missed 10 meetings in 2021, 10 in 2022, eight in 2023 and four this year. Alam responded that she's been unable to go to meetings "because I needed to attend to my family members' health issues." A provision added to FOIA in July 2021 allows unlimited remote participation for someone taking care of an ill family member, so long as the public body has a policy in place. Herndon's policy does not appear to have been updated to include the amendment.

VCOG's 2022 FOIA citizen honoree, Laura Mollo (pictured below), was profiled by the Virginia Center for Investigative Journalism's Democracy at Work series for her work bringing sunlight -- and change -- to her hometown of Richlands. Mollo's interest in the workings of town government was cemented when she made a FOIA request for a list of police officers and it was ignored by the town council and the town manager. Mollo credits VCOG for helping her navigate her rights under FOIA to gather information about town finances. She now sits on the Richlands Town Council.
Note: the author of the VCIJ article, Christopher Tyree, serves on VCOG's Board of Directors.

The former FOIA officer for the City of Richmond, who has filed a whistleblower suit against the city, says that the city is dragging its feet on setting a court hearing. Connie Clay claims she was let go because she refused to go along with some of the advice she was getting on filling FOIA requests that she felt went against FOIA's provisions. The city says it was just a difference of opinion. Clay filed her $250,000 lawsuit in March.

A federal judge in Alexandria ordered the Department of Elections to release the names of those people removed from the voter rolls by Gov. Glenn Youngkin's executive order to remove those who did not affirm their citizenship when registering to vote at the Department of Motor Vehicles. Reporters followed up on the 1,600 names and discovered that a large majority of them were eligible to vote. 

After a series of discrepancies arose in campaign finance reports filed by candidates for various city offices in Richmond, it is still unclear who is supposed to be ensuring and enforcing the reports' accuracy. The city's top prosecutor says she cannot take action on her own, while the top election official says he doesn't have the power to verify the accuracy of the reports. A spokesperson with the Department of Elections said the power belongs to the Commonwealth's Attorney after issues are flagged by the local elections office.

Five citizens in Loudoun County who were not allowed to speak during the county school board's Oct. 8 meeting filed a federal free speech lawsuit against the board. The five say they were shut down by the board's chair, who said they could not reference identifiable individual students.

Through records obtained through FOIA, the Richmond Times-Dispatch reported that Richmond spent $19,000 to send the city council's chief of staff to various training and professional development events between her appointment in January 2023 and her termination in September 2024.

The clerk of the Richmond City Council indicated that it has cost over $10,000 to advertise public hearings on the city's real estate taxes because the council keeps postponing the hearings. Each time the hearing is postponed, the city has to purchase additional ad space in local newspapers, according to provisions in the Virginia Code specifically applicable to cities, counties and towns.
 

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