The Sunshine Report, October 2020

It was a first, but maybe not the last. VCOG's Virtual Conference went off with only minor hitches Sept. 10, with eight different panels and 16 panelists. It started with a review of the 2020 General Assembly (all three of its sessions!) and concluded with training for FOIA officers that satisfies the statutory training requirement. In between, attendees heard about COVID-19 data and its impact on FOIA, transparency of policing data, the state's email system, the life of a busy FOIA officer and changing the culture of a public body from within.

Couldn't make it? Check out our conference website, which includes video of the panels, as welll as information on panelists and (of course!) our wonderful sponsors.

VCOG joined with Partners for College Affordability and Public Trust and 14 others in urging the James Madison University Board of Visitors to provide electronic access to its planned in-person meeting that was to be held just days after sending students home because of high COVID-19 numbers on campus. Eventually, JMU did agree to provide electronic access.  
 

VCOG sent a similar letter to the Board of Dentistry, which scheduled an in-person meeting with space for only nine members of the public and no electronic access. The board expanded the in-person seating capacity in response, but still did not provide electronic access.
 

VCOG joined a dozen media organizations around the state and country in an amicus brief prepared by the Reporters Committee for Freedom of the Press. The brief is in support of various media outlets that are appealing a federal district court ruling over the press' ability to witness the lethal injection process in Virginia's prisons.
 

In September, VCOG's Megan Rhyne taught two classes on FOIA and access, one to students in the Capital News Service program at VCU, and one for students at the First Amendment Law Clinic at UVA.
 

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The 2020 Special Session

The special session has now gone on for 45 days, the same amount of time reserved for odd-numbered years of the regular session (even-numbered year sessions are 60 days long), but there's some end in sight and the budget is finally being discussed. Only one (well, two, but they're nearly identical) of the bills VCOG was following and supporting made it through: HB 5048 (Sickles) and SB 5081 (Barker), which will require the Department of Health to make certain information about outbreaks in nursing homes, schools, summer camps and similar public entities publicly available. The bills have an emergency clause on them, meaning they will go into effect as soon as the governor signs this. The timing is good, as many school districts will be contemplating in-person in the coming weeks.

HB 5090 (Hurst) (I mistakenly listed Del. Mullin as the patron in last month's newsletter), which would have required some inactive or closed criminal investigative files to be disclosed upon request, passed the House with bipartisan support and got a strong hearing in a Senate committee, but it was ultimately sent to the FOIA Council for study.

So, too was SB 5012 (Suetterlein), which would have required the votes of Parole Board members to be public. The bill passed the Senate with bipartisan support but a House committee insisted it be studied further.

HB 5091 (Rasoul), which would have required release of some body worn camera footage, was left in the House Courts of Justice Committee without being heard.
 

-- Megan Rhyne

Open Government in the News

Arlington and Chesterfield Counties were voted first place in the country for their population categories in the 18th Annual Digital Counties Survey, conducted by the Center for Digital Government. Additional shout-outs to Albemarle, Fairfax, Franklin, Loudoun, Montgomery and York Counties.

The Daily Progress spot-checked 62 statements of economic interest filed by various Charlottesville officials and found irregularities in 10 of them. The paper also noted instances where officials missed statutory filing deadlines. Though several entities have authority to review the form, assessing the accuracy of a form is difficult without more resources.

In September, six months after the declaration of emergency for the pandemic, many continuity-of-government ordinances have started to expire. Some have been renewed or modified, while others have been scrapped. Leesburg, on the one hand, renewed its ordinance for another six months. And while it continues to allow for virtual meetings, it now requires a minimum of four town council members to be physically present in one location. On the other hand, when Albemarle County renewed its ordinance, it again included a provision that gives the county authority to follow its own deadlines for filling requests for records under FOIA. VCOG noted on Twitter that the county says it works with requesters in normal times to occasionally extend deadlines, which seems to prove the point that the ordinance isn't necessary.

A divided Virginia Beach school board voted to kick one of its members out of its meeting because of her refusal to wear a face covering during the meeting. The member said she had a medical condition that prevented her from wearing one, and she offered to sit in the back of the room away from others. Her colleagues insisted she needed a doctor's note to go against school board policy, but the member said she shouldn't have to share medical information with them.

A Rappahannock County circuit judge awarded attorney fees to the lawyer representing a citizen in her 4-year-old FOIA lawsuit against the county. The attorney asked for $132,769.46 but the judge awarded just $6,250, citing issues the citizen did not prevail on. The Rappahannock News reported that the county treasurer estimated the lawsuit cost the county an additional $50,000 or more in fees paid to outside law firms to defend county supervisors.

The Suffolk School Board officially voted to appeal the court decision against it in the FOIA lawsuit brought by one board member against the others. The vote ratified the notice of appeal filed the previous month, which had to be filed by court-mandated deadlines before the board had a chance to meet. Meanwhile, the school board began consideration of a policy that would limit public comment to "members of the Suffolk community." A week later, the attorney general’s office issued an opinion that faulted a board policy that required a board member to get the approval of the full board before seeking records under FOIA that would take staff “considerable work or time.”

According to email correspondence obtained by the Tidewater Review, the King William Commissioner of Revenue refused to let auditors into her office as they pursued a review of the treasurer’s office. "I am declining this audit," the commissioner wrote in a message to the county's financial director. "It is a waste of taxpayer money at a time when we are converting to new systems." Signs appeared on the commissioner's office door saying the office would be closed “due to audit,” but these were later taken down.

In the early days of the pandemic, the public and press were at odds with the Northam administration over the release of the names of nursing homes where outbreaks of COVID-19 had been documented. Then if was meat and poultry processing plants. As the summer waned, it's all been about access to information about positive cases in schools and school districts. On the 15th, the Virginia Department of Health said it had no plans to launch any kind of dashboard to update the public on site-specific school district outbreaks. By the end of the month, however, VDH launched a "pandemic metrics" dashboard it said was intended to give decision makers tools to for deciding when to resume in-person educational instruction. Some school districts began providing case numbers to the public, both district-wide and for individual schools. In the Hampton Roads area, school districts were reporting district-wide numbers but not school-specific ones. But citing privacy, the Norfolk school system wouldn't even release the district-wide numbers. Norfolk reversed course on that stance, though, just days after a Virginian-Pilot story about it.