Summer's heat and humidity finally broke in August -- at least for a bit -- and so did the steady churn of court activity on FOIA issues. True, there was still one case touching on FOIA that came out of the Court of Appeals, but this month was marked much more by the nitty-gritty of making requests: the form, the format, the cost and the malware. Malware? Well, maybe not actual malware, but a recent incident coming out of Lancaster County highlighted both the reality and the fear of cyberattacks.

VCOG continued its work on the FOIA fees workgroup and the task force on records of animal testing violations at Virginia's public universities. And we set our date and location for our next conference. Scroll down to find when and where.

In late July, Lancaster County's attorney sounded the alarm that several attorneys in the state had received FOIA requests with attachments that were malware in disguise. Out of caution, the Virginia Association of Counties issued a member alert reinforcing industry best practices for system-wide IT security and for checking with requesters before opening any links or attachments. That common-sense warning was picked up by the Maryland Association of Counties, which added its own alarmist details to what Lancaster or VACo had reported. A MACo representative said, "Not only is this malware capable of shutting down entire systems," MACo wrote, "But it also expends resources and require[s] counties to spend significant amounts of money to repair the damage." While this is true for some malware attacks, Lancaster's attorney did not report any system shutdowns or expenditures related to the incident; he simply stated that he had not opened the suspicious attachment. Meanwhile, agencies in Pennsylvania were getting requests with similar characteristics: an email sent through the online FOIA-helper FOIA Buddy, asking for records on behalf on an individual named Frank Curry and including an attachment. Concerned about the legitimacy of these requests, a school district asked Pennsylvania's Office of Open Records to investigate. In a June opinion, the office determined that "Frank Curry" was a name automatically generated by FOIA Buddy as an alias. Under Pennsylvania law, public bodies are not required to respond to anonymous requests. A FOIA filed by VCOG for a copy of the Lancaster County request revealed that it, too, was generated through FOIA Buddy on behalf of Frank Curry, with a PDF attachment. Luckily, there was no apparent harm from this request -- other than embellishment by MACo -- and VCOG has asked the FOIA Council to include among its best practices for making FOIA requests that attachments and links not be included, and that, as VACo suggested, links and attachments should be approached with caution after consulting with the requester.

The FOIA Council's workgroup on fees continued its meetings in August. On the 19th, stakeholders met via Zoom to take a look at the first draft of a best-practices document the council is drawing up to aid FOIA requesters in keeping their requests narrow and focused. VCOG contributed many of the suggestions, informed by fielding hundreds of inquiries from citizens whose often-broad requests result in surprising fee estimates. The workgroup then tried working towards specific procedures for making a request. Sen. Danica Roem invited stakeholders in advance of the next workgroup meeting on Sept. 9 to consider whether a cap on the amount a public body can charge for an hour of labor, whether there should be any exemptions to that cap (e.g., for lawyers), and whether there should be any exemptions for certain types of requesters. 

The discussion inevitably turned to complaints about burdensome requests, citizens who want to harm government and the lack of money and staff to respond to requests. These are in addition to the problems identified by state and local members of the full council at the last full council meeting when the chair asked for ideas about future study areas or proposals: requesters who abuse the process, clamping down on records created about a closed meeting after the fact, extending response deadlines for student records to 45 days, limitations on FOIA during litigation, and allowing more redactions for personal contact information.

“A lack of transparency, whether real or perceived, risks undermining the airport’s successes and public confidence in its governance, management and operation.”

-- Rep. Jennifer McClellan in response to the Capital Region Airport Commission's decision to delay a vote on taking over two fixed-based operators at the Richmond International Airport  in part because of lack of adequate public review.

The Virginia Court of Appeals issued an opinion interpreting the Government Data Collection and Dissemination Practices Act. It also deals with FOIA, but those portions seem to deal more with application of law to facts instead of any heavy lifting on interpretation. The case is Keil v. O'Sullivan, where a former police officer wanted records about the sheriff's investigation into an alleged incident at a jail by employees supervised by Keil. He wanted his personnel record (which he got) and the records about him in the investigation. Keil said he was entitled to the latter through the GDCDPA, which gives "data subjects" a right to access/correct records about themselves. The COA said Keil wasn't a data subject because the investigative records weren't searchable by characteristics unique to Keil. The FOIA parts have to do with whether the sheriff ignored one of Keil's records requests and what impact the late disclosure of part of his personnel file had.

VCOG's 2024 Legal Fellow shared her thoughts on what FOIA's policy statement does -- or at least should -- mean to the judges presiding over FOIA cases.

Read it here.

SAVE THE DATE

The Richmond Times-Dispatch launched two databases to supplement its reporting of Richmond finances. The salary database is, well, a database of city employee salaries. It replaces a salary database the city used to post online but no longer does so. The other is a searchable database of expenditures city employees made using the city's purchasing card program.

The City of Richmond hasn't posted updates to its public database tracking government expenditures since 2019, despite a city ordinance requiring it to do so. The city's chief administrative officer defended the pullback, saying, "Registries are not common or best practice, and any cities that had implemented the requirement have moved away from them." A quick Google search shows that counties in Virginia and cities in other states still use online spending registries. The CAO's comments also prompted comments from city council members who noted that the ordinance requiring the database has not been repealed.

The City of Richmond has posted only two final reports issued by the inspector general's office since 2019, despite a city ordinance requiring it to do so. The IG told WRIC that he'd been given advice by the city attorney's office to be cautious when posting reports so as to protect whistleblowers. He also said members of the city council orally gave him discretion to publish reports online, though there was no city council vote nor repeal of the ordinance.

The Richmond Times-Dispatch obtained heavily redacted copies of non-disclosure agreements some Richmond restaurant owners were required to sign as part of their settlement of disputes over the city's meal tax collection.

Documents obtained through FOIA by the Richmond Times-Dispatch revealed that the Richmond Redevelopment & Housing Authority continued to work with an electrical supply company it began contracting with in 2009 long after the president and CEO of the company was appointed to the RRHA board in June 2022.

The Fairfax County Commonwealth's Attorney launched an online dashboard that breaks down cases handled by the office based on demographic information, case types and charges. It is similar to the database the Office of Executive Secretary of the Supreme Court maintains for the court system, but which does not include data from Fairfax County or Alexandria. Soon after the Fairfax roll-out, the Arlington County Police Department launched its own dashboard of crime data in the county, breaking down crimes by date, arrests and offense codes. The dashboard will be updated on Wednesday mornings.

Activation Capital refused to provide records related to the departure of its chief executive officer in July, citing an exemption for contracts that settle employment disputes. It is the first time a dispute has been acknowledged, and the amount paid to settle the dispute has not been disclosed, either.

Virginia Commonwealth University Libraries has put together more than 150 Richmond Police Department films and audio reels from 1961 to 1973 as part of a new project documenting the Civil Rights Movement in the South.

Emails obtained by Charlottesville Tomorrow through FOIA revealed that the city's attorney and an assistant attorney were on leave related to an unspecified complaint. Further inquiry revealed that the city attorney has surfaced in an investigation in Chesapeake when the city attorney worked there and was allegedly asked by the Chesapeake mayor to do some work for the mayor's stepbrother.

Citing the discretionary exemption for attorney-client communications, Spotsylvania County Public Schools said it would not release a report it commissioned for $64,000 to look into a controversy within a high school swimming program. The division has also spent $236,000 on other outside attorneys since May 1 for work characterized only as "human resources" and "executive admin services."

The Daily Progress announced it would be appealing an Albemarle Circuit Court ruling that allowed the county Commonwealth's Attorney to intervene in a case to pry loose a report UVA's board of visitors asked for to investigate the happenings before and after the deadly shooting of three UVA football players. Commonwealth's Attorney Jim Hingeley has said he doesn't want the university to release the report because it might jeopardize the case against the accused shooter. In court in July, he also said that in his opinion, the report became a criminal investigative file when a copy of it was given to UVA's police chief.

The Town of Mineral waded into murky territory when the mayor said that Robert's Rules of Order justified a change in the public comment period rules. Now, citizens will have three minutes to speak, "as long as it's not part of the agenda items for this evening." Asked to explain, "If it's on the agenda, the public doesn't need to speak on it, because one, it's not a public hearing, and if it's on the agenda, you're going to hear about it during the meeting."

Documents totaling 232 pages obtained by The Virginian-Pilot through FOIA revealed that the former director of economic development for Virginia Beach charged around $47,000 in travel and other spending over a 12-month period. The director resigned in July, and the city says it is investigating the expenditures.

FauquierNow created a database of potential and pending applications to the Fauquier County Department of Community Development. Nine proposals for data centers are currently pending or expected. Meanwhile, in the Town of Warrenton, which is in Fauquier County, voted late at night in mid-August to appeal the recent Court of Appeals case that said the town could not use the working papers and correspondence exemption to shield more than 3,000 emails of both the former town mayor and the former town manager. The Court of Appeals said the town could claim the exemption for only one at a time. The town's current mayor said the appeal was needed to clarify state code.

Following the arrest of a former school administrator on nine counts of child sex crimes against his adopted son, parents in Prince George County want answers. They found an ally in one member of the school board who learned that the district was spending money on outside attorneys to answer FOIA requests filed by WTVR. The board member asked that the board be copied on all future FOIA requests.

VCOG will continue participating in a workgroup on access to records of animal testing violations at Virginia's public universities. The group's second meeting was Aug. 30 and its next one is Sept. 20.

VCOG will continue participating in a workgroup on the cost of public records. The group held a meeting Aug. 19 and its next meeting will be Sept. 9.

VCOG will attend the FOIA Council's next meeting on Sept. 16. There's no agenda yet, but there will likely be updates on the fee workgroup and they might set committees to study ideas members floated at the July meeting.

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