Transparency News, 2/23/2022

Tuesday
February 23, 2022

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state & local news stories

Today, the Senate General Laws Committee will hear a bunch of House bills on FOIA. 
You can watch the meeting here: http://virginia-senate.granicus.com/ViewPublisher.php?view_id=3
And you can follow along with the docket here: https://lis.virginia.gov/cgi-bin/legp604.exe?221+doc+S1210223

A quick run-down of the bills we're tracking.

√ HB 150 -- Requires online posting of local governing board minutes.
~ HB 307 -- Requires government to tell records requesters they can get an estimate. It's a well-meaning bill, but we think it should be part of the ongoing discussion at the FOIA Council about how to better administer and calculate fees.
X HB 734 -- Rolls back the bill passed last year to grant access to some parts of closed criminal investigative files. (See below for a fuller explanation.)
~ HB 970 -- This bill would shield names of donors to 501(c) charitable organizations. I still have some concerns that the patron's folks are working to address.
√ HB 1303 -- Says that votes taken by the Parole Board are subject to disclosure under FOIA.

So, HB 734...Here's a quick time-line of what's happened.
years up to 2020: Closed investigate files in police or prosecutor control could be denied outright without even opening the file.
2021: New law says closed investigation files (or parts of them) have to be released UNLESS (a) one or more of the 6 enumerated harms are present, and/or (b) there are photos depicting the victim.
2022 proposed by HB 734: Closed investigation files have to be released to victims/immediate family, but release to anyone else is back to how it was in 2020.

As backers of the 2021 bill, it's not surprising that VCOG opposes this bill. It's not that VCOG is unsympathetic to victims of crimes, but here are several things to consider:

• Not all victims want to clamp down on access. Family members of the Virginia Beach municipal shooting victims testified in support of the 2021 bill.
• After talking with prosecutors yesterday, it seems that many of the fixes they're proposing are actually already in current law.
• In FOIA, there is no one interest on the government's or public's side that wins every time. It's a balance of interest. But this bill says the interests of victims/families is greater than anyone else's every single time.
• The definition of "immediate family" means that extended, blended and non-traditional families have no rights of access.
• The bill will cut off access not just to the sensational cases talked about here but also investigations into drug crimes, property crimes, wire fraud, etc., as well as those cases where someone was arrested but then the charges were dropped.
• As police officers are being decertified, there is interest in reviewing those officers' cases by advocacy groups like NAACP.

We are two years into a pandemic and Staunton City Schools may finally be providing a way for the community to watch its school board meetings remotely. Staunton City Council has been using the video conferencing software Zoom to stream its meetings for anyone who can't attend in person. Staunton's School Board, which meets in city council's chambers, has only made its meetings available through audio stream for those listening from home. That may change soon. Tom Lundquist, the director of technology for the school division, said staff is working to adapt the city's technology with some modifications for broadcasting the school board meetings. He said the plan is to have video streaming to both Zoom and a YouTube channel. 
News Leader
 

It wasn't the first time 94-year-old Albino "Albert" Fossa was removed from council chambers by a police officer on duty during a Staunton City Council meeting.  The first time he was removed, it was because he spoke over the time limit allowed. The second time he was removed from council chambers, Fossa was deemed out of order. To put it simply, he spoke at the wrong time. During break, there's a friendliness and familiarity in the exchanges between him and council members that indicates they have come to know him.  "I'm going to come here and I'm going to rustle people's feathers," he said to council members prior to the night he was physically removed on Jan. 27 for the second time. That's Fossa.
News Leader
 

Roanoke police, not the councilman they were investigating, accidentally destroyed computer records belonging to Robert Jeffrey Jr. during an embezzlement probe. Police had said data seized from Jeffrey’s City-issued iPad last summer “was remotely wiped,” meaning erased, and that Jeffrey was “the sole person with the capacity to wipe it.” The revelation last year left the impression that Jeffrey may have tried to destroy potentially incriminating information. In a search warrant filed in Roanoke City Circuit Court in August seeking records from Apple Inc., a police detective wrote there was probable cause that data on the iPad included information “related to transactions comprising the embezzlement itself as well as evidence related to the expenditure of the embezzled funds and possible attempts to conceal these activities.” The warrant sought iCloud data, including notes, emails and photos. As it turns out, a police error led to the erasure of data on Jeffrey’s iPad, according to Commonwealth’s Attorney Donald Caldwell. “The information that the device had been wiped was inaccurate, because it subsequently appears that it was inadvertently wiped by the police trying to access the device,” Caldwell said in a brief phone call. “Just like any investigation, you follow up on potential avenues of evidence, and that was potentially an avenue of evidence that no longer exists.”
Roanoke Rambler