Transparency News 2/3/16

State and Local Stories

Yesterday’s Senate subcommittee on FOIA was a tough day for open government. Only one of the bills we like was marked for survival, and several we don’t like were, too. A few are being recommended to the FOIA Council — good on the one hand, but an up or down vote may have been preferable.

The panel, which makes recommendations to the full committee (unlike the House, Senate subcommittees cannot kill a bill, only a full committee can), recommended that a bill to make the salaries of public employees making under the equivalent of ~ $30,000 off limits. Instead of mandatory disclosure, disclosure would be discretionary. And the bill would also prohibit publication of names and salary to an online database. (See the stories below.)

Another salary bill — this one would exempt all salary data (including job classification and position) for law enforcement, ABC and DGIF officers, and more. When law enforcement sought to broaden the category with fire marshals and others, the subcommittee said the amendment needed to be worked out and could be heard at the full committee.

The subcommittee recommended that three bills go to the FOIA Council for study. One would have opened up criminal investigative files to the families of suicide victims. One would grant localities of 40,000 and fewer residents an additional 10 days to respond to FOIA requests (this is down from the 30 days originally proposed).

A third bill was simultaneously moved on to the full committee and referred to the FOIA Council, meaning (I think I got this right) that the FOIA Council will study whether this bill was a good or not and then recommend any fixes for 2017 even though it would pass and go into effect this year. The bill not only expands the current exemption for critical infrastructure, but it puts into place an unheard-of process that allows third parties to object to a records custodian’s decision to release records under his/her discretion. The process would take upwards of 21 days, and it would impose on FOIA an unprecedented balancing test of the need for confidentiality against the public’s right to know.

The subcommittee approved a bill having to do with fracking and the chemicals used. The bill has been amended to alleviate the concerns we had with it. And the subcommittee also approved a bill to exempt from disclosure various records used in teacher licensure investigations. Closed investigations would be public.

The full committee is supposed to meet Monday the 8th in the afternoon.

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A state senator is sponsoring a bill that would significantly expand the number of state and local government employees whose pay could be kept secret from the public. State law requires that salary information for government employees who earn more than $10,000 a year be made public. But the bill by Sen. Richard Stuart, R-Westmoreland County, would raise that to twice the federal minimum wage – about $30,000. The bill also says that any publicly available database of local or state government employee salaries would not include names of the employees. Open government advocates said at a subcommittee hearing Tuesday that the bill would hinder transparency and make it difficult to discover nepotism and unfairness. Proponents said the bill was necessary to protect state employees from identity theft, although they acknowledged they knew of few examples of identity theft that could be tied to a public employee database.
Virginian-Pilot

A measure aimed at keeping more information about public employees' pay out of the public eye won approval from a key state Senate panel Tuesday, but the group narrowed the scope of legislation that could have kept secret all information about chemicals used in fracking. The Senate General Laws Committee's Freedom of Information subcommittee asked for more study of legislation that would give two-thirds of Virginia counties and more than half of its cities twice as much time to respond to FOIA requests.
Daily Press

There are many ways to kill a bill. A bill may die in spotlight on the floor of House or Senate, or in tiered committees and subcommittees funneling information and legislation upward. When turned down indefinitely or reported to the next highest decision-making body, votes attach to the representatives who cast them. Many other bills, though, are “gently laid on the table,” often in a quiet voice-vote. “While people who are in the room can see who votes for a motion to table and who votes against, all the citizens can’t be in the room all the time,” said Del. Ben Cline, R-Rockbridge County. Cline has introduced legislation to correct what he sees as a problem with transparency and accountability to constituents. The bill would require any legislation, resolution, substitute or amendment in either house be considered by a committee or subcommittee and its vote recorded. It is assigned to the House Rules committee, which killed the highest percentage of its bills without a recorded vote last year, according to the Virginia Transparency report for the 2015 General Assembly.
News & Advance

A Virginia lawmaker is joining a chorus of voices across numerous states pushing officials to reveal the source of drugs used in lethal-injection executions. But Democratic Sen. Scott Surovell’s measure appears to have little chance of passing this year: A subcommittee that examined the measure voted 4–1 against it on Tuesday. Surovell introduced his bill in response to Virginia’s use of pentobarbital from Texas to execute convicted serial killer Alfredo Prieto in October. Unlike Virginia, Texas allows officials not to disclose where they got the drugs, so the identity of the compounding pharmacy that supplied the substance used in Prieto’s execution remained under wraps, drawing fierce criticism from defense attorneys and anti-death-penalty activists.
Free Lance-Star

A former Hopewell sheriff says he was questioned by the FBI and the State Police Bureau of Criminal Investigation about his alleged affair with a City Council member. Greg Anderson said in an interview that he met with two agents for three hours last Wednesday, one representing the FBI, the other from Virginia State Police. Anderson said the topic was his allegation of an 8½-year relationship with current Vice Mayor Christina Luman-Bailey and her role as a researcher for Vireol Bio-Industries, a company that purchased a shuttered ethanol plant in Hopewell while she was a member of City Council.
Richmond Times-Dispatch

A former Martinsville city public works employee pleaded nolo contendere (no contest) Tuesday in Martinsville Circuit Court to 12 felony counts of embezzlement stemming from unauthorized purchases totaling more than $4,000 he allegedly made on a city-issued credit card. The items purchased were a laptop at OfficeMax and 11 iPads at Walmart, according to testimony. Leanne Watrous of the Public Defender’s Office, who represented the employee, indicated in court that the employee thought he was authorized to buy items so that workers could work remotely. She also said some of the items had been returned. She added that the employee had no criminal history, that he been deployed several times as a security officer in the Air Force, and had a shrapnel injury.
Martinsville Bulletin
 

Editorials/Columns

Richmond Mayor Dwight Jones is getting a bum rap. We don’t say that often. The mayor has had some victories — see the UCI cycling championships for a stellar example. But overall, his administration has been a disappointment. Now law enforcement authorities are investigating the city’s involvement with his church. That looks ominous. On the question of altered photos, though, his critics should back off. The mayor clearly was not trying to trick anyone. “We’ve all seen this image,” he said as the original picture appeared. “But we probably won’t see an image like this . . . or this . . . and that’s what we need to talk about.” It was a sight gag — and a rather obvious one. That’s all. Jones could have avoided this flap by staging a similar photo with real signs. Manipulating images through Photoshop is always dangerous. News organizations make it a point not to alter pictures. All the same, audiences are capable of rational judgment — or ought to be.
Richmond Times-Dispatch

Because of the FOIA findings, Michigan and Flint officials finally had to admit that the Virginia Tech team was correct: The water was toxic. Use of FOIA—Michigan’s state open-records law—was a key weapon that helped the Tech team. However, if the roles were reversed—had Michigan scientists attempted to help Virginia residents investigate a health or environmental problem—the Michigan scientists could easily be thwarted. The reason is the differing open-government laws of each state. Virginia’s FOIA says this: “all public records shall be open to inspection and copying by any citizens of the Commonwealth . . .” Michigan’s FOIA says this: “It is the public policy of this state that all persons, except those persons incarcerated in state or local correctional facilities, are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees . . .” Michigan’s legislature had the wisdom to enact a law that does not prevent out-of-staters from obtaining its public records, while Virginia’s law says public records can be limited just to Virginians.
Dick Hammerstrom, Free Lance-Star