Transparency News 3/4/16

State and Local Stories

Please call your senator this morning and ask him/her to vote to override the governor's amendments to SB 494 and to support a motion to enact the measure as is. The bill was passed by for the day yesterday and so may come up today.

The governor’s says the bill needs to be studied longer and will impact the time and cost of filing FOIA requests. Here are our responses to those points:

• Two Supreme Court justices in the case that prompted this bill dissented on the redaction issue. Justice Bill Mims wrote: "The majority adopts VDOC’s position whereby if a requested record contains a single sentence falling under Code § 2.2-3705.2(6), then a public body is authorized to withhold that entire record.” In Mims’ views, ”VFOIA requires public bodies to determine whether an exemption applies to an entire record or only to specific information contained therein. If an exemption applies only to specific information contained therein, then the public body must release the requested record, and it may redact the exempt information in its discretion."
   
• The FOIA Council was briefed on the case just two weeks after it came out in September (the meeting was attended by the AG’s representative to the council, the Librarian of Virginia, the local government attorney representative, Sen. Richard Stuart (an attorney) and one of the governor’s appointees to the council.)
   
• The FOIA Council was again briefed at its November meeting (with the same people in attendance, plus the other gubernatorial appointees (both attorneys, one with a career in state government), and the council as a whole — with no objections — agreed with the assessment that the underlying opinion created much uncertainty in the duty to redact documents and directed staff to draft a global fix for the problem.
   
• A House R and a Senate D introduced identical bills to address the problem. Once introduced, the bills have received near-unanimous support (only three no votes between them), local government has supported the bill, law enforcement concerns were addressed, and the only state agency to testify against SB 494 was the Department of Corrections, and only then in a House Committee.
   
• The governor’s assertion that this bill needs to be studied belies the fact that it has already received both conceptual and specific review since September 2015.
   
• The governor’s interpretation of the underlying case (that it only addressed a specific problem, not a general problem of redaction) goes against the interpretation of lawyers with backgrounds in local and state government, media law, open government and general practice. Not to mention two Supreme Court justices, one a former legislator and attorney general.

Bottom line: if you didn’t have to pore over a record line by line before the Supreme Court opinion in September, then you won’t have to do it when this bill passes. It does not create any new burdens, it just codifies decades of conventional practice.

Virginia's citizens, government and media need clairty about their duty to redact. SB 494 (and HB 817, still making its way through the process) would provide that.
 

Legislation that would require the executive branch to release resumes and applications for political appointees cleared the General Assembly Thursday. House Bill 220 has its roots in a contentious state Senate race last fall. Democratic candidate Gary McCollum put out incorrect information about his status in the Army reserve, and the Virginian Pilot asked to see the application he put in to get a gubernatorial appointment to the Virginia Port Authority to see how he characterized it then. Gov. Terry McAuliffe's administration rejected the request, citing the state's wide "working papers" exemption in the Freedom of Information Act, as well as the act's exemption for personnel records. Del. Scott Taylor, a former Navy Seal, filed this bill to force the release of that sort of information on any appointees. The bill cleared the Senate Thursday 23-17, having passed the House last month 78-20.
Daily Press

A bill under consideration in the General Assembly would adapt the definition of “critical infrastructure” to allow the state to withhold details about water pipes, electricity transformers, broadband cables and bridge designs in the name of safety. The Virginia Department of Public Safety and Homeland Security said matching the definition for “critical infrastructure” with federal code will allow the department to better plan for terrorist attacks and other emergencies. Private businesses have withheld information from the government because it would be available to the public under Virginia’s Freedom of Information Act. Ginger Stanley, the Virginia Press Association’s executive director, said the bill as amended does not limit public access to information. The Virginia Press Association opposed the original bill, which was killed with other FOIA bills last week. It was revived Wednesday and passed through subcommittee and committee the same day. The part of that bill opposed by the VPA was removed. The original bill would have required the business be notified of a FOIA request subject to the section.
News & Advance

Both chambers of the Virginia General Assembly unanimously passed a measure that would allow local law enforcement agencies to withhold parts of non-criminal records, such as footage from body-worn cameras, that could contain sensitive information. The Hanover County Sheriff’s Office has pushed for the introduction of House Bill 1318 as a cautionary action for when they implement the use of body cameras in the near future. Both versions call for an amendment to the Freedom of Information Act (FOIA) specifically relating to public access to non-criminal records.  Feb. 29 the House bill unanimously reported out of the General Laws and Technology senate committee. Col. David R. Hines, Hanover County sheriff, said it’s a privacy issue and he fears that people would use the video footage from non-criminal incidents such as traffic stops or domestic violence calls for “entertainment value” and upload it to sites like YouTube. In addition to camera footage, non-criminal records could also include items such as written reports or photographs. Prior to County Attorney Sterling Rives assisting with drafting the language for the house legislation, he sought after an opinion on the matter from the FOIA Advisory Council’s opinion, which he said didn’t find any issues with the proposed changes. Del. Buddy Fowler said Hanover County and the Hanover County Sheriff’s Office brought this issue to his attention. Since that time, he’s spoken with Ginger Stanley, executive director of the Virginia Press Association, who he said didn’t have any concerns with this bill.
Herald-Progress

The meeting of the Fairfax County Board of Supervisors had ended. But several members were still arguing on the dais, even as board chair Sharon Bulova (D) urged them to leave. Moments earlier, Supervisor Catherine Hudgins (D-Hunter Mill) had accused her two newest colleagues of political grandstanding. “This is childish play, that once you don’t get your way, you want to come back and change it,” Hudgins told Kathy Smith (D-Sully) and Dan Storck (D-Mount Vernon). “You can’t have it always only your way.” Such public vitriol is almost unheard-of in polite Fairfax County. But it happened Tuesday night, spurred by growing tension over the budget and the still-new presence of Smith and Storck, who in January joined a board whose other eight members have served together for at least seven years. The real anger erupted later in the meeting, after school advocates lobbied several supervisors to employ a parliamentary maneuver that would let the board to reconsider the failed motions. Supervisor Linda Smyth (D-Providence) argued that revisiting a vote that already passed could damage the board’s credibility. After everyone finally left the meeting room, the bickering spilled onto social media websites.
Washington Post

More than four months ago, a federal jury in Iowa found Dimitri Kesari guilty of causing a false record in relation to the 2012 presidential election. Today, Kesari remains free and a member of the local Hamilton Town Council. Kesari's months-running legal trouble stems from his role in a pay-for-support scheme while working on Republican Ron Paul's 2012 presidential campaign. The scheme involved Paul's 2012 presidential campaign committee in Iowa and alleged payments to former Iowa state Sen. Kent Sorenson, who switched support from GOP candidate Michele Bachmann to Paul. In Hamilton, one of Kesari's colleagues on the local council believes the political operative should step down from public office. “As I understand it, there’s not a lot of Virginia laws against convicted felons and public office,” said Council member Craig Green.“I believe he owes it to the Town of Hamilton to step down. 
Loudoun Times-Mirror


National Stories
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A Missouri lawmaker who tried to kill herself last year now wants to make police reports of suicides and attempted suicides closed records. Rep. Genise Montecillo’s proposal to restrict access to those reports received approval Wednesday from a House committee. Montecillo, a St. Louis Democrat, tried to kill herself in June 2015. She has said she worried that her ability to do her job as a legislator would be questioned if her attempt was made public. “Nothing about this story served any public interest, not to mention it inflicted additional harm to my family and hindered my recovery,” Montecillo said during a House hearing this week. She said current policy adds to what she described as stigma and discrimination related to suicide and that she wants to help others.
CBS St. Louis

Pennsylvania Attorney General Kathleen Kane's closest confidant and driver, Patrick Reese, was sentenced to 3 to 6 months of jail and fined $1,000 Thursday for violating a judge's order by snooping through coworkers' emails to keep tabs on a grand jury investigating his boss.
Governing

Autopsy results for Bobbi Kristina Brown, the daughter of singers Whitney Houston and Bobby Brown, will be made public after a Georgia judge on Thursday ordered the report to be unsealed. Bobbi Kristina Brown, 22, died in July after months in a coma. She had been found unconscious and unresponsive in a bathtub in her north Atlanta home in January 2015. The Fulton County medical examiner's office said it was awaiting the judge's order and would not provide the autopsy details before Friday. Prosecutors opposed the report’s release, arguing it would compromise an ongoing criminal investigation of the celebrity daughter's death. 
Reuters


Editorials/Columns

Kionte Desean Spencer’s family may never know the names of the two people who killed him last Friday in Roanoke County. That is because Spencer, an 18-year-old African-American fatally shot in the chest while holding a broken BB gun, was killed by police. Under Virginia law, the Roanoke County Police Department does not have to release the names of the officers who shot and killed Spencer and, predictably, it does not want to do so. The Roanoke branch of the NAACP has correctly demanded the release of the shooters’ names. Here is the Police Department’s rationale for keeping the names of these public employees secret, straight from its own news release: “Transparency is very important to us which is why we provided to the media preliminary information and photos from our officers’ dash camera video. We cannot and will not provide additional, detailed information that has the potential to jeopardize the integrity of the investigation. “There are calls to reveal the names of Officers involved in this event. We will not do so at this time. The Officers involved are essential to the investigatory process that is underway. There is no discernable benefit to exposing Officers to unwarranted speculation while the facts related to the incident are yet to be fully known.” So, transparency is important but there is “no discernable benefit” to releasing officers’ names? There’s a benefit to releasing the name of the person shot by police before the facts are known but not the name of the officers who did the shooting? How about the benefit of offering the highest level of accountability to the public that the Police Department serves?
Claire Guthrie Gastañaga, Roanoke Times