Transparency News, 3/4/2022
Friday
March 4, 2022
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state & local news stories
This weekend, take a moment to let your Senator know that you oppose HB 734, which would roll back the law passed last year that provides a pathway to access some of the records contained within closed-case criminal investigative files. The bill will come up for a vote early next week.
Not sure what to say? Here's a quick primer:
HB 734 rolls back the law passed in 2021 (HB 2004) and enacted July 1, 2021, that created a new section of FOIA — § 2.2-3706.1 — to provide a pathway for the release of certain inactive criminal investigative files.
Berfore 2021, all criminal investigative files — whether open, closed, active, inactive — could be withheld in their entirety at the law enforcement agency’s discretion. The agencies didn’t even have to open the file; they could merely say they were exercising their discretion not to release them or anything in them.
Section 2.2-3706.1 now says they essentially have to open the file, look through the records in the file to see what may still be withheld but what else must be released. The section has many exemptions for the release, and early experience with the law has shown that these exemptions have been used, both frequently and quite expansively.
HB 734, even in its substitue form:
- Eliminates definition of “ongoing,” meaning there is no longer a distinction between active or inactive files, so all files and everything in them can be withheld.
- Secures access for victims or their families (if the victim is deceased) and to attorneys representing clients, but NO ONE else.
- Everyone else has to ask for files that can only be released in police or prosecutors' discretion -- in other words, the way the law was prior to the creation of 2.2-3706.1
The single biggest justification being advanced by the bill's proponents is that it will protect victims. In doing so, the proponents have said it will protect them from the trauma of seeing photos of their loved ones on social media.
But...CURRENT LAW ALREADY SAYS THAT THOSE PHOTOS CANNOT BE RELEASED TO ANYONE BUT THE VICTIM/FAMILY.
The way this bill protects victims is by never letting anyone else ever see anything about their case.
And let there be no mistake: NOT ALL VICTIMS FEEL THE SAME WAY. Victims and their families testified in support of the change last year, knowing full well that not just they but anyone would be able to ask. They testified against HB 734 this year, even though it gives them exclusive rights of access. And Virginia victims rights groups in Virginia have not testified in support of HB 734.
The rest of the bill is about attorney access to files to represent their clients, how the attorneys have to give the files back to the prosecutors/police after they use them (!) and creating a cause of action for a victim to block release of files the police/prosecutors decide (in the extremely unlikely event) to release records in their discretion.
It is all so much window dressing for what is the very bottom line: This bill will once again allow police and prosecutors to keep virtually all of their case files hidden forever.
No matter the crime, no matter how old the case, no matter the interest in accountability, no matter the historical signicifcance.
No matter if you're an attorney not representing a client but maybe doing advocacy work, no matter if you're a reporter, no matter if you're a family member or close friend of a defendant or witness, no matter if you're a family member not caught in the definition of immediate family in the bill, no matter if you're a hitorian, researcher or writer, no matter if you're wondering why you got arrested but then the charges were dropped.
All of those people can make requests now -- and have been without the sky falling -- but WILL NOT BE ABLE TO if HB 734 passes.
Senators should defeat this bill on the floor.
Read this story from last week and a follow up this week, and keep reading the newsletter below for more.
Thank you.
* * *
Megan Rhyne, executive director of the Virginia Coalition for Open Government, speaks out against Del. Rob Bell's bill that would roll back FOIA access to closed police investigative files.
WINA
WINA legal analyst Scott Goodman breaks down what Del. Rob Bell's FOIA bill will accomplish if it passes and says it's more about protecting police than protecting victims.
WINA
Gov. Glenn Youngkin’s office has refused to hand over submissions to the “tipline” he created for parents to submit feedback on state schools. Now his administration is also blocking inquiries into who made public records requests, how they were handled and how many the governor’s office received. At least one state agency and one state-funded college have also shielded the release of records on the governor’s behalf. Megan Rhyne, executive director of the Virginia Coalition for Open Government, says the administration and other state officials appear to be misinterpreting the Virginia Freedom of Information Act. “They're giving it a reading that says pretty much the governor is exempt from FOIA,” Rhyne says. “And that is definitely not how the law has been written or has been interpreted over the years.”
VPM
Cindy Mullins knows what some people think about her town. She knows that people in Wise County and beyond have watched Pound’s livestreamed town meetings, that they’ve seen the yelling and the name-calling, the council members walking out, the barely veiled animosity brewing between factions of residents and local officials. “That’s the only side of our town that a lot of people see, and unfortunately that’s the only side they’ll ever know,” said Mullins, who grew up here and was hired last year as the town’s crime prevention officer. She wishes that those people knew about the good things she sees: the initiative to collect supplies for foster kids, the police department’s community outreach, the way local businesses like the NAPA Auto Parts store support holiday events and car shows. Specifically, right now she wishes that members of the Virginia General Assembly would be less inclined to punish Pound for, as she put it, “the sins of the father” and more inclined to lend a hand. “At this point what we’re asking for is the chance to fix our house,” Leabern Kennedy, one of two current council members, told the House committee. “Our house is a hot mess, I’m not going to lie there. But we’re asking for the chance.”
Cardinal News
stories of national interest
"The university has no feeling one way or the other about the release of the information, but it has decided to defer to private contractors that want to keep the information confidential."
A few months into the COVID-19 pandemic, attorneys for the Reporters Committee for Freedom of the Press filed a Freedom of Information Act lawsuit against the U.S. Treasury Department on behalf of ABC News and journalist Ben Gittleson in an effort to answer an important question: How did then-President Donald Trump’s name end up on coronavirus stimulus checks sent to 35 million Americans? The litigation, which wrapped up last month, shook loose emails, memos and other correspondence between officials at the White House, Treasury Department and Internal Revenue Service. Last May, ABC News used those records to report on the high-level discussions that led up to the controversial decision to print Trump’s name on the relief checks that were distributed after the passage of the Coronavirus Aid, Relief and Economic Security Act, or CARES Act, in March 2020.
Reporters Committee for Freedom of the Press
Axios Austin is currently embroiled in three open records disputes with the University of Texas. University officials acknowledge they are deferring to business interests — instead of simply releasing information to the public. UT officials are refusing to say how much money the public university has agreed to pay one outside firm to assist in its ongoing law school dean search or how much it's contracted to pay another to consult on name-image-likeness issues involving student-athletes. "We always consider the fact that as state employees we are serving the public, and as such the public has an interest in all information pertaining to our business," UT open records coordinator Robert Davis told Axios. In these cases, Davis has said the university has no feeling one way or the other about the release of the information, but it has decided to defer to private contractors that want to keep the information confidential — rather than defer to the public's right to know.
Axios Austin
IN THE 2020 FISCAL YEAR ALONE, federal agencies received nearly 800,000 requests under freedom of information laws. The process is notoriously frustrating, marked by delays, denials, and appeals before documents are turned over (if they ever are). Even success can be exasperating—documents arrive in the form of large dumps, without any meaningful organization. All that work is time- and labor-intensive; for smaller newsrooms with fewer financial resources and less manpower, it may feel prohibitive. A recent foia workshop held by the Chicago Headline Club included a session called “More data, more problems,” aimed at finding new approaches to reporting with massive data dumps. New York University journalism professor Hilke Schellmann, along with senior research scientist Dr. Mona Sloane and computer science professor Julia Stoyanovich, led a team of graduate students at NYU’s Center for Data Science to develop Gumshoe, an artificial-intelligence tool that uses natural language processing to sort through large caches of text documents and categorize them by relevance to the journalist’s main topic of investigation, reducing the time needed to sift through everything. For instance, a target text may be Joe Biden’s inauguration speech and the label category may be “politics.” The model then computes the probability of the text being about politics, filtering out what pieces it understands to be irrelevant in comparison with the rest; in the case of the inauguration speech, that might mean marking sentences with “good morning” or “thank you” as not relevant to the address itself.
Columbia Journalism Review
For an hour and a half, El Paso County, Colo., Clerk and Recorder Chuck Broerman met with a small group of people that showed up at his office to talk about what they insisted were deep-rooted security and fraud problems within Colorado's election systems. Problems that Broerman, a Republican, and other election officials have repeatedly said don't exist. Among the visitors was 2020 election denier Shawn Smith of an effort called the U.S. Election Integrity Plan — a group that claims election irregularities and fraud in the 2020 elections in Colorado. One of their requests to Broerman during the meeting in May: give access to the county voting equipment and allow a third party to conduct "a forensic audit." Broerman declined, but he described to them in detail the redundant systems of election security measures to show why elections in his county are secure and reliable. The clerk said Smith, of Colorado Springs, then responded, "Clerk Broerman, we will either do this with you or through you." "I took that as a threat that if I didn't do that, that there would be repercussions for not doing what they wanted me to do," he said. That wasn't the last Broerman heard from this group or others. He, like other local elections officials across the country, have been facing increased pressure from people trying to cast doubt on the integrity of U.S. elections using unfounded claims of election fraud, spreading the lie that former President Donald Trump won the 2020 election.
Governing
