Transparency News 4/26/16

State and Local Stories

Norfolk school officials say they can’t retrieve at least four years of academic information from an old database system, including details about current students and courses linked to state exams. But a former division test coordinator, Bill Reed, disputes that, saying officials either don’t know how to get it or they didn’t properly manage the data system. “And if that doesn’t happen, that speaks to people not being as attentive or competent as they should be,” he said.
Virginian-Pilot

All three men running to be Norfolk’s next mayor pledge to bring greater transparency to city government if elected. That’s a popular promise for candidates, but history has shown campaign talk doesn’t always translate into the real thing. An instructor for a national journalism group said it’s easy to see why people running for office invoke the term. “Transparency implies I’ve got nothing to hide,” said Al Tompkins, senior faculty member at the Poynter Institute. “It’s a word that’s easy to say but very often inconvenient when you’re elected.” Tompkins said it’s inevitable that officials will do things they don’t want the public to know about – at least not right away. So the real test, he said, is whether people are open when it’s not in their immediate interest.
Virginian-Pilot

One of the state agencies charged with investigating the death of Jamycheal Mitchell in his jail cell in Portsmouth last year did not interview court employees responsible for his case because the state Attorney General’s Office intervened on the employees’ behalf. Another agency conducting a separate investigation into Mitchell’s death, the Office of the State Inspector General, also did not interview the court’s employees because it believed — based on secondhand information it said it received from the jail where Mitchell died — that the Attorney General’s Office would block its access. Face-to-face interviews and reviewing original documents are essential in conducting thorough investigations, he said, and state code permits that access. The code “doesn’t say the inspector general should have access to the documents and people that the Attorney General’s Office thinks are appropriate,” G. Douglas Bevelacqua, a Virginia inspector general over behavioral health and developmental services from 2010 to 2014, said. “You want to review original source documents, and you want to interview everyone with relevant information.”
Richmond Times-Dispatch

An assistant chief medical examiner in Richmond has posted an unusual YouTube video in which he asserts improprieties and wrongdoing at the Office of the Chief Medical Examiner.  Dr. Kevin Whaley’s 20-minute video alleges fraud, the sale of donated human brains to the National Institute of Mental Health, poor leadership, incompetent pathologists and bias toward law enforcement, among other things. “Everything in this presentation is true to the best of my knowledge, and I would gladly swear to it under oath,” Whaley says at the start of the video, posted March 31. He said he has been an assistant chief medical examiner for 10 years. The video has been viewed by many Richmond-area defense lawyers.
Richmond Times-Dispatch

Portsmouth Councilman Bill Moody is suing the city. Council fined Moody $1,500, citing a recently adopted rule involving confidential city information. Moody’s action filed Thursday in Portsmouth Circuit Court. The lawsuit claims violations of his right to free speech, as well as Virginia laws governing open meetings and freedom of information. Moody says the city overstepped its bounds when he was fined in January over a Facebook post.
WAVY



National Stories
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A federal appeals court has upheld a New York law requiring out-of-state lawyers practicing in the state to maintain an office there. The law does not violate the privileges and immunities clause, the New York-based 2nd U.S. Circuit Court of Appeals ruled on Friday. The law requires a physical office for out-of-state lawyers, but not for in-state lawyers, who can use their homes as offices. New Jersey lawyer Ekaterina Schoenefeld had claimed the requirement infringed on nonresident lawyers’ right to practice law in the state and violated the privileges and immunities clause. The 2nd Circuit cited a 2013 Supreme Court decision that held Virginia does not violate the U.S. Constitution when it bars out-of-state residents from accessing state records through its Freedom of Information Act. The Virginia law had an incidental effect on the ability of outsiders to profit from information contained in state records, but there was no proof the law was intended to give Virginia citizens a competitive advantage, the Supreme Court said.
ABA Journal 

Bipartisan bills aimed at strengthening the openness requirements of the Freedom of Information Act are heading into House-Senate negotiations, but not without exposing some long-standing trepidation inside the Obama administration. Though White House spokesman Josh Earnest has said the president would sign the Senate version of the bill passed last month, the measure the House passed in January has some stricter requirements that need to be negotiated. Nothing is guaranteed: In the past Congress, FOIA reform bills also cleared both chambers, but then-Speaker John Boehner, R-Ohio, declined a floor vote. In addition, a coalition of 47 transparency advocacy nonprofits last month wrote a letter to the White House expressing displeasure with some Justice Department objections to the earlier bills, which only recently came to light under—of all things—a FOIA request.
Government Executive

Declassification of national security information should be pursued on a par with classification, according to a Department of Defense directive that was reissued yesterday. "Declassification of information will receive equal attention as the classification of information so that information remains classified only as long as required by national security considerations," said DoD Instruction 5200.01, dated April 21 and signed by Marcel Lettre, the Under Secretary of Defense for Intelligence.
Secrecy News

The Montana Supreme Court hears oral arguments Wednesday in Jon Krakauer v. State of Montana and Commissioner of Higher Education Clayton Christian. Investigative journalist and bestselling author Krakauer is seeking records related to the decision to vacate former University of Montana Grizzlies quarterback Jordan Johnson's expulsion after multiple university proceedings found him guilty of rape. "What's important to understand about the national question is there's an ongoing and pretty heated debate between journalists and schools and institutions of higher learning over what information is public versus what is private," said UM journalism associate professor Lee Banville, who teaches media law. In their brief, defendants argue they cannot release student records without jeopardizing their federal money, and they say the law prohibits the systematic disclosure of educational records without consent. The U.S. Department of Education has the authority to cut off federal funds — to the tune of $263 million a year — if it determines the Montana University System is violating FERPA. However, the plaintiff argues FERPA does not prohibit the release of records, and that in fact, it "specifically permits disclosure upon a valid state order."
Billings Gazette


Editorials/Columns

The board of visitors of the University of Mary Washington recently approved a new policy to stop investing endowment funds in fossil-fuel stocks. The board members seem pleased with their decision, notably because of the public-relations benefits of UMW being recognized as an environmentally conscious institution. In fact, Rector Holly Cuellar said that it’s “important that this university continue to be a leader on the sustainability front and that we remain vigilant in seeking additional ways to demonstrate our commitment to the environment.” The board might have demonstrated that vigilance three years ago when students at at the university began calling for the divestment of such investments. But that board would not permit the Divest UMW student group to speak at board meetings. The group eventually staged a sit-in outside the office of President Richard Hurley’s office. That was halted when state troopers arrived to oust the students. Three were arrested, though those charges were later dropped. The reason these students could be ignored until recently is because Virginia state law doesn’t require the boards of visitors to hold public hearings or public comment time at their meetings. Just about every other public board or body in the commonwealth must do that.
Free Lance-Star

When the Virginia chapter of the American Civil Liberties Union sides with Republicans in the General Assembly against Democratic Gov. Terry McAuliffe, you can’t help but take notice. That’s exactly what happened in last week’s veto session in Richmond when the House of Delegates took up McAuliffe’s amendments to a bill that would have restored the use of the electric chair as a means of carrying out the death penalty.  Whatever your opinion of capital punishment is, the imposition of total secrecy is completely counter to the concept of open, transparent government. The public needs to be completely certain that business conducted in its name and on its behalf is above board and carried out properly. And there is no more serious business than when the state takes the life of a heinous criminal.
News & Advance

In my long and often unsuccessful effort to persuade high schools not to keep secrets, April 8 was a good day. Before I had to call Mamaroneck High School to ask, as I do every year, for its statistics, I saw for the first time it had posted everything I needed on its website. Mamaroneck is the suburban New York campus where I got the idea for what is now called the America’s Most Challenging High Schools list, the 2016 version of which was recently released by The Washington Post.  Under the Freedom of Information Act, public schools have to give me the data. The private schools can ignore me, but gradually they have been embracing the Internet-era view that useful information belongs to all.
Jay Mathews, Washington Post