Transparency News 7/25/16

The Virginia Supreme Court Friday struck down Gov. Terry McAuliffe's executive orders restoring voting rights to more than 200,000 felons, declaring that the 13,000-plus who have registered to vote must be stricken from the rolls. Justice William Mims filed his own dissent, saying he would have ordered the McAuliffe administration to release its full list of people affected by the restoration order as part of that debate. The governor has refused to release this list despite numerous requests, and despite the fact that spot checks have shown a number of mistakes.
Daily Press

Tensions flared at the joint Mount Jackson Planning Commission and focus group meeting this week when a question of a potential conflict of interest was brought up. All eyes were on Commissioner Robert Whitehurst Jr., who owns several hundred acres of land annexed by the town, when Planning Commission Chairwoman Bonnie Good on Thursday night asked any commissioners with a conflict of interest to identify themselves before the meeting. “I’m going to ask if there’s any official – which would be a commissioner, a council member or anyone else in the room – who is attending this meeting who has a conflict of interest or the appearance of such a conflict pertaining to any agenda items that we have for discussion or voting tonight, please identify yourself and describe your personal interest,” Good said. Neither Whitehurst nor any other commissioner identified himself or herself as having a conflict of interest. Whitehurst owns 136 acres in town that is zoned for industrial or business use, and 512 more for agricultural use that the planning commission could rezone. All the land could be used for a mega site for industrial use. Good said she made the disclaimer because she’s received multiple phone calls from residents angry with what they perceive to be a conflict of interest. She consulted with lawyers who told her the disclaimer would shield her and the commission if there were a conflict of interest at hand.
Northern Virginia Daily


National Stories
​

Supreme Court opinions are not set in stone. Justices keep editing them after they are issued, correcting factual errors and even misstatements of law. For decades, those changes were made largely out of sight. But in October, on the first day of the term, the court announced that it would start disclosing after-the-fact changes to its decisions. As of this month, the court’s website had flagged revisions to seven of them. The most extensive changes came on the last day of the term, in a blockbuster ruling that struck down two parts of a Texas abortion law. In the version of the majority opinion released on the morning of June 27, Justice Stephen G. Breyer wrote that “neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes.”
New York Times

Officials in the governor’s office violated Maine Gov. Paul LePage’s policy that prohibits state employees from using texts and other electronic messaging to conduct government business as they discussed denying public access to a special education commission meeting at the Blaine House. LePage officials say they adhered to the policy because they saved the messages and even turned them over to the attorney general’s office upon request. The administration has now updated its policy to lift the ban on texts, as long as they can be archived as public records.
Bangor Daily News

Criminal defense lawyers cannot crack open the Justice Department's how-to manual on navigating criminal prosecution discovery, the D.C. Circuit ruled.  The National Association of Criminal Defense Lawyers sent the U.S. Justice Department a Freedom of Information Act, or FOIA, request seeking disclosure of the Federal Criminal Discovery Blue Book in December 2012.  The group says the manual gives federal prosecutors advice on "how to handle different scenarios and problems" in discovery in criminal prosecutions. Susan Gerson, the Executive Office for U.S. Attorneys' assistant director in the FOIA/Privacy Act staff, determined in 2013 that the manual should be withheld in full. The agency invoked FOIA Exemption 5, which shields from disclosure certain agency records that would be privileged from discovery in a lawsuit with the agency. An unsuccessful appeal led the lawyers association to file suit in Washington, D.C. Federal Court.  A federal judge ultimately awarded the Justice Department summary judgment in 2014, agreeing that the entire book is protected as attorney work product. The lawyers association again appealed, but the D.C. Circuit affirmed the lower court's ruling Tuesday.
Courthouse News Service

As a body, Congress has exempted its office files from public records requests — and in fact, almost no regulations govern their record-keeping. Members of Congress need never open their files for examination — and if they do, the amount of material they make available, and the timing of when they do it, is entirely up to them. What’s more, when they do make their files available, classified material regularly turns up in it. Most congressional collections are boxes of paper, but as current members retire, more and more will be “born digital” and can include emails sent to and from a congressional office.
Washington Post



Editorials/Columns

You don’t have to be a Pokéman Go master to recognize that a public official with a smartphone can influence decisions from afar or circumvent the rules for transparent discussion and decision-making. Supervisors were briefed on FOIA upon assuming office, but the texting scenario had never come up. So they borrowed a page from Major League Baseball: they went to video. County Attorney Leo Rogers reviewed the text messages among the supervisors and watched video from the broadcast of the meeting on the county’s public access channel. He spoke to board members as well as the Virginia FOIA Council and Virginia Coalition for Open Government. His conclusion: the text message exchange did not constitute a FOIA violation.  The play stands. Despite Rogers’ convoluted explanation of how many board members it takes to violate FOIA in the digital world, supervisors did the right thing: they expressed regrets, made all communications public and pledged to conduct the people’s business transparently the next time around. That’s an endorsement of the guiding beacon of FOIA -- its intent.
Loudoun Times-Mirror

While we have come a long way since the first Freedom of Information laws and the static data dump, there is still more work to be done. The next piece of the puzzle is communicating the relationship between dollars spent and outcomes achieved. In other words, governments need to show constituents the "why" and "how" behind spending decisions, giving citizens the opportunity to weigh in on such critical questions as whether the public sector is acting with integrity, efficiently using public resources, creating policies designed in the best interest of the population, and wisely spending tax dollars.
Erin Latham, GovTech