Transparency News 9/18/15

Friday, September 18, 2015
 

State and Local Stories

VCOG's annual conference is
November 12. Click here for details.

The Supreme Court of Virginia has ruled that the state is not required to release the manuals used in the execution of prisoners, an opinion that gives governments' tighter control over security-related information while raising alarms among open-government advocates who fear it could have broader ramifications. In a majority opinion written by Justice Cleo E. Powell, the court found that the Department of Corrections is not required to release redacted versions of current and prior execution manuals because the documents are covered by a public-safety exemption that allows records such as architectural drawings and operations manuals to be kept confidential for security reasons. Because the language of that exemption does not explicitly require any non-exempt portions of the manual to be released, the court ruled, the state can keep the entire manual secret. Del. Scott A. Surovell, D-Fairfax, who brought the case, submitted a FOIA request for the material last year amid debate over how the state carries out the death penalty. Surovell, who said he filed the request because he felt the legislature wasn't being given complete information about lethal injections and drug stockpiles, called the court's ruling "disappointing."
Richmond Times-Dispatch
“Citizens should be wary of this opinion because it sets up the possibility that a record that is undeniably a public record can nonetheless be withheld if they throw in some bit that could be exempt,” said Megan Rhyne of the Virginia Coalition of Open Government. Judge William C. Mims, who dissented, likewise warned during oral arguments that future government documents might include a “poison pill” to shield them from FOIA. An attorney for the Department of Corrections responded that it was up to the General Assembly to change the law to address that concern. An advisory council is reviewing exemptions in the state’s FOIA.
Washington Post
I have a dim sense of a tide turning in Virginia’s FOIA jurisprudence. Going back several years, the Supreme Court’s rulings, as a whole, came down firmly on the side of those who advocated openness in government. When a governmental agency that denied access to records, a citizen who litigated the withholding enjoyed a decided advantage in court. That advantage remains, in the form of the liberal interpretation that courts are supposed to give to FOIA, including narrow construction of exemptions. And yet, earlier this year, the court dealt open-government forces a blow in Fitzgerald v. Loudoun County Sheriff, holding that a record of a criminal investigation of a death doesn’t lose its exempt status after the investigation reveals that the death was a suicide. Today, the justices again side with a governmental entity. Today’s decision is Department of Corrections v. Surovell. The appellee is a state Delegate who sought various records relating to Virginia’s execution chamber outside Jarratt, in Greensville County. The department resisted, noting among other things that the records might endanger the security of the prison, its inmates, and its staff.
Steve Emmert, Virginia Appellate News (third item)
Read the opinion/dissent on VCOG’s website

A forum in Pearisburg that organizers intended to be low intensity and low confrontation took a turn Tuesday night when Republican activists squared off with the Democratic and independent candidates for the 21st District Senate seat. The event — hosted by pipeline opposition group Preserve Giles County — got off to a fraught start when incumbent Sen. John Edwards asked organizers to stop Giles County GOP Vice Chairman Zack Thompson from filming the proceedings on his phone. Thompson protested. “What would be the objection to filming a public forum? If it’s a public forum, and the people have called it?” Audience murmurs suggested a divided opinion so Preserve Giles coordinator Rick Shingles put it to a vote. The majority voted no filming. Edwards, D-Roanoke, didn’t speak or explain his request. His campaign manager said afterward that Thompson has tried to film Edwards before and argued he’s essentially a tracker for the campaign of Republican Nancy Dye — who turned down an invite to Tuesday’s forum, citing scheduling conflicts.
Roanoke Times

About 20 western Virginia high school students were suspended Thursday after holding a rally to protest a new policy banning vehicles with Confederate flag symbols from the school parking lot and refusing to take off clothing displaying the symbol. Christiansburg High School Senior Houston Miller, who organized the rally, said he doesn’t believe the administration should be able to tell students what they can wear or put on their vehicle. He said he doesn’t intend to back down and is encouraging more students to show their support for the flag Friday. “I feel like I should have the right to wear whatever I want, and I’m standing up for this,” Miller said.
Daily Progress

An Alexandria County prosecutor has been appointed to investigate two complaints lodged against Loudoun County Sheriff Mike Chapman. The Washington Post reported today that Loudoun Commonwealth’s Attorney James E. Plowman requested the independent review after receiving allegations of illegal activities from two of Chapman’s political rivals. Circuit Court Judge Jeanette C. Irby last month appointed Alexandria Commonwealth’s Attorney Bryan L. Porter to handle the cases. One complaint was filed by former Sheriff Stephen O. Simpson, who Chapman unseated in 2011 and who is running as an independent against the Republican incumbent this year. Simpson claims that Chapman failed to adequately identify donors in campaign finance disclosure filings. On Aug. 20, Ron Speakman, who also ran for sheriff four years ago, filed a complaint alleging that Chapman illegally obtained and published private emails between Eric Noble, then a LCSO major, and Ricky Frye, a retired LCSO major who was working as a contractor for Fairfax County, as well as Noble's private email address.
Leesburg Today

Greg Smith, superintendent of Richmond County Public Schools publicly addressed accusations from Supervisor John Haynes Jr. concerning the National Defense Cadet Corps and Junior Reserve Officer Training Command program. The launching point for this reply was Haynes’s Freedom of Information Act request. Smith supplied all of the school board members with a packet containing documents including official correspondences, applications and government documents.
Northern Neck News

Suffolk City Council brought a surprise end to the city manager search on Wednesday with a unanimous vote to offer the job to Patrick Roberts, who has served in the position on an interim basis since May. “We would miss an opportunity had we not put this man in this job,” said Councilman Roger Fawcett, who brought up the topic under the new business portion of the agenda. Some members of City Council said they were caught off guard by Fawcett’s motion. Vice Mayor Leroy Bennett said he had “flipped through” the resumes but “did not really take time to read them,” thinking he could do so at a later date. Mayor Linda T. Johnson, the second member with Bennett of the two-person committee charged with reviewing the applications, said she had been through the applications in detail. Councilman Mike Duman said he was “caught a little off guard” by the motion and wanted time to do research on compensation before a salary was negotiated. Some members also praised what they called the transparency of the decision. Tim Johnson said after the meeting there had been no discussion whatsoever behind closed doors. “That’s transparency at its best,” Fawcett said.
Suffolk News-Herald


National Stories
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One of the country’s top medical examiners told Fox News Thursday he did not think it was inappropriate for an Illinois coroner to talk with reporters in the midst of an investigationinto the mysterious death of a veteran police officer. “That makes sense that the coroner can speak out,” said Dr. Michael Baden, the former New York City chief medical examiner. “It’s his judgment whether it’s appropriate or not.” As police remained tight-lipped about the exact manner of the officer’s death, it was commonly speculated and reported online that Gliniewicz was shot in the head or in the back of the neck. Rudd told Fox News he felt it was necessary to independently speak with the media to clarify that Gliniewicz was actually shot in the torso.
Fox News


Editorials/Columns

Some folks around the state are not happy that Gov. Terry McAuliffe has gotten into the habit of using a state airplane to make personal trips, such as a recent jaunt to the Hamptons to visit with the Clintons. Understand, the taxpayers aren't picking up the tab; McAuliffe is careful to reimburse the state for any expenses incurred on personal trips. But that doesn't satisfy his critics, and on a certain level that's understandable. It's not just about the money; it's about the perception. At a time when many citizens feel an enormous disconnect with their elected officials, perhaps politicians should avoid the kind of conveniences and perks that set them apart from the constituents who vote for them.
Daily Press (second item)

Hiding from the press appears to be a parlor game in Portsmouth, where members of the media are treated with suspicion. Somers reported recently that the mayor and two of his allies on the council have refused to return phone calls for two months. The new city manager has so far declined to give the newspaper an interview. Recently, Mayor Kenny Wright and his pals on the City Council instituted a rule that would fine elected officials and staff members if they revealed what went on in closed meetings. Chilling. This paranoid, secretive behavior should alarm all open-government types. Portsmouth isn't the Soviet Union. Yet. Public officials there are paid with tax dollars and owe their allegiance to the people. Not some iron-fisted shadow government within the city. Open the windows and doors, and let the sun in, Portsmouth. Or are you afraid the last few competent officials will make a run for it?
Kerry Dougherty, Virginian-Pilot

Admittedly, even though I spent some summers as a life guard in my youth, I know nothing about competitive diving or swimming. But I do know about open government and the state laws that deal with it. And through the years, I’ve learned that I can usually figure out when government officials want to make a decision a done deal without constituents knowing it was going to happen. That’s what happened in Stafford. And some supervisors pretty much acknowledge it. I  have spent much of my journalism career dealing with open government issues and Freedom of Information laws, which call for transparency except for rare exemptions narrowly defined. I’ve seen local and state officials create ways to make things happen without transparency. From what I know now, these actions by the Stafford Board of Supervisors are one such case. And look at what a mess it has made. In an attempt to stifle public involvement, it has instead stirred up controversy.Some supervisors have pointed fingers at others for the bitterness this has created. But the supervisors have no one to blame but themselves.
Dick Hammerstrom, Free Lance-Star

A little bit of free society got put to a vote in Giles County this week and free society lost. The iron fist of tyranny isn’t going to slam down in Pearisburg as a result, but what happened there Tuesday night is still outrageous enough that for the second time in two days we must take out our referee’s whistle and throw a penalty flag in a local political campaign. The offenders this time: state Sen. John Edwards, D-Roanoke, and a group opposed to the proposed natural gas pipeline, Preserve Giles County. The background: The group invited the three candidates for the state Senate district that runs from Roanoke to Giles to come speak about the pipeline. Edwards and independent Don Caldwell showed up; Republican Nancy Dye did not — citing a scheduling conflict, which also conveniently let her avoid talking about a dicey subject on which she has thus far skillfully avoided taking a position. However, the vice chairman of the Giles Republican Party — Zack Thompson – did show up and proceeded to start capturing video of the event on his phone. Edwards objected, and asked organizers to make Thompson stop filming. Our reporter, Alicia Petska, described the rest:
Roanoke Times