Sunshine Report for April 2016


The Sunshine Report: Online
Transparency News from the
Virginia Coalition
for Open Government
April 2016


VCOG blog

FOIA Council update

The FOIA Council’s subcommittees studying FOIA’s records and meetings exemptions will ramp back up soon. On April 11, the meetings subcommittee will meet at 10 a.m. and the records subcommittee will meet at the same day at 1:30 p.m. The meetings are both in the 6th Floor, Speaker’s Conference Room, at the General Assembly Building at the public is both welcome and encouraged to attend.

The agendas for both meetings can be found here

jTxo5jKLcIt ain't over 'til...

At the General Assembly, one must wait for the Fat Lady to sing, because just when you think it’s over, it’s not.

As reported in the March Sunshine ReportSB 494 is a bill that seeks to correct the Supreme Court’s ruling last September that threw into doubt the duty of government to redact records. As chair of the FOIA Council, Del. Jim LeMunyon (R) and the rest of the council directed staff to prepare a global fix for the problem, one that did not attempt to break new ground but instead to put FOIA back in the same posture everyone thought it was prior to the Supreme Court’s decision. The Department of Corrections testified against SB 494, patroned by Sen. Scott Surovell (D), but the bill passed both chambers with just three votes against it. An identical bill submitted by LeMunyon passed with unanimous support of the House and Senate.

But it wasn’t over.

Gov. Terry McAuliffe (D) offered what his office called amendments to SB 494, but these were no mere amendments. The version offered reduced a 24-page bill with scores of technical changes throughout all of FOIA, down to six pages and only a proposed three-word change in one exemption only, plus a directive for the FOIA Council to further study the bill.

The Capitol press were on it quickly, getting word from the governor’s office that the amendments were needed to keep FOIA costs from getting out of control and also because the original bill was using “a sledgehammer solution to a tadpole problem.”

Many VCOG supporters called their senators to ask them to reject the governor’s amendment (THANK YOU!), but before that could happen, the governor said he’d withdraw the amendments.

But it’s still not over. The governor’s spokesman Brian Coy said the decision gave the administration more time to try to work out an agreement with legislators.

The governor has until April 10 to act on both Surovell's and LeMunyon's bills.

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Sunshine Week

swlogo2Sunshine Week is an initiative launched by the American Society of Newspaper Editors in 2005 to promote a dialogue about the importance of open government and freedom of information. Sunshine Week always brackets March 16, which is James Madison’s birthday. Madison is considered the patron saint of open government, not leastways because of quotes like, “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives” and “The advancement and diffusion of knowledge is the only guardian of true liberty.”

This year Sunshine Week spanned March 13-19. VCOG held Google Hangouts to update folks on access bills at the General Assembly. Megan Rhyne also spoke at the Torch Club of Fredericksburg and penned two columns for two papers (see the VCOG Blog, left).

As usual, the press carried the Sunshine Week banner highest, with stories on FOIA bills in the legislature, FOIA fees, the email traffic behind a controversial school decision, the prevalence of ticket-only state-of-the-city addresses, gaining access to red light camera data from the vendor and a mini-audit of a local government.

The Daily Press ran a series of stories analyzing court case data to ascertain trends on how criminal cases are prosecuted or not prosecuted. The paper used a database produced by a computer coder who wrote a program to go through the online data one case at a time to scrape the relevant data points. The Office of Executive Secretary (the courts’ administrative arm) is in litigation with the Daily Press over direct access to the database through FOIA.

In addition to getting the bad reporters-motions policy thrown out in Prince William County (see below), the Associated Press conducted a nationwide audit on how available the email communications and calendars and schedules of state governors and lawmakers were. Virginia's top Democrats and Senate Majority Leader Tommy Norment, a Republican, provided the calendars but not the email. The Speaker of the House, a Republican, said the request for a week of his calendar was too vague to be considered a legitimate records request.

Next year’s Sunshine Week will be March 12-18. It’s never too early to start planning!

Open government in the news

The U.S. Education Department Office For Civil Rights took UVa to task Aug. 31, 2015, in a 39-page letter for the way handled reports of sexual violence within the fraternity system at the school. The governor and both Virginia Senators lobbied to have the letter corrected. And that was the last anyone heard of the letter until the Washington Post caught wind of it and got a copy of it though FOIA.

The Roanoke County Police Department said it would not release the names of officers involved in the fatal shooting of a black teenager saying “there is no discernible benefit to exposing officers to unwarranted speculation while the facts related to the incident are yet to be fully known.”

The Daily Press newspaper in Newport News was recognized by Editor & Publisher as an honorable mention to the “10 newspapers That Do It Right” feature published by the magazine. The DP was recognized for its eight-part series “The Virginia Way: Politics, Power and Profit.”

Hopewell City Council member Tony Zevgolis called an emergency meeting in early March to discuss whether or not to appeal a circuit judge’s ruling against the city for holding a closed meeting to select who would be the city’s next mayor. Zevgolis had to adjourn the meeting, however, for lack of a quorum. Two weeks later, the council voted 6-1 to appropriate more than $14,000 in funds to pay the attorney fees for the citizen who brought the suit challeng the meeting. Zevgolis cast the lone “no” vote and continued to insist that the council did nothing wrong, as did Mayor Brenda Pelham, though she voted to reimburse Janice Denton’s attorney fees. In a feature by the Progress-IndexDenton said she respected all of the council members. “I would just like for them to not only hold it [the mayor’s election] out open for us to hear their discussions.”

The Spotsylvania Board of Supervisors approved a resolution offering its “sincerest regrets” to an elementary school teacher who was heckled during her comments before the board at a recent meeting. At the meeting, the teacher said she didn’t know her salary or how much she paid in taxes. Someone in the audience then yelled out, “You shouldn’t be teaching if you don’t know anything.”

The Portsmouth City Council voted 3-3 on a motion to end the practice of fining council members $1,500 for speaking publicly about closed-session topics. The motion failed on the tie vote.

The press and the public still aren’t allowed to access the electronic case data that populates a database with information on how cases are disposed of, including names and races of the defendants, but thanks to a budget amendment, the General Assembly has made it so the Criminal Sentencing Commission can access it. The amendment states the data “shall not be subject to the Virginia Freedom of Information Act,” that the commission can’t publish any identifying information about defendants, and it must use the data only for “research, evaluation, or statistical purposes,” much like what the public and press want the data for, too.

On remand to the Fairfax County Circuit Court, Judge Randy Bellows ordered the Department of Corrections to turn over some of the requested records related to the manufacturers’ installation instructions for use of the electric chair, but says the other records still in dispute do not have to be released. The order is part of the ongoing DOC v. Surovell case that led to the ruling on redaction (see box, left)

An Associated Press reporter uncovered a strange rule at the Prince William County Courthouse when he went in search of any motions filed in the case of a man charged with killing a county police officer: a five-year old policy, signed by now-retired Chief District Judge Wenda Travers, stipulating that reporters could look only at warrants and complaints. “They can’t see the jail card or any other document,” the policy stated. Reporter Matt Barakat asked the chief clerk of the district court about the policy. The clerk contacted the current chief judge, Will Jarvis, who promptly tossed it.

A coalition of current and former, Republican and Democratic state senators filed a motion with the Virginia Supreme Court related to the redistricting case asking the court to expand the so-called legislative privilege. The privilege already extends to conversations between a legislator and his or her staff, other legislators or the attorney general’s office, but they would like it to extend to conversations with outside consultants as well. The outside consultants in this case are those who helped draw the district maps that are now being challenged.

A meeting in Petersburg on community empowerment was canceled March 21 due to what city officials described as excessively harsh statements made by some city critics.

The Hampton City Council voted to change the name of a bridge leading to Fort Monroe from the Martin Luther King Jr. Memorial Bridge to the Dr. Martin Luther King Jr. Bridge in Honor of Frank Baker, Shepard Mallory and James Townsend. Action on the name change was not on the agenda and a vote was called for before the public comment period. Citizens who attended in hopes of weighing in during the comment period on the possible renaming instead used their time to criticize the process by which the vote was taken.

The Harrisonburg Police Department has refused to release information, including body camera footage, related to the shooting death of a 23-year-old man by city police officers. The commonwealth’s attorney has cleared the officers involved of any wrongdoing, but the city says the body camera footage and the officer’s names are personnel records.

When the Department of Behavioral Health and Development Services issued a preliminary report detailing the timeline of the death of Jamycheal Merritt while in custody at the Hampton Roads Regional Jail, it did so with all names — even a judge’s name — redacted. In a letter to the Virginian-Pilot, the redactions were justified because of the personnel records exemption. The department later released an unredacted a week later.

The Richmond City Council rejected a proposal that would have required departments to post online documents related to high-dollar capital projects.