Sunshine Report for April 2021



States of Denial

The National FOI Coalition (VCOG's Megan Rhyne is the vice president) released a report for Sunshine Week called "States of Denial," which gives an overview of the issue most state FOI coalitions single out as the biggest challenge they're currently facing: privacy. The report also gives a snapshot of the coalitions, like what kinds of services they offer and how permanent a presence they are. (SPOILER ALERT: VCOG is one of the longest-running coalitions and delivers all of the services mentioned!)

It started with a fully redacted report...

It's hard to know where to startt, well at least where to start with this month's goings-on. The story surrounding the Office of the State Inspector General's (OSIG) investigation into the Parole Board's process of releasing several prisoners, which had been simmering since last summer when the completed report substantiated complaints against the Parole Board but was completely redacted, broke wide open at the end of February and grew throughout the month of March.

After WTVR reported on the existence of a draft report that was more than twice as long as the final report and with more damning allegations in it, the administration turned its attention not to the Parole Board but to preparation of the OSIG report.

Virginia Governor Ralph Northam's spokeswoman, Alena Yarmosky, said in early March that the public needed to better understand "why and how the OSIG determined" the allegations in the draft report were insufficient to make it into the final report. WTVR then reported the draft version was sent to the governor's office a month before the final report was released. And several news outlets reported the existence of additional drafts on other released inmates.

On March 8, an investigator for OSIG, Jennifer Moschetti, filed a whistleblower lawsuit that alleged the governor's office had try to intimidate OSIG about the report and that the attorney general had redacted many of the facts from the report. Moschetti was placed on administrative leave and then fired. Before that, the governor's chief of staff, Clark Mercer, made an appearance at the governor's Covid briefing on March 9 to call the OSIG report biased and to criticize Moschetti for hiring an attorney who had his own political agenda.

Meanwhile, the board's vice chair resigned March 2 so she could become a judge, following the path of the former Parole Board chair and now Judge Adrianne Bennett; emails obtained through FOIA quoted Bennett, when still at the Parole Board, as telling a staffer to "Wave that wand of power, and let's cut them [parolees] loose"; and the current Parole Board chair, Tonya Chapman, sued WTVR for defamation, saying the TV station didn't clarify that the draft report was indeed a draft.

And on the last day of the month, the governor announced through a budget amendment, that $250,000 should be spent on an investigation -- conducted by someone of his, the AG's and the General Assembly's majority leaders' choice -- not into the Parole Board, but into OSIG.

I'm sure I've left something out, but, in general, what did I have to say about all this? Well, it's not a stretch to think a lot of it could have been avoided if the original, 6-page report was released in full to begin with last summer.


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And read this wonderful recap of the way VCOG began and what it's mission has been since Day 1, written by founding board member and editor emeritus of The Smithfield Times, John Edwards.

Sunshine Week 2021

VCOG celebrated Sunshine Week, March 14-20, with a series of podcasts on the legislative session. The first episode gives an overview to how VCOG approaches each session, the second details FOIA-related bills that passed, and the third reviews the FOIA-related bills that failed. The fourth and fifth episodes go into detail on two bills, HB 2004 and HB 2025. Listen to them all (each one is between 12 and 17 minutes long) from VCOG's website.

VCOG also spent James Madison's birthday, March 16, with students from the James Madison University advanced journalism class.

Virtually speaking

VCOG's Megan Rhyne popped up in three university Zoom classrooms in March, teaching classes on FOIA to journalism students at Mary Washington, JMU and VCU. She'll be participating with lobbyists for the Virginia Press Association at an event on April 15 sponsored by SPJ (register here) and with Alan Gernhardt and the state archivist for Maryland at the conference of the Mid-Atlantic Regional Archives Conference on April 12.

Open Government in the News

Mecklenburg County Circuit Court Judge J. William Watson Jr. reviewed seven sets of documents South Hill said were exempt from release as personnel records and concluded that some were and some weren't. In the process, the judge reviewed past cases and FOIA's history to determine that "personnel information" should be defined as "all information necessarily compiled and held by an employer, concerning an identifiable employee, which information directly relates to the commencement, continuation or termination of the employment relationship.”

Charlottesville city council members found themselves in a position frequented by citizens -- needing more information -- when staff presented various budget proposals for the upcoming year without providing in-depth detail about how funds beyond the costs of salaries and operating expenses would be spent.

The Suffolk School Board reached a settlement with one of its members in the second FOIA suit the member filed in the past several months. The settlement terms were not disclosed other than to say that the board would "comply with FOIA henceforth" and that it would pay $20,000 in fees to Sherri Story's attorney, Kevin Martingayle. The case centered around actions the board took against Story related to an investigative report about allegations of a hostile work environment against her.

The Isle of Wight Board of Supervisor also settled a FOIA case related to how the board gives notice of meetings. Notice was given for the meeting to start at 6 p.m. even though supervisors began  meeting in closed session at 5 p.m. The board agreed to pay the plaintiff's attorney, Martingayle, $20,000.

The Arlington County Commonwealth's Attorney announced she would institute a "Conviction Review Unit" to investigate claims of innocence and wrongful conviction. The announcement attracted VCOG's attention because of HB2004, which requires disclosure of at least part of a closed criminal investigative file. By moving these closed cases into an "under review" status, that might make the cases active again, thus making HB 2004 inapplicable.

Is he or isn't he? The mayor of Richlands, elected to a second term in November 2020, resigned his post on March 3. Two days later, however, he retracted his resignation. Only, he couldn't do that. The town attorney and other town council members conferred and ultimately agreed that the mayor's "previously tendered resignation is irrevocable under Virginia Law."

After a Gloucester woman died shortly after receiving the Pfizer vaccine for Covid, the state health commissioner told public information officers in an email that if reporters asked whether an autopsy was done to say that one wasn't needed "in order to ascertain whether the death was related to the vaccination." He later said he misspoke in that email, which was obtained via FOIA.

The Norfolk School Board held its first in-person meeting since the pandemic. The problem is that the public didn't know about it. Well, they told the public they were meeting, but not that they were doing so in person. Asked how the public would have known to show up for the in-person meeting, the board's chairwoman said she hadn't thought about that.

The Loudoun County School Board voted to censure a member for her activity on social media that the board deemed was exposing the board's private deliberations covered by the attorney-client privilege.

The Front Royal Town Council debated whether or not to move the public comment period to a time period earlier in the agenda, but also before the televised portion of the meeting. The measure was ultimately rejected.

Stafford County supervisors were taken by surprise when one of its members proposed a resolution to name a stretch of U.S. 1 through the county after a slain Virginia State Trooper instead of "Richmond Highway," as the board had previously agreed to. Supervisors said they were only given copies of the resolution before the meeting, which "didn't really help the process," one said, prompting the resolution's sponsor to respond, "Then perhaps we should take a 10-minute recess for you to read it. Meeting adjourned for 10 minutes."

Despite the fact that four people held in the Hampton Roads Regional Jail died the previous month, and despite the fact that an outside group had rescinded its accreditation of the facility, and despite the fact that two sheriffs who send inmates to the facility have stopped doing so, the HRRJ board met in mid-March and did not publicly discuss any of those developments.

A member of the Frederick County School Board accused three members of the county board of supervisors of holding an illegal meeting when the three gathered at a citizen's home to talk about the "Deep Equity Program" adopted by the school board and about the continued employment of the superintendent. The county attorney said the meeting was OK because one of the members was only a spectator and did not engage in the discussion.

A Rappahannock County Circuit Court judge dismissed the case brought by a county supervisor seeking reimbursement for the attorney fees he incurred as part of the so-called Bragg FOIA lawsuit. Ron Frazier was dropped from the suit but still said he spent over $19,000 in legal fees related to it.

Two women in Claremont said they were denied access to a town council meeting because they were not wearing masks. The pair said they have medical conditions preventing them from wearing masks, but they did have face shields they could wear. Nonetheless, the mayor would not let them in, which the pair speculated was because they were going to be critical of a local issue.

Despite making earlier denials that their offices were not using facial recognition software, both the Virginia Beach Police Department and the Virginia State Police backtracked after records obtained through FOIA showed that multiple officers in each office had signed up for an account with Clearview AI, a provider of facial recognition software.

Problems in Pound persisted as lawsuits were filed after one member resigned, giving the mayor a vote to name herself as the town's FOIA officer and to remove the town attorney. That attorney, who is also a town police officer, and others immediately filed a lawsuit that challenged the mayor's right to vote. The attorney also faulted the mayor -- in her role as FOIA officer -- for refusing to answer questions on the new town attorney -- who stepped down days after being appointed -- and allegations against him of soliciting of prostitution and the suspension of his law license.