Sunshine Report for August 2015

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The Sunshine Report: Online
Transparency news from the
Virginia Coalition
for Open Government
  August 2015

VCOG on the road

VCOG traveled to Reston to appear as a guest on Del. Ken Plum's local cable television program.

To schedule FOIA training or a presentation by VCOG, contact Megan Rhyne at

Coming up

VCOG'S next annual conference is Nov. 12 in Fredericksburg. Keep your eyes peeled for registration, sponsorship and content updates.

FOIA Council updates

The FOIA Council welcomed its newest member at its July 22 meeting. Marisa Porto, vice president of content at the Daily Press, was appointed by Speaker William Howell to take the expiring term of George Whitehurst. Porto, who served on VCOG’s board, is also the current president of the Virginia Press Association.

The subcommittees studying FOIA’s records and meetings exemptions met in July. The records committee took additional testimony on the working papers exemption. Del. David Ramadan was in attendance to make the case that the exemption allows university presidents to remain unaccountable to the public. In response, an association of university presidents presented a letter urging the council to let them keep their exemption because of overall fear that information would be taken out of context or used in inappropriate ways. Though not mentioned by the presidents’ letter, council member Tim Oksman of the Attorney General’s office said the exemption was necessary to protect academic freedom.

The records subcommittee recommended not removing the exemption for university presidents but agreed to continue looking at the remainder of the exemption, particularly the portion is used to shield any and all correspondence in a named official's office.

The meetings subcommittee agreed to continue studying a proposal by Daily Press reporter Dave Ress to limit the personnel discussions exemption so that the reviews of high-ranking officials (e.g., county administrator or city manager) be public.

An informal workgroup trying to restyle the many exemptions for so-called proprietary records into one comprehensive exemption is still haggling over the exact wording the new exemption would take.

The most recent formal opinions issued by the council can be found on VCOG’s website: on fees and on meeting minutes.

Court rules against
family in FOIA case

A Virginia Beach Circuit Court judge dismissed a case against the Virginia Beach Police Department brought by the family of a man police say committed suicide. The family sought the records related to their son’s death, but the department refused, saying it had a blanket policy (albeit unwritten) not to release records related to suicides. The city said it feared the family could take records to the media.

VCOG filed a friend of the court statement in favor of the family, whose attorney, Kevin Martingayle said he disagreed with the decision: “This is an example of how the government gets it wrong and sees the citizen as the enemy.”

Martingayle said the family may appeal.

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Public Comment

cropped-man-with-mouth-taped-shutIt was a tough month for citizens attempting to speak at their local government’s public meetings. FOIA does not proscribe rules for accepting public comment. The First Amendment, however, forbids government from discriminating against viewpoints or speakers.

It started in early July when a Danville City Council member took the unusual step of coming down from the dais to address the council during the comment period. Larry Campbell said he’d been informed by the Virginia Fusion Center that a “Confederate-inspired hactivist group” had threatened to release damaging information about him and possibly physically harm him if he spoke against the Confederate flag at public meetings.

While that case did not involve government action, that was not the case in Portsmouth, Petersburg or Greene County.

In Portsmouth, the city council hammered out a new public comment period policy cutting speaking time from five minutes per speaker to three minutes. Though there was some grumbling about this change, most of the displeasure was aimed at the fact that the council held this discussion in a closed-door meeting. The council came out of the closed meeting, announced the change and then voted to approve it.

In Petersburg, the ACLU filed suit against the mayor for his refusal to let an individual who owed the city money speak at meetings until he paid up. The debt was related to the citizen’s unsuccessful run for the local school board. The city allowed him to speak after he paid the fine, but the city attorney indicated that others could be barred from giving comment if they owe the city money.

Not to be outdone, Greene County passed a sweeping public comment period that included everything from allowing the board of supervisors chair to refuse comment from certain people or on certain topics to admonishing citizens not to speak on issues that could be discussed in closed session under FOIA. You can read the full policy on VCOG’s website.

Open government in the news

After four years, the battle over sectarian prayers at Pittsylvania County Board of Supervisors' meetings has come to a close. A U.S. Supreme Court ruling that clergy-led prayer was permissible did not make the county’s practice of supervisor-led prayers constitutionally acceptable. The county has paid over $74,000 in fees to county resident Barbara Hudson’s attorneys from the ACLU, but $7,500 in fees was still in dispute. . . . Pittsylvania County residents who lost a FOIA case against the county’s Agricultural Development Board appealed the general district court ruling. A hearing in Pittsylvania County Circuit Court is scheduled for Aug. 6. The residents say they were locked out of a the building during a closed meeting and not invited back in until the entire meeting was over. . . . The Louisa Historical Society has received a grant from the Bama Works fund of Dave Matthews Band to compile records on enslaved workers in the area. The group is focusing specifically on slaves at plantations within the Green Springs District of the county between 1700 and 1875. . . . Chesapeake lost library records spanning five decades during a computer server upgrade in 2013 but did not report the problem to the state until June 2015. The destruction occurred when a contract worker entered an incorrect command as part of a system upgrade. Even the disaster recovery files were destroyed. . . . An effort by the James City County Planning Commission to compile and archive meeting minutes in a searchable database hit a snag after it was discovered that the minutes for more than 20 meetings had never been approved by the commission. The commission approved the minutes at its July 1 meeting. . . . Proving that FOIA isn’t just for media, and not even just for citizens, the Virginia State Police filed FOIA requests with the City of Virginia Beach seeking records related to their investigation of the relationship between the city mayor, manager and several prominent developers. . . . An analysis by the Virginian-Pilot showed that the City of Virginia Beach has shorter and more efficient meetings than many of its counterparts in the region. The secret is placing the bulk of agenda items on a consent docket, which does not provide for member discussion or citizen input. The city council agrees in advance which items will go on the agenda; an item’s placement on the agenda will be delayed until consensus is reached. . . . The City of Richmond launched a data portal in early July that puts city spending at citizens’ fingertips. brings together disparate data sets previously scattered across the city’s website. Richmond agency heads briefed on the initiative were told that all eyes would be on them. . . . The Prince William County Board of Supervisors went into closed session to discuss whether it should give itself a raise. An Attorney General’s opinion says that the personnel exemption cannot be used when members talk about themselves or each other, but many local governments disagree with that interpretation. Two supervisors walked out of the closed session in protest. The board ultimately voted against the raise. . . . The Hampton Roads chapter of Code for America held a “hackathon” with the Library of Virginia. The targeted data set was the Kaine Email Project. Participants began by devising new entry points for researching the collection, such as visualizations and network maps to show communication channels within the former administration. . . . A self-styled police watchdog who got a $75 traffic ticket from a Virginia state trooper in 2012 is now being sued by the trooper for $1.3 million. The driver obtained the dash-cam video of his arrest and posted it on YouTube along with comments the trooper claims are false, particularly that she “molested” the driver. . . . Hanover County’s assistant county attorney reminded members of the county planning commission to exercise caution when attending informational meetings about proposed conditional use permits or rezoning requests. The attorney’s opinion was that when more than two members of the commission planned to be in attendance, it needed to be announced publicly. “It’s not my role to say if this is a good idea or a bad idea,” he said. “It’s your responsibility to make sure that you comply.” . . . In June, a potential bidder for Henrico County’s new emergency-responder radio system complained that the county’s RFP was so specific as to be seemingly written for one company: Motorola. The bidding period closed July 24, and while government can withhold received bids from disclosure until a contract is awarded, the county refused to say who submitted bids or even how many bidders there were.
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