Sunshine Report for August 2016

The Sunshine Report: August 2016

FOIA Council updates

At the July 18 meeting of the FOIA Council’s committee on meetings, committee members delayed taking any action on a proposal to require local governments to post meeting minutes online within three days of their final approval. When local government representatives worried about smaller localities without the ability to quickly or easily access their websites, VCOG suggested eliminating the three-day time. Two of the committee members (Kathleen Dooley from the City of Fredericksburg and Shawri King-Casey from the Attorney General's Office) however, expressed concerns that the proposal was an unfunded mandate and was an attempt to codify what should be left up to best practices. Committee member Marisa Porto of the Daily Press disagreed. The committee is short two members (due to term limits, two members stepped down July 1), so the three remaining members agreed to postpone a final recommendation until the committee seats are filled.

The council’s workgroup on trade secrets has been unable to reach consensus on whether a single exemption could be crafted to encompass the many separate exemptions. The Virginia Press Association has advocated for a definition of trade secrets and proprietary records to address, in part, the uncertainty created by the Supreme Court of Virginia’s interpretation of “proprietary records” in the context of a FOIA request for a former academic’s email while at the University of Virginia. Despite concerns about confusion, state agencies feel more comfortable with the status quo, according to FOIA Council Executive Director Maria Everett.

The FOIA Council issued an opinion to Daily Press reporter Travis Fain that concluded the list of felons whose voting rights were restored by order of the governor in April was not a working paper of the governor’s office, but that it could be properly withheld by the State Board of Elections.

Fain and other reporters requested the list from the governor but were told it was being withheld under the working papers exemption. When reporters asked the SBE for the list instead, the agency responded that the list was exempt under § 24.2-404 as a voter registration record.

The council said there were arguments both for and against calling the list a record created by or for the governor’s personal or deliberative use (the definition of a working paper in FOIA). However, once the record was shared with outside parties (the SBE), the exemption no longer applied since it was no longer for his own personal or deliberative use.

On the other hand, the SBE was authorized by the Election Code to withhold the entire list even though most people on the list had not yet registered to vote. The entire list would be part of the “voter registration system,” which is broader than just the list of individual who have actually registered, the council found.

The governor’s office said the opinion was “wrong,” and continued to withhold the list from disclosure because the administration was “constantly deliberating” it.

The opinion was rendered prior to the Supreme Court of Virginia’s 4-3 ruling striking down the governor's order. The majority opinion noted the issue of standing was complicated by the failure of the governor’s office to release the list, and in dissent, Justice William Mims said he would have remanded the case to gather more evidence on standing, which would necessitate the release of the “full database of individuals with restored voting rights.”

FOIA and the courts

Scales-----Loudoun County’s top prosecutor is suing Gov. Terry McAuliffe to force him to release the names of the felons whose civil rights have been restored.

-----The Supreme Court of Virginia heard arguments July 19 about whether the Virginia Constitution allows state legislators to withhold emails and other documents when they’re subpoenaed in a lawsuit.

-----A judge in Pittsylvania County said “the court [felt] hoodooed by the county” in terms of the availability of minutes taken by the county’s Agricultural Development Board. In litigation dating back more than a year, county plaintiffs said they were told minutes of meetings held in April did not have to be disclosed and did not exist because they did not have to be taken (FOIA says advisory committees don’t have to take minutes). But the county released the minutes months later as part of another FOIA request. Judge James Reynolds pointed out that even if minutes are not required, if they have been taken, they were public records that should have been released. Reynolds issued a writ of mandamus for the board to keep and produce minutes to the public regularly for the next 18 months. The judge sided with the county on all the other alleged violations of FOIA’s meetings provision the plaintiffs raised.

-----An Albermarle County man is suing the Charlottesville City Council in federal district court, alleging violations of the First and 14th Amdendments, over the council’s order to have him removed from a city council meeting when he made comments that he believed Muslims were “monstrous maniacs.”

Albemarle County released records detailing the hourly rate being charged by an outside attorney to represent the county in a dispute over a parking garage. In response to a request by local radio host Rob Schilling, the county initially released the total amount paid by the county, but it refused to say what the hourly rate was, citing the FOIA exemption for attorney/client communication. Schilling and his attorney threatened legal action, backed by a commitment by the National FOI Coalition’s Knight Litigation Fund to cover the suit’s costs, prompting the county to relent and release the complete record. The county released the record first to The Daily Progress with a cover sheet saying the records were being released “due to the persistence of inquiries” about the rate.  It was nearly 24 hours later when the county sent the same record to Schilling and his attorney, but without a cover letter.

Stay up to date on access
Sign up for VCOG's daily listserv on access and First Amendment news from Virginia and accross the country. It's free!

Please join us September 22 at Rocketts Landing in Richmond to celebrate VCOG’s 20th anniversary dinner. In addition to recognizing founding and former board members, we will also pay tribute to Ginger Stanley, who served on VCOG’s board for all of its 20 years until she retired as head of the Virginia Press Association July 1.

Purchase tickets, become a sponsor or make a donation by starting here (follow the links to the selection and payment pages).

And thank you to our two major sponsors so far:

Threshold-logo  RoanokeTimeslogo

Officers in touch

VCOG has launched a listserv for state and local government employees who have been designated as their entity’s FOIA officer, pursuant to HB 818. The listserv — currently an announce-only and not interactive — is administered through the Library of Virginia and will be used in the near term to advise subscribers of upcoming meetings and training opportunities. The listserv will eventually allow for members to ask questions and share tips and experiences with one another. The subscriber list was copiled from the contact information the officers shared with VCOG through a query on Google Forms.

Also in response to HB 818, localities have been posting a FOIA rights and responsibilities page that sets out the basics of filing a FOIA request with the entity, including contact information and an explanation of the most frequently cited exemptions.

You say "slush fund," I say "strategic investment fund"

Former UVA Board of Visitors Rector Helen Dragas caused a ruckus when her term on the board expired and she penned an op-ed in the Washington Post
alleging that the board quietly maintained what she called a “slush fund” of more than $2.3 billion. Current members of the board defended the fund, saying it has never been kept secret. “It’s been a very transparent process,” said Patrick Hogan, UVA’s executive vice president and chief operating officer. “This has all been out in the open with the board.” Dragas, meanwhile, insists talks about where the fund originated and how funds in it should be spent were improperly held in closed session.

Open government in the news

Members of the Richmond Retirement System advisory committee resigned in protest over what they said was blocking of information to the panel by the system’s executive director.

Questions arose over the sudden resignation of the Dumfries town manager but Mayor Jerry Foreman refused to elaborate or discuss what was said in closed session. When asked what was meant when he said the council would “proceed as directed,” Foreman said he could not comment further and that it meant “proceed as directed.”

Developer Lucas Ames and SmartCville have have teamed up with Albemarle County to launch an app to visualize how the money a citizen pays in taxes is used to fund county services. “As more communities open budget data, it could foster cross-municipality research that analyzes fiscal strategies,” Amesb said.

Faced with the revelation that a member of the Loudoun County Board of Supervisors was texting members of the county’s Transportation and Land Use Committee during the committee’s deliberation over a land use application, the county attorney’s office had recipients of the texts read them into the meeting minutes. Delegate Randy Minchew, acting in his capacity as a lawyer for the applicant, suggested the texts were an illegal electronic meeting under FOIA but the county attorney — after talking with the FOIA Council and VCOG — concluded they did not constitute a meeting.

The nomination of Sen. Tim Kaine as the Democratic candidate for vice president raised the profile of the Kaine Email Project @LVA, a searchable online archive of the former governor's and his administration’s email correspondence. After receiving approximately 1.3 million records from the administration, the first-of-it-kind archive is continually sifting through and posting them in batches.

The Richmond City Council and the mayor’s office reached an agreement to post documents and contracts for major city projects on a centralized website. The proposal applies to any capital project with a budget of more than $5 million. The biggest concession, according to the proposal’s sponsor, was the elimination of a public comment forum. While the public can still share its thoughts on a plan, comments will not be published online.

Norfolk is considering a proposal, backed by the local commonwealth attorney, to release certain police body camera footage. Greg Underwood said he supports releasing videos of police shootings once criminal investigations are complete and his office has either prosecuted or cleared the officers.

Instead of holding a public presentation on alternatives for relocating the general district court in Albemarle County, County Executive Tom Foley said the presentations would be shared with each affected jurisdiction’s governing body in closed session.

An employee of the Virginia Inspector General’s office and two independent contractors filed a whistleblower complaint that alleges many deficiencies in the investigation of Jamycheal Mitchell's death in a Portsmouth jail cell. Among the allegations raised by employee Cathy Hill was one that FOIA requests related to the incident were mishandled by denying that records existed when, in fact, they did.

NFOIC comes to D.C.

The National FOI Coalition (NFOIC) will hold its next annual summit in Washington, D.C., Oct. 7-8, at the Dupont Circle Hotel. This year's conference is being hosted by the D.C. Open Government Coalition and will feature timely panels on federal and state access issues. The public is welcome and encouraged to attend. Keep checking this page for programming and registration updates.
If you find VCOG's services and resources useful,
We need your support!
Your dues and/or donations go straight
toward VCOG's modest operating budget
and are 100% tax deductible.

Our IRS W9 form can be found here,
and feel free to ask for copies of our most recent IRS 990 or financial review.