Sunshine Report for August 2020

The Sunshine Report, August 2020

Reporters and editors, you have one more week to turn in your nominations for VCOG 2nd annual media awards. We can't wait to celebrate your good works this past year, as you covered COVID-19, local governments, court cases, protests, economic development and much, much more. Rules and submission requirements can be found here.
Advocacy. Litigation. Education. FOIA Council. Hailing Heroes. And of course COVID-19. It's been a busy year here at VCOG. Read all about our work in our 2020 annual report.
VCOG has been working with several advocates and lawmakers to develop legislation that would open up access to police disciplinary files and also to criminal investigation files at some point after a case has been completed. The General Assembly's special session convenes Aug. 18.
VCOG joined the Virginia Press Association, the National FOI Coalition and two dozen media outlets across the country in support of Courthouse News Service in its case against the clerks of Norfolk and Prince William County circuit courts over same-day access to new court filings. A U.S. district court judge ruled for CNS in February, saying there was a qualified First Amendment right of access to the files. The clerks are appealing the ruling to the 4th U.S. Circuit Court of Appeals.
Read the brief on VCOG's website.  



Open Government in the News

The University of Virginia First Amendment Clinic sent a letter on behalf of Charlottesville Tomorrow to the school system in Albemarle County over its waiver of FOIA's response-time deadlines during the COVID-19 crisis. Like most other localities, the county adopted an emergency ordinance to preserve "continuity of government," but unlike most others, the Albemarle ordinance allows the 5-working-day deadline to respond to FOIA requests to be ignored, even if it's possible to access electronic records that are not sequestered within shuttered government buildings.

The Office of Inspector General released its report on whether the Parole Board followed proper procedures when recommending that a man convicted of killing a Richmond police officer should be released from prison. The report found that "allegations  . . . are substantiated," but the overwhelming majority of the report was redacted. The inspector general justified the redactions by saying that the Parole Board was excluded from FOIA and "has not waived its FOIA protections."

A member of the Suffolk Schools Board won a FOIA lawsuit brought against her fellow board members. A Suffolk Circuit Court judge ruled after a four-day trial that the board members did not provide proper notice of public meetings, motions to go into closed session were too vague and post-closed session certifications were "not sufficient." The judge ruled for the board, however, on issues of closed-meeting topics and the polling of members' intended votes. The judge ordered the board members to read FOIA and receive training on the law.

On the other hand, an Accomack County judge ruled against the mayor of Onley in his FOIA lawsuit against his fellow town council members. The mayor complained of improper notice of a special meeting as well as a deficient vote to go into a closed session and talking about improper topics once inside the closed meeting.

What a difference an "s" can make. The Department of Corrections rebuffed the Virginia Mercury's FOIA request for agreements with the source of the state's lethal injection drugs, saying the new law requiring disclosure of this information was prospective only. The language in the new law applies to contracts Virginia "enters" now that the law exists rather than "entered into" before the law went into effect. The bill's sponsor, Sen. John Bell (D-Broadlands), confirmed his intention for the law to not be applied retroactively.

Three members of the Albemarle Economic Development Board resigned in protest over a new law requiring EDA members to file detailed financial disclosure statements. The law, sponsored by Sen. Mark Obenshain (R-Harrisonburg) and Del. Michael Webert (R-Marshall), would have given "internet trolls" a "field day," according to one resigning member, while prompting an observer to speculate that the new law would make it more difficult to have "quality people" serve on EDAs.

Demonstrators in Norfolk staged a sit-in at city hall to protest the police department's refusal to release records detailing police use of force. The police chief conceded that releasing aggregate data just once a year was inadequate and said he ultimately welcomed more disclosure.

Douglas Wilder, the country's first Black governor, accused the Library of Virginia of racism for its failure to make his gubernatorial records open and accessible to the public. The library acknowledged that the processing of Wilder's records had "fallen off the radar," and in just over a week after the charge set in motion a "herculean effort" to complete work on the papers by Jan. 1

The Town of Dumfries collected $24,000 in FOIA fees during its most recent fiscal year, an increase of 944% from the $2,500 collected the year before. By comparison, the amount neighboring towns in Prince William County and the county itself collected were all relatively flat from year to year. The Potomac Local also noted that Dumfries said it would cost $400 for the online news outlet to see the salaries of the town's 20-plus employees.

The Martinsville city attorney refused to produce records related to his drafting of a letter on behalf of a city council member ordering a local business man to stop making public comments about the council member. The attorney also refused to release minutes of a meeting on July 14, where the attorney's letter was discussed, saying that the "minutes of that meeting have yet not been produced . . . nor have they been approved by council." FOIA does not require that minutes be approved before they are released.

The City of Richmond agreed to pay a contractor $1.8 million to mobilize men and equipment and perform five days worth of work to relocate 11 Confederate statues owned by the city, according to contracts and invoices received by WTVR through a FOIA request. 

A Waynesboro school board member had an interesting take on why public comment would not be taken during a meeting to review school reopening plans "The issue with public comment tonight is that, by law, we're required to give a three-day notice to be able to have a meeting with public comment." VCOG is unaware of such a requirement.

Virginia State Police were slated to respond last week to a judge's finding that its Unite the Right operations plan it released was overly redacted.

An unpublicized workgroup in Arlington began discussing whether or not to encrypt additional channels on the police department's radio communications.

The mayor of Front Royal argued with his fellow town council members over whether the interim town manager should be able to speak for longer than a citizen -- who is also running for mayor -- was allowed to when that citizen made critical comments. The mayor said the guidelines for citizens and the manager should be the same.

A member of the Fairfax County Board of Supervisors launched a website that aggregates all the county's public safety data, including the county police department's annual reports, reports by the police auditor and arrest and traffic citation dates for 2019.

Radford University released the police report about the incident that led to a freshman being arrested last September before being found dead in his jail cell early the next morning. The university had earlier refused to release the campus police report of the incident on the grounds that there was an ongoing investigation by the Virginia State Police.

The Winchester Town Council acknowledged that it had convened three closed sessions in the past several weeks in violation of FOIA. In all cases, the council went into closed session without first voting in open session (which was being broadcast to the public) to do so and without voting after the closed session to certify it.

A review by The Virginian-Pilot of localities in its coverage area found a wide disparity in the way in which governing boards were soliciting public comment during the public health emergency. Before social distancing rules were put in place, people in most localities could speak at some point and talk about anything, even things not on the agenda. Now, when many meetings are being held electronically, officials have clamped down on when citizens can speak and what topics they can speak on.

The release of footage from cameras worn by on-duty police officers became a frequent topic of discussion this month, from the refusal of Fredericksburg and Roanoke to release requested video, to release of footage in Charlottesville. Fairfax County confirmed that an officer charged with assaulting a Black man did not turn on his body camera during the incident. And in Portsmouth, body-cam footage figured prominently in the dispute between an attorney and Sen. Louise Lucas (D-Portsmouth) over the senator's actions at a rally in protest of a Confederate monument.

When being turned down by the Virginia State Police when it requested copies of complaints against a police officer documented on a video calling himself a "f*****g specimen" and threatening a Black driver with an "ass whooping," the Virginia Mercury noted that Virginia is one of 23 states where records of police misconduct are effectively confidential.
Contact VCOG:  •  540-353-8264