Sunshine Report for August 2022

Library of Virginia repository to house RPD records

Under a settlement agreement brokered by the attorney for several protesters who were tear-gassed by Richmond police during a June 2020 protest at the Lee Monument, body-worn camera footage, police radio traffic and written narratives will be available online for public perusal at the Library of Virginia. As part of the settlement, the police department also retracted a tweet sent out soon after the protest that said the release of tear gas was necessary because some police officers were cut off from others.

- M.R.

Looking ahead to 2023

A subcommittee of the FOIA Council met to review a bill referred to it by the 2022 General Assembly, carried by Del. Angelia Williams Graves at the request of Virginia Beach, that may come back in the 2023 session. FOIA already protects the names/addresses of those who complain about violations of local zoning and the state building and fire codes. The bill the subcommittee considered would add several local nuisance-related statutes to the list, meaning people who complain of their neighbor's inoperable car, tall grass, lack of swimming pool fencing, etc., can remain anonymous. Proponents say it will protect complainants from retaliation. VCOG pointed out it will also protect the cranks who waste government time and money by making unfounded, vengeful complaints.
Watch the video of the meeting here (approx. 1 hour long)

VCOG will be pursuing legislation in 2023 aimed at ensuring that when FOIA requesters ask to see copies of credit card or purchase card statements that the employee name on the statement is not redacted and the description (vendor) of the purchase remains intact. State agencies have been given advice over the past year or two by the Department of Accounts that names should be redacted and that purchase descriptions can be summarized.

National FOI Summit

As of July 1, VCOG became the administrator of the National Freedom of Information Coalition. In that role, VCOG will be lending support services to the organization and facilitating networking among state open government coalitions around the country. VCOG is also assisting with the planning of the annual FOI Summit: October 18-20 on the Whova online platform. The program is continually evolving, but you can register at any timefor the 12-15 sessions that are open to the general public.


The Richmond Police Department and the mayor's office chose not to release several records related to the claim that a planned mass shooting on July 4th was thwarted. The police department said they were choosing to withhold all records because they were part of an ongoing criminal investigation or proceeding. The department also told the Richmond Times-Dispatch that it would take an IT employee 12 hours to search for the records at a cost of $568.32. The mayor's office cited the working papers exemption for records in his control. "We are following the code of Virginia," the mayor said. The code of Virginia (FOIA) allows but does not require the mayor's working papers and correspondence to be withheld, meaning the office can choose to release records if it wants.

Refusing to proceed is a violation

A district judge in Loudoun County imposed a $500 penalty against the town clerk of Lovettsville for multiple violations of FOIA, including refusing to proceed with Caitlin Keefe's FOIA request for Facebook posts after Keefe said she was going to ask the FOIA Council for an opinion on the town's insistence on a $115 upfront deposit on the request. FOIA only allows a deposit for estimates over $200. The court also made findings on redaction, confirming that 2.2-3705.1(10) is not a catch-all privacy exemption that would allow the redaction of names and profile pictures from Facebook posts. And the judge found that the post-litigation production of records did not moot the case, nor did the exemptions cited at that point change the character of Keefe's original lawsuit. In imposing the fine, the judge said the clerk's refusal to proceed with the request may have been made in good faith, but it was still "clearly unlawful." Finally, the court took note of Keefe's use of an out-of-area lawyer and her refusal to negotiate a settlement as reasons not to award her the full amount of attorney fees that she requested.

Read the full opinion here

Open Government in the News

Charges were dropped against the Page County mother who said at a county school board meeting that she said she would "bring every single gun loaded and ready" to school if the district's COVID-19 mask-mandate was not lifted. Despite finding the woman's behavior "disturbing," the judge ruled the incident was not a "threat" under the statute.

A Portsmouth comedian performing under the stage name Cletus Kassady has been mining Portsmouth city council meetings for material and posting his own run-down of the meetings, complete with nicknames for council members and his own analysis of the discussion. “The jokes write themselves,” he said. “You gotta laugh to keep from crying.” 

According to records obtained through FOIA by The Free Lance-Star, the Spotsylvania County Public Schools Board has been spending more for meeting security than it has in previous years. In addition to the one sheriff's deputy posted to each meeting, the school board requested additional security for seven of 15 meetings held during the first half of the year. The board also spent more for general legal representation in the first quarter of the year than in the previous three years. Perhaps related to this last point, the division beat back a FOIA lawsuit brought by a former student who claimed, among other things, that the board entered into a closed meeting without following the proper protocol. The judge in that case said there was no evidence that board members acted willfully and knowingly and so there was no violation.
(VCOG NOTE: The willful and knowing standard is supposed to apply to the consideration of civil penalties, not to whether a violation occurred.)

The Richmond Fire Department released several records related to its response to the fire that destroyed Fox Elementary School on Feb. 11. Several redactions covered up names, email addresses and whole paragraphs. A cover letter accompanying the records said the redactions fell into one of three categories, but it was impossible to determine which exemption applied to which individual redaction.

A Loudoun County judge rejected an attempt by Attorney General Jason Miyares to close the courtroom during a hearing on whether Loudoun County Public Schools could stop the AG's investigation into how the district handled two sexual assaults by the same high school student. The judge ruled for the AG on the underlying issue, but only after first determining that the hearing would be open to the public, as would the hearing transcript.

A Carrollton resident filed a FOIA lawsuit against the Isle of Wight County School Board, saying the board discussed public business during a declared recess. The recess was called when the board attorney insisted that the board would have to explain what it was about to vote on, namely, an amendment to the superintendent's (who has since retired) contract. Perhaps trying to head off the lawsuit, the school board retroactively amended three of its spring meeting minutes to disclose the location from where the vice chairman participated remotely.

The Virginia Board of Local and Regional Jails refused to release copies of the plans Arlington County Jail and others have agreed to follow in the wake of prisoner deaths. The jail board said the plans could be withheld under the exemption for records prepared exclusively for a closed meeting.

A review of public records received by VPM News through FOIA showed that tax credits for contributing to foundations and private schools to fund tuition scholarships for low- and middle-income students have gone almost exclusively to wealthy individuals.

A Richmond Circuit Court judge threw out the defamation case filed against WTVR by Tonya Chapman, the current Portsmouth city manager and a former member of the Virginia Parole Board. Chapman claimed that she suffered "great humiliation" and injury to her personal and business reputations when the station ran a story on a report on the parole board by the Office of the State Inspector General. The sections in the report about her were in a draft report, though the station did not identify it as a draft, but were not included in the final report, she said, "because they were not true." The judge ruled Chapman had not shown the station acted with "actual malice,"meaning the station had no actual knowledge that its statements were false or were made with a reckless disregard for the truth.

After initially refusing to turn it over, the Norfolk Redevelopment and Housing Authority eventually gave The Virginian-Pilot a copy of a report it commissioned in 2021 that showed the agency suffered from several problems, including overstaffing and a diminished role in city redevelopment efforts. The release of the report preceded a vote by Norfolk City Council, prompted by reporting by Virginia Mercury, requiring NRHA and Hampton Roads Venture, a nonprofit, to use their "best efforts" to seek out Norfolk projects in the future. 

Norfolk had to reverse course on its plans to build a temporary casino inside Harbor Park stadium after it came to light that the plan would not meet the terms of the city's 2020 casino referendum. The Virginia-Pilot reported that the city changed the address of Harbor Park so that it would match the address approved of in the referendum. Described as a "boundary adjustment," the city eventually acknowledged that they were putting the brakes on their plans because of the address-change issue.

Some members of the Norfolk City Council came under fire when a public records request revealed that two of them, plus the mayor, traveled to Austin to meet with a potential arena developer more than a month before the city reported that it had been negotiating with the developer, who is among three groups to have submitted proposals to build the arena. While the travel of two council members was covered by the city, the mayor paid for his own trip and met with the developer separately so as not to trigger FOIA's meeting rules.

A Southampton County man filed a lawsuit against the selection commission of the local school board. Southampton is one of the handful of localities that appoint, rather than elect, school board members. State code requires a public hearing must take prior to the appointment and notice of the hearing has to be published in a newspaper well in advance. Tony Clark claims the public hearing was faulty because the hearing location in the newspaper notice was changed on the day of the meeting to a place approximately three miles away.

A Fairfax County judge granted a motion filed by The Washington Post and The Associated Press to access sealed records in the case of a man accused of killing his girlfriend's parents. The judge gave prosecutors and defense attorneys 10 days to appeal the order. They say release of the records could jeopardize the case.

A county registrar needed clarification from a state senator about whether she was allowed to accept an invitation to talk a civic group. Sen. Bill Stanley sponsored legislation earlier this year prohibiting local election officials from "soliciting, accepting, using, or disposing of any moneys, grants, property, or services given by a private individual or nongovernmental entity for the purpose of funding voter education and outreach programs, voter registration programs, or any other expense incurred in the conduct of elections. Stanley confirmed that the county registrar is a government employee, which "as part of her duties permits her to give informational talks with individual citizens or third-party non-governmental groups about voting laws."