Sunshine Report for December 2017


The Sunshine Report: Online
Transparency News from the
Virginia Coalition
for Open Government
December 2017

VCOG's annual conference

Images (courtesy of VCOG board member Lou Emerson) from VCOG's annual conference:

ConferenceCollageTop row, from left: Jeff Schwaner, reporter at The News Leader, receives his open government award for media for his work on a story that led to how the Department of Health Professions makes publicly known inspection violations against pharmacies and pharmacists; Jonathan Jones of the North Carolina Open Government Coalition and VCOG's Megan Rhyne compare and contrast the neighboring states' open government laws; VCOG board member Shelley Kimball discusses her research into the internal pressures frontline FOIA employees often face when handling requests for records.

Center: In a panel moderated by Bob Lewis (left), Jim Nolan, Michael Stowe and Robin McCormick discuss how they view government differently since leaving journalism for careers in government information.

Bottom row, from left: Carla Uriona and Gina Baldwin accept the citizen open government award for Progress Virginia, whose members set up video cameras in the main General Assembly committee meeting rooms to livestream proceedings there during the 2017 session; Hawes Spencer and VCOG board member Wat Hopkins break down the issues in and implications of the defamation case brought by a UVA official against Rolling Stone magazine; veteran media attorney Craig Merritt explains how and when lawyers get involved in media-government disputes over access.

Many thanks to the conference keynote speaker, Beau Cribbs, all of VCOG's wonderful sponsors and the more than 80 people who attended. Together they raised nearly $11,000 towards VCOG's annual operating budget for training, education and advocacy.


A job well done, Mrs. Everett

MeganMaria 2

VCOG's Megan Rhyne presents guest of honor Maria Everett with a bouquet Nov. 15 at a dinner celebrating Everett's tenure at the FOIA Council and with the House General Laws Committee. Legislators, agency heads, newspaper editors, colleagues and admirers gave individual toasts to Maria, virtually all with the common theme that she was a straight-shooter, honest, dedicated and fun. At VCOG's annual meeting, Everett was elected by the membership to serve on the coalition's board of directors come Jan. 1.

Fairfax judge: no declaratory judgment actions against government in FOIA

In pretrial motions held in a case brought by a group called Transparent GMU against George Mason University and the university foundation, a Fairfax County Circuit Judge ruled:
  • FOIA waives the state's and the foundation's sovereign immunity in cases seeking injunctive and mandamus relief, but not declaratory judgments;
  • The university is not required to produce the fundation's records, even if the foundation's president and CEO is also the university's vice president of university development and alumni relations and 
  • Whether or not the foundation is a public body subject to FOIA will be decided at trial in April.
VCOG filed an amicus brief on Transparent GMU's side on the specific issue of sovereign immunity.

Read the judge's order on VCOG's website

Early legislation

Two of the first four bills introduced for the 2018 General Assembly section would impact access to information.

HB1 would prohibit release of student directory information unless a student opts in with written consent. The proposal would apply not only to FOIA requests for this information, but also to school publication of information related to athletics and honrs.

HB4 would require the Supreme Court of Virginia's Office of Executive Secretary to  make its case management system searchable across all jurisdictions.


VCOG's annual chart of proposed legislation affecting access can be found here


A homicide victim with no name 

A little-noticed change to the laws of criminal procedure came to light in November when Daily Press reporters were not told the name of a 15-year-old juvenile murder victim.

The law, which was sponsored by Del. Jackson Miller and which went into effect July 1, changed the decades-long policy of law enforcement routinely providing the names of virtually all murder victims to say now that the names of juvenile victims cannot be released by the police without the written permission from the victim's next of kin.

Neither access advocates like VCOG and the Virginia Press Association, nor law enforcement advocates like the Virginia Association of Chiefs of Police, were aware of the bill when it came up during the 2017 General Assembly session. VCOG's Megan Rhyne questioned the need to change a working policy that results in keeping the public informed about crime in the community, and Dana Schrad of the police chief association wondered what public policy the new law was advancing.

Miller said the bill was prompted by a Fairfax woman's complaint that the Fairfax County police released the name of her 2-year-old daughter, who was killed by her husband.


House FOIA subcommittee
takes election hit

The 2017 elections for the Virginia House of Delegates wreaked havoc on the subcommittee that hears most FOIA bills during the General Assembly session. In 2016 and 2017, the subcommittee was made up of five Republicans (Delegates Rich Anderson, Jim LeMunyon, Randy Minchew, Roxann Robinson and Joseph Yost) and two Democrats (Delegates Betsy Carr and Jeion Ward) and was crucial in defeating bills passed by the Senate that would have made the names of police officers confidential and would have significantly limited what public employee salary data could be released. Carr, Ward and Robinson were reelected, but the other four members were not.

LeMunyon, who chaired the subcommittee, has also been leading the FOIA Council for the past several years, overseeing a three-year top to bottom review of the the open records and open meetings laws. He will step down from that position when his term as delegate officially ends.


Open government in the news

The Chesterfield school board backtracked earlier proposals to move the location of its work sessions. Work sessions were long held at the centrally located government complex in a conference room wired for audio recording. Citizens complained earlier this year when the board proposed moving the work sessions to another part of the county in a room not equipped for recording.

The Virginia Beach City Council voted to end its contract with a developer to build a sports and entertainment arena near the oceanfront. The developer disputed the city's claim that the it had not met certain conditions, but the city would not explain its decision saying the developer's information in the hands of the city was proprietary.

Two Charlottesville-area freelance journalists are suing the City of Charlottesville over what they say are law enforcement's improper denials of their FOIA requests for records related to the Aug. 12 Unite the Right rally. The records requested were withheld under exemptions for tactical plans that could endanger law enforcement personnel if made public. The journalists countered that such sensitive information could be redacted.

When Virginia Tech provost Thanassis Rikakis resigned his position in November, the university denied The Roanoke Times' request to see the offer letter that set the terms of Rikakis' employment. The university then changed its position, saying a reporter could review the document but could not make a copy of it.

The Democratic challenger in the election for the 94th House of Delegates district said she would go to court to obtain the absentee ballot envelopes sent in to the Newport News Registrar's office. Shelley Simonds, who has filed for a recount in the election she lost by 10 votes to Del. David Yancey, was challenging the registrar's refusal to fill her FOIA request for the envelopes, which contain voter signatures, until the Monday following Simonds' Thursday request. The registrar's office was to be closed on Friday for the Veterans Day holiday.

According to a university report provided to The Roanoke Times by a graduate teaching assistant accused of making threatening posts on Facebook, the comments were not actually made by him. The graduate student says it was a family member instead, but the report redacts the name of the person and the university would not acknowledge the report.

The Town of Purcellville was roiled in controversy last month when it was discovered the person hired to investigate the police chief had felony convictions in North Carolina for fraud and forgery and was in a relationship with a town employee also involved in the investigation. Later it was revealed that a company listed on a public record as one the town manager contacted when soliciting bids for the investigator's job was never actually contacted. Many of the revelations came after a emergency meeting was called for on a Friday night, only 14 hours before the announced start time on Saturday mo.

For the first time, the Pentagon released base-by-base data on sexual assault claims. The Norfolk Naval Station had more than all bases here and abroad, with 270 reports in the 2016 fiscal year.

Prince William County Circuit Court Judge Steven Smith granted the school superintendent's motion to dismiss a case brought by the school board chair to gain unfettered access to the archived email of the chair's predecessor. “In my mind, the law is clear that an individual board member can’t go off rogue, and go out on their own to ask for this,” Smith said.

According to more than 3,000 pages received by the Chronicle for Higher Education, the University of Virginia Police Department was tipped off to the torch-lit march at the Rotunda three days before it occurred.

Veteran Daily Press reporter Dave Ress has written a book about the history of how citizens have demanded access to government records, from as far back as the post-Civil War era. "Municipal Accountability in the Age of Reform: The Gadfly at the Counter, 1870-1920" notes such influences as the rapid growth of cities and the related separation from annual town meetings.

A visiting judge hearing pretrial motions in the fraud case against Portsmouth Councilman Mark Whitaker ordered the public and press out of the courtroom approximately 45 minutes into a proceeding to consider Whitaker's motion to dismiss the charges. Retired Hampton Circuit Judge William Andrews III rejected Whitaker's motion nearly three hours later but the reasons why remain unknown.


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