Sunshine Report for December 2021

Public comment on Supreme Court's redistricting page found lacking

On Wednesday, Nov. 24, the Virginia Coalition for Open Government filed the following letter with the Supreme Court of Virginia regarding the inadequate repository of public comments filed about the court's duties in the redistricting process. 

Good morning --

The Virginia Coalition for Open Government writes to urge the Supreme Court of Virginia to provide a modernized document management system for receiving and cataloging public comment on the redistricting process.

Many models for providing indexed, automatically updated document repositories, from free or low-cost services like shared a folder on a Google Drive, Dropbox, Sync, Evernote, Scribd, and others, to more sophisticated applications like those already in use by Virginia's Regulatory Town Hall.

These systems and others like them provide an easy-to-follow timeline of who has submitted comments and when, making it much more useful to citizens to zero in on comments of importance to them, without the endless scrolling of the current single-PDF system.

Further, the current approach being employed on the Supreme Court's website is one that must be manually updated, and -- based at least on today's schedule -- not on a consistent or timely basis.

As of today, Nov. 24 at 11 a.m., 25 hours have passed since the last update (Nov. 24 at 10 a.m.), leaving the public to wonder whether anyone has submitted comments at all, much less knowing whether a response to those comments is warranted.

This is unchartered territory, and it is understandable that some things must be created and tweaked on the fly. This happened when the pandemic began and the Virginia Department of Health has continually adapted its system to provide as much timely information as it could and to be responsive to the public's requests for additional information and/or different ways of presenting it.

The redistricting process has a finite window in which to operate, though. There is no time to waste. It is imperative that the public and the press has up-to-date and easily parsed information about who has submitted comments and when.

There is intense public interest in the process. Please dedicate time and resources immediately to ensure easy access to maximize transparency during that process.

Very truly yours,
Megan Rhyne
Virginia Coalition for Open Government, Executive Director


Divided FOIA Council endorses three proposals for 2022 legislative session

The FOIA Council met Nov. 10 to discuss three proposals, ultimately giving its endorsement to all of them. VCOG supports all three.

The first is a bill to reform the way FOIA fees are assessed, limiting the rate of pay that can be charged and making a certain number of requests free. The final vote was 10-3. Del. Danica Roem will carry the bill in 2022. 

The second is a bill to provide access to completed police disciplinary investigations, and that passed on an 11-2 vote. The bill will presumably be carried by Del. Mike Mullin.

And the third, which also passed on an 11-2 vote, is the rewrite of the electronic-meetings rules VCOG has worked on with a group representing the press and local government. A patron to carry the bill has not been confirmed, but Del.-elect Elizabeth Bennett Parker, who called for a relaxation of the current rules is a strong possibility.

- M.R.

This month on Substack...

VCOG's Megan Rhyne wrote on the Substack newsletter about how rigid adherance to the text of FOIA fails to give credit to the law's policy statement. Read "Spirits dancing on the head of a pin."


VCOG's long-serving board member -- and one-time board president -- Craig Fifer was married to Yael Krigman in a small ceremony at the Virginia Executive Mansion shortly before Thanksgiving. We wish Craig and Yael many trips around the sun together.


Open Government in the News

Emails obtained by the Loudoun Times-Mirror showed the sheriff telling school district officials that his office would not provide uniformed deputies for security at two school board meetings in August, despite threats some board members received. A chaotic board meeting in June became a national symbol of an aggressive tone taken up at meetings by some parents upset by various issues, including Critical Race Theory and mask mandates. In response, the board largely shut down the public's ability to attend the public comment portion of the meetings. That action is serving as a basis for a petition to remove the board chair. The meetings opened back up to the public at the end of November.

The Front Royal town attorney refused to release a report on how the town's department of planning and zoning handled the mayor's request for an exception to certain development rules. He said the 20-page report was protected by the attorney-client exemption and could not be released without authorization from the town council.

According to data obtained by the Daily News Record through FOIA, over half of the major institutional jails run by the Virginia Department of Corrections are overcrowded. By October, there was an average of 4,538 inmates per month in local facilities who should have been in the care of the Department of Corrections, according to data provided through the Freedom of Information Act request.

The Suffolk School Board voted to appeal a judge's ruling that the board violated FOIA by not allowing a citizen -- or anyone else, for that matter -- to be in the same room with board members during a board retreat. The board insisted that providing a room from which to watch a video feed of the meeting was adequate. A woman who refused to leave the meeting room filed the suit with the help of Kevin Martingayle, a Virginia Beach attorney.

Body camera footage round-up

Though the Richmond Police Department had not yet responded to a FOIA request for body camera footage, Richmond prosecutors announced they would not press charges against a woman who was filmed by two bystanders being pinned to the ground by two RPD officers. Officers said the woman was interfering with the arrest of another woman and had caused her own injuries.

Police in Isle of Wight County confirmed they had bodycam footage of ex-Windsor police officer Joe Gutierrez -- who has been named in an excessive force lawsuit by a Black Army lieutenant -- using force another time against an elderly Black driver. The county, however, "elected to withhold release of this information."

Police in Radford was quick to release the bodycam footage taken during a traffic stop of Del. Chris Hurst after a passenger in Hurst's car was seen tampering with campaign signs of the candidate who ultimately defeated Hurst in the Nov. 2 election.

The sheriff's office in Frederick County also quickly released body camera footage recorded by an officer called to an election polling location. An officer was called to the scene where a political activist said she was aggressively approached by a county supervisor who would not stop taking pictures of her after she asked him not to. Correspondence later obtained by The Winchester Star through a FOIA request showed the supervisor suggesting that the board of supervisors and the sheriff meet in private -- so that the matter doesn't get "blown up" -- to discuss how to handle election situations.

Using FOIA, WAVY obtained copies of checks for $15,000 each made payable to the 10 people who claimed their rights were violated when they were arrested in connection with the vandalism of Portsmouth's Confederate monument in 2020.

The University of Virginia School of Law First Amendment Law Clinic is suing the U.S. Justice Department on behalf of the law school's business reference librarian over access through the federal Freedom of Information Act to non-prosecution agreements the department signed with corporate defendants from 2015 to 2019. 

A federal lawsuit challenges a development deal involving the city of Danville, a developer and a realtor who is also a city council member. The property owner claims he was told the buyer was negotiating directly with the city and must remain anonymous until the city announced the sale. The property owner also said he was required to sign a non-disclosure agreement that forbade him from asking about the buyer or discussing details about the possible sale.

A three-judge panel of the Virginia Supreme Court agreed to grant the appeal made by the Daily Press and The Virginian-Pilot over a circuit court judge's ruling to close the public and press out of a bond hearingfor a Newport News police officer charged with murder. A different circuit court judge vacated the press restrictions originally imposed in a case involving a juvenile charged in a shooting incident at a high school. The same judge also allowed the press into an evidence-suppression hearing in the case of a Newport News police officer killed in the line of duty.

Members of the Prince William County Racial and Social Justice Commission filed FOIA requests against one another seeking correspondence between members about a town hall organized by a frequent critic of the county board of supervisors. The chair of the commission criticized a fellow member for "constantly" filing FOIA requests that she said disrupted the panel's work.

Martinsville began a series of meetings, titled "conversations about reversion," that are limited to just 12 citizens who must register in advance. At its first meeting, where only one person was in attendance, the assistant city manager (who is also the city attorney) talked for longer than the scheduled length of the meeting. He and the lone audience member then argued over various points about the reversion process, including when the city made a questions-and-comments email address operational.

Courthouse News posted a photo of the $2.4 million check it received from Virginia to reimburse the news service's attorney fees from its successful federal lawsuit against Norfolk and Prince William County over same-day access to electronic case filings. The 4th U.S. Circuit Court of Appeals ruled for Courthouse News earlier this year. Meanwhile, the news service filed another lawsuit in federal district court, this one against Karl Hade, the executive secretary of the Office of the Executive Secretary of the Supreme Court of Virginia, and the clerk of the Prince William County court, over the online case filing system that is available to lawyers but not to the public or press. Hade said limited access was necessary “to further a legitimate state interest in protecting court records from the ease of exploitation that a limitless internet database would provide.”

A vote on a proposed apartment complex in Albemarle County had to be postponed when it was discovered the required public notice for the zoning decision was not followed. A spokesperson for the county said, “We felt like on the fly, without time to do a full proper analysis, it was better to defer and make sure that everyone felt really strong about being in compliance with the requirements for advertising then to go forward and have [the public hearing] not count or have that question hanging.”

In response to complaints about a proposal to change the time the Warsaw Town Council begins its meetings, the town's mayor said, I will tell you the citizenry has been a little bit lazy. They’ve always been lazy. They don’t want to come. They don’t come until there is a specific issue that makes them move to come… But there are many, many, many nights that there is no one in those seats.”

The Newport News City Council passed up another chance to vote on recording their work sessions. According to the Daily Press, Newport News is the only locality in Hampton Roads that does not record its work sessions. "It shouldn't be a controversial issue," said a proponent of recording sessions. 

FOIA litigation round-up

A Fairfax judge ruled against the county's school system and its lawyers who tried to force the return of unredacted attorney bills disclosed to a parent in response to a FOIA request. Deborah Tisler shared the documents with another parent, who redacted student names and then put them on her website. The school district had also asked the judge to prohibit the documents' publication. Calling the district's requests “about as much a prior restraint as there ever could be,” the judge ruled in the parents' favor. The school district said it is still deciding whether to appeal.

A Lovettsville resident filed a FOIA suit against the town over the town's demand that the resident pay a $115 deposit. FOIA allows for a deposit on requests estimated at more than $200. During the initial back and forth of the request, the resident said she would be sending the correspondence to the FOIA Council, to which the town clerk responded, “Due to your threat to take this up with the FOIA Board, the Town will no longer address your emails regarding FOIA requests.”

A judge in Tazewell County dismissed a FOIA lawsuit brought by a Richlands resident who also lost in a three-way race for a seat on the town council. Laura Mollo argued the council did not use the correct exemption when going into a closed session to talk about an application for funds from the Industrial Development Authority. According to Mollo, who texted VCOG, the town admitted its error, but the judge dismissed the case.

An addiction recovery advocate was on the losing end of a FOIA action against the Office of Emergency Services over a database of drug overdose information. The department has shared the data in the past, but when Michael McDermott asked for it this year, the department said it was undergoing a data migration that prevented it from doing so. The agency said it could take months before the migration is complete.

A judge in Charlottesville dismissed most of the FOIA lawsuit brought against the city by Unite the Right rally organizer Jason Kessler. The judge confirmed that the Public Records Act did not confer a private right of actionfor citizens to enforce records management. Instead, it is "totally administrative and procedural -- for the benefit of the good operation of the state government and its agencies."