Sunshine Report for January 2023


12 Days of FOIA

According to Christian theology, the 12 days of Christmas are the period between the birth of Christ on Dec. 25 and the coming of the three wise men to Bethlehem on Jan. 6. Now whether you're following one ecclesiastical tradition or another, Day 1 is either Christmas Day or the 26th, which makes today, Jan. 2, either the 8th or the 9th Day. (Reminds me a little of when an answer is due under FOIA's five-working-day timeline.) Thus, according to Megan's rewriting of the "12 Days of Christmas" holiday tune, that means today's "gifts" are either "8 meeting minutes" or "9 hands withholding." 


VCOG's annual conference is March 16 in Charlottesville. We already have a program shaping up, and we will present our open government awards at the conference. Register today.

THANK YOU to our co-hosts:
Threshold Counsel and Willcox & Savage

And to our additional corporate and individual sponsors:
Glen Besa, CountingBeans LLC, Jane Elizabeth & John Bull,
Joshua Heslinga, Thomas H Roberts & Associates,
Virginia Association of Broadcasters, WHRO, WTVR and WWBT.

Join them by making your own contribution to the conference.

It's not human error to continue withholding records 

Days after a 28-year-old deputy for the Washington County Sheriff's Office traveled across the county to kill the mother and grandparents of a girl he had duped online before then killing himself, the Virginia State Police said it had no knowledge when they hired Austin Lee Edwards a year ago that he had been detained for psychiatric evaluation in 2016 after threatening to kill himself and his father. A Washington County judge allowed the Los Angeles Times to secure a copy of the detention order. The Times also obtained personnel records through an investigator who previously worked in law enforcement in Virginia, and they show that Edwards disclosed the prior detention in his VSP application. VSP then acknowledged that "human error" caused them to miss the incident when vetting Edwards, yet the agency also continued to withhold Edwards' personnel record, even though they have the discretion to release it. Federal FOIA guidance says “after death, a person no longer possesses privacy rights,” and the Virginia Supreme Court recently confirmed that the personnel exemption is a "privacy-based" exemption. Gov. Glenn Youngkin asked the Office of State Inspector General to investigate VSP's hiring of Edwards.

- M.R.

When "or" means "and"

A local lobbying group pushing back against the Town of Warrenton's efforts to land an Amazon Web Services data center filed a FOIA lawsuit against the town clerk. The clerk withheld thousands of pages of email and other documents by citing the working papers exemption. The exemption can be used by the "mayor or chief executive officer" of a local government. That has generally been interpreted as meaning one or the other, but the clerk says it can be used by both the mayor and the town manager and that all FOIA decisions are made in direct consultation with the town attorney.

Eye roll of the month


When a member of the Pittsylvania Board of Supervisors publicly questioned a member of the county school board about why the school board thought it was so urgent to pass a resolution limiting the carrying of guns into the two boards' shared meeting space, the school board member responded, "I'll tell you when you and I go into closed session."



VCOG board dinner & awards
March 16
The Brick Cellar in Charlottesville

Open Government in the News

FOIA's frustrating fees

The Norfolk campaign coordinator for New Virginia Majority asked the city school division for school bus stop location and schedule data so that it could provide escorts and protection to parents who had heard gunfire near some bus stops. The response? Eight hours of work at $42.42/hour, plus $.15/page for a total of $489.36. A school district spokesperson explained that to gather the bus schedules with the pick-up and drop-off locations, whoever is gathering the information must extract the data for “each individual bus route and each individual stop." 
(NOTE: FOIA costs are supposed to represent the actual cost, which means that if school board members wanted this same data, it would take one whole workday and cost $489 in the end.)

Reporters looking into a spate of deaths, overdoses and assaults in the Richmond City Justice Center were met with roadblocks. The Richmond Sheriff told the Richmond Times-Dispatch it would cost $1,385 to look at payroll data from the past few years. That included eight hours of work by someone at a rate of $98.46/hour. "Your FOIA request would require staff to create new queries as well as create a new document, as not doing so would be even more expensive.” The office then quoted WTVR a figure of $1,086 to get records related to the total number of assaults on staff for the past year, along with information about charges against inmates, staffing numbers, and overtime pay. It would take four employees 21 hours to compile the information, the sheriff's office said. For comparison, the Chesterfield Sheriff's office provided the same information for free and within a day.  
(NOTE, again: FOIA costs are supposed to represent the actual cost, which means that if the Richmond mayor, city council, Department of Corrections official or anyone else asked for the same information, it would take multiple days and hundreds upon hundreds of dollars to get it to them.)

When VCU's Capital News Service asked 12 local elections departments for records of write-in candidates in the 7th congressional district, they got records from half of the departments free of charge. Among the other half, two counties charged a relatively nominal amount ($50-$100), three restricted access to in-person viewing, and one, Prince William County, denied the request outright.

When it comes to businesses with business with the government....

A review of records obtained by Virginia Public Media through a FOIA request showed that since 2017, the Virginia Tourism Corporation signed more than 125 no-bid contracts worth up to $11.8 million in total. VPM's review was prompted by the agency's award of a contract this summer to a company that produced many of Governor Youngkin's campaign ads. The Office of the State Inspector General concluded in December that because VTC is exempt from state procurement guidelines, and because the cost of the project was "reasonable based on similar projects," there was no wrongdoing.

When the Richmond Times-Dispatch asked the City of Petersburg for records related to a consultant's process for soliciting and evaluating bids for developing a proposed gaming resort, the city responded, "Unfortunately, the information requested cannot be provided because there are no public records responsive to your request."

​A consulting report prepared for the Youngkin administration recommending changes to the state procurement process said Virginia could have saved as much as $900 million a year, but when the report was disclosed through a FOIA request by the Richmond Times-Dispatch, the sections showing where state expenses could have been cut were redacted. The Department of General Services said the data on spending was the proprietary information of the consultant.

​Norfolk did not follow its own RFP guidelines when it chose a developer to revamp an old shopping mall. The guidelines spell out how the city and the city's economic development authority were supposed to evaluate each proposal and make a final selection, including a detailed method to score and rank each proposal by a review committee. But the scoring was never done and the review committee was never formed, as confirmed by the city manager to The Virginian-Pilot.

A report released by a Virginia work group tasked with exploring ways to reduce the fees charged to jail inmates for phone calls, email, food and clothing said they do not have a comprehensive picture of statewide standards since only 28 of 59 local and regional jails supplied requested information. Of those 28, many included redacted sections on "billing arrangements," "services," "compensation" and "rates," saying those were trade secrets of the vendors who provide the services. The Virginia Sheriffs' Association said the report was based on flawed methodology.

Unnecessary silence

The Washington County Service Authority Board of Commissioners remained mum about the reasons behind the abrupt termination of the longtime general manager's employment with the agency in November, though the board did meet in early December to approve a severance package for an undisclosed amount with the manager. "It's not a public document," the board chair told a reporter for the Bristol Herald Courier. Even by mid-December, when the board hired an accounting firm to conduct an internal investigation of its finances, the board had not released information about the cost of the severance package.

A Charlottesville Circuit Court upheld the attorney general's refusal to disclose a document that allegedly said it was up to the General Assembly, not the State Air Pollution Control Board, whether or not to remove Virginia from the Regional Greenhouse Gas Initiative. A member of the board referenced the document during an April meeting. The Youngkin administration has been exploring ways to remove Virginia from RGGI through the regulatory process.

The Danville School Board has a policy that prohibits board members from talking to the media about school board matters. Only the board chair is supposed to do that, which is unlike rules for the Danville City Council, even though both are comprised of publicly elected representatives. The current president of the Virginia School Board Association told a Danville Register & Bee reporter that such a policy is not a requirement but a "best practice used by some boards."

Pleased not to meet you

The General Assembly's joint subcommittee on campaign finance did not meet in 2022. The group met only four times in 2021. A proposed meeting on Dec. 12 was canceled because the resolution creating the subcommittee stated that work had to be completed by Nov. 30.

According to a letter from a member of the Virginia Beach Mass Shooting Commission, half of the members originally appointed to the board created by legislation sponsored by then-Del. Jason Miyares and Del. Kelly Convirs-Fowler have stepped down. The letter claimed that members were unable to get necessary information from the city, a point underscored by Miyares in a letter sent to the commission a few days after an article about the commission was published in The Virginian-Pilot. The commission's chair responded the next day that the "whole message is not being told" by the media and that allegations of dysfunction are a "false narrative."

The Dayton town manager resigned in December, saying she loved Dayton and its citizens but that it was "increasingly more difficult" to do her job, noting that town council and other public meetings have become "much more divisive." She insisted her resignation was not because of negative comments directed at her interactions with downtown businesses leading up to the town's autumn festival.

Bright spots

The Youngkin administration launched an online resource to detail where the Department of Environmental Quality is in the permit application review process. The Permitting Enhancement and Evaluation Platform -- PEEP -- currently shows only Virginia Water Protection Permit applications, but construction stormwater plan reviews and data for other permit applications will be coming soon.

A Norfolk community group prepared an interactive map on rental prices in the city by using demographic and income data from the 2021 U.S. Census, as well as by scraping commercial real estate listings like Zillow and, which, in turn, rely in part on public records.

And all the rest

A Greenville County Circuit Court judge said that a lawsuit over Virginia's ban on so-called skill games could proceed, but he rejected the argument that the General Assembly violated the Virginia Constitution by adding legislation addressing the ban to the budget adopted in 2022. Despite the ruling, the judge pointedly added, "Government at any level should not be doing business in the dark,"but he also said, "I'm not going to peek into that closet."

UVA officials withheld 577 electronic records related to Christopher Darnell Jones Jr.'s involvement with the schools threat assessment team and the school's investigation into an alleged hazing issue where Jones' name was mentioned. Jones went on to kill three fellow students on their return trip from a school trip to Washington, D.C. An op-ed in the Bacon's Rebellion online publication noted that the job of the university counsel's office is to defend the university's interests, a duty that may clash with its responsibilities under FOIA. "The office will never knowingly break the law, but it will search it for provisions favorable to its client's interest."

Two of the three misdemeanor charges leveled against the former superintendent of Loudoun County's school system related to the firing of a special education teacher. The superintendent has been charged with retaliating or threatening a person for publicly expressing their views on a matter of public concern and with penalizing an employee for a court appearance, in this case, a special grand jury.

Emails obtained by ProPublica from Mecklenburg County show the behind-the-scenes efforts of Microsoft officials who found an early 20th-century cemetery of local Black people in the vegetation that needed to be cleared for its $346 million data center. Microsoft and the county ignored advice to locate family members of the people buried there, and when the county indicated it had to at least publish a public notice about the cemetery's discovery, Microsoft warned of the "risk" that a local family member might come forward. One of those family members worked for the newspaper that published the notice but he was never directly contacted.