We started out the final month of 2024 with an interesting court decision about FOIA, text messages and personal devices. And the FOIA Council met to discuss a proposal to cap hourly labor charges for fees. The bill includes compromises from all sides, but some government representatives wouldn't go on record in support of it.

I spent a lot of time in December thinking about the frustration between citizens and governments over FOIA requests and about conduct at public meetings. For example, at a Southampton County School Board meeting, the superintendent speculated that some FOIA requesters must be "sitting around just thinking up stuff." And we have several open-government news stories where matters not on the original agenda were acted on, and where boards struggled with new and proposed rules governing public comment.

We're moving forward, though, eager to engage in the 2025 legislative session with our new Chip Woodrum Legislative Intern (Peggy Stansbery, recently graduated from VCU) and to our annual conference in April, where Chaz Nuttycombe, a well-known elections forecaster, will be the keynote speaker. Plus, we're looking for nominations for FOIA heroes.

Read on!

The chief judge of the Norfolk Circuit Court ruled the Transportation District Commission of Hampton Roads (HRT) did not have the duty to search employees' personal phones, nor did it have the authority to compel the employees to turn their phones over, in response to a FOIA request for text messages about public business that might be on the phones. The judge also allowed HRT to initiate this action under the Declaratory Judgment Act. Other courts have not allowed requesters to use the DJA because only actions for mandamus and injunction are written into FOIA's provisions. The judge did not go into the many FOIA Council opinions on public records on private devices/accounts because, she said, they were about email and this case was about text messages.

People — not voters; people — are more and more alienated from their government. If citizens feel disconnected from their governments an important step towards reconnecting them would be for governments to stop fighting them when they exercise their statutory right to access information.

As someone who talks (and talks and talks) about the critical role public meetings play in this pas de deux, as someone who trumpets the value of giving citizens a voice to address their elected officials, it pains me to say this. Really, it does. But some of y’all done lost your blankety-blank brain boxes!

If you want an example of the way citizens fee driven apart from their government, ake a moment to listen to a recent exchange at a Southampton County School Board meeting. (Scrub to the 1:17:30 mark)

Board members expressed interest in getting a monthly summary of FOIA requests submitted. Though the chair said it would be helpful to know if the same person is making multiple requests, she later noted that understanding the volume of requests would inform future personnel decisions about staffing. The superintendent did not embrace that connection: 

“If we’re going to have to start tracking, especially with the way that the (Southampton County) Board of Supervisors is going and all that’s happening, it’s too much. It’s too much work, it’s a lot, and it’s about to really, really get worse. So I don’t know that we’re going to even have time to track everything....We don’t have the staff to do nothing but FOIAs all day long, we just don’t.”

Another board member suggested the data might help to identify ways to improve the process. The superintendent did not agree with this, either:

"It's no other way, because a lot of the things that they're asking for they already know the answer to. A lot of this is a distraction, it's a distraction to keep us from doing the work that we're supposed to be doing with the kids. Some of the people, it's like they're just sitting around just thinking up stuff, honestly, and it's ridiculous. It really is. It has really gotten to the point of being ridiculous." 

*SIGH*

Nominations are open to recognize your FOIA hero at VCOG's annual conference on April 3 in Harrisonburg. VCOG's annual awards celebrate the outstanding efforts of journalists, government officials and, most importantly, citizens who work to make government more open and accessible to their communities.

Past Citizen Award Winners
Our citizen award recipients have included a mom whose persistent FOIA requests over nearly two years led to a more efficient and fiscally responsible 911 system; a grassroots advocacy group that recorded and posted videos of legislative committee meetings—prompting the General Assembly to start doing it themselves; and a university professor whose open records requests in Michigan helped expose the extent of the Flint water crisis.

Past Government Award Winners
Government honorees have included a FOIA officer who consistently explored new ways to make more records available at a lower cost to the public; a school board that implemented transparency measures far exceeding the minimum requirements; and a court clerk who made records accessible online long before anyone else.

Past Journalism Award Winners
Journalists have been recognized for stories that used public records to uncover scandals involving school SOL administration; a city councilman's double-billing for meals and travel expenses; barriers preventing the public from learning about pharmacies that failed to meet state standards; and the behind-the-scenes maneuverings that led to a decision—later reversed—to move a historic post office.

DEADLINE: Jan. 31, 2025.

The FOIA Council didn't have enough members at its Dec. 4 meeting, so those present could only discuss the proposed legislation to emerge from the study committee on FOIA fees. The proposal caps the hourly rate a government body can charge for the search and review of records at $40 or the median salary for full-time employees, whichever is less. Government bodies would have to ask a court to be able to charge more, something those representing school districts, law enforcement and prosecutors said they needed. Given this and other adjustments asked for by government, and considering that a draft proposal had been circulating for weeks, council member Maria Everett (who is also the president of VCOG's board of directors) expressed disappointment that several workgroup participants said that while they supported the proposal personally, the government entities they represented had not taken a position. Sen. Danica Roem will carry the bill in 2025.

The King George County Board of Supervisors said that, among its priorities for the 2025 General Assembly session, is a request to "eliminate restrictions on the Board of Supervisors' meeting capabilities." The county administrator appeared to be chafing at rules that say FOIA's rules are triggered when three or more members of a public body gather to talk about public business."

The chair of the Loudoun County Board of Supervisors expressed similar interest in a proposal to allow more than two elected officials to meet together without public notice at the discretion of the chief elected official. The chair said current rules hampered board members' ability to meet after a firefighter died at the scene of a home explosion. She did not explain how current law -- which allows notice reasonable under the circumstances for "special, emergency or continued" meetings -- was inadequate.

The King George County School Board said it will consider at its January organizational meeting whether to add a pre-meeting prayer session.  “It allows the opportunity for board members to pray because it is not part of the official meeting,” the board chair said. “That makes it legal. [We’re] wanting more prayer, not less.”

A review of records obtained through FOIA indicated that Richmond schools received around $465,000 out of the roughly $4 million in fines collected for improperly driving past school buses. Though the contract with the company that manages the fines calls for the schools to receive 40% of the amounts collected, the contract also says that $37,800 in "technology fees" is to be taken out of that 40% each month. 

After Richmond's General Registrar, Keith Balmer, and the deputy registrar, Jerry Richardson, resigned in early December, Ballmer said he was writing a letter or rebuttal to an inspector general's report detailing nearly $500,000 in mismanaged funds. He also said he would release the letter publicly, but then said he wouldn't. The Richmond Times-Dispatch got a copy through the FOIA request. The investigation office spending is still pending. The city confirmed that Balmer's purchase card was suspended in May, but was reactivated in September of the city's procurement director to meet election needs. The electoral board said that it reached a unanimous decision -- in closed session -- not to give Balmer a severance package.

Though it did not appear on the original agenda for Middletown's December planning commission meeting, the board went into a closed session to discuss -- and reach an "informal consensus" -- to remove a fellow member from the board. A formal vote was expected later in the month. The town's mayor said the member allegedly committed a minor federal offense.

Though it did not appear on the original agenda for the Hampton School Board's Dec. 4 meeting, board members added an action item at the beginning of the meeting to approve a 50% pay raise for the superintendent. There was no board discussion before the vote to approve the raise was.

The Winchester City Council contemplated new rules for its public comment period, presumably prompted by pro-Palestinian protesters who took up much of previous comment periods asking for a resolution on the war in Gaza. The city attorney recommended limiting speakers to 90 seconds each.

At the first meeting under the Frederick County School Board's new public comment rules, the board chair asked deputies to escort two speakers out of the meeting. One was removed because of her profane language, and the other was removed for not being a citizen of Virginia.

The Virginia State Police "quickly" denied a FOIA request by a Virginia-based reporter for video footage showing the DUI arrest of a deputy police chief from Illinois. A news outlet in Burr Ridge, Ill., wanted to know whether the deputy told arresting officers that he was in law enforcement. VSP said the record was now part of a closed investigative file.
 

The Montgomery County Board of Supervisors voted to censure one of its members for "consistent failure" to attend meetings. Minutes show she missed nine of 64 meetings in the past two years. The member, Sara Bohn, said she missed meetings to go on a European vacation and to attend a family reunion, a relative's wedding and a relative's funeral. She also said she was dealing with a divorce, however, she also said, "I don't know why this would make people upset." Meanwhile, the Stafford County Board of Supervisors voted to censure one its members, Monica Gary, for her role in removing a citizen member of the regional library board.

The Mineral Town Council refused to let David Hempstead take a seat on the dais next to his colleagues because the town says it removed him -- following Robert's Rules of Order -- from the council. Hempstead spoke during the public comment period warning, "The only way an elected councilman can be removed from office is through a recall process that is done by the citizen voters who elected the councilman." He also asserted that neither council members nor staff have FOIA training certificates from the FOIA Council.

Another former Richmond employee has filed a whistleblower lawsuit against the city saying she was placed on indefinite, unpaid leave by the city's finance department after she told the inspector general's office of "the falsification of the (city's) cash account." The city is also facing a whistleblower suit from the city's former FOIA officer.

An audit of Virginia Beach's economic development department uncovered new details about the spending practices of its former leader, Chuck Rigney, and recommended that he repay the city $10,100 for improper expenses incurred during a work trip to Las Vegas, as well as for unrecorded time off. The city did not give any explanation at the time of the director's resignation in July.

Residents in Warrenton speculated about what the five incoming members -- all of whom said they would oppose data centers -- might do with respect to the FOIA lawsuit the town is appealing to the Virginia Supreme Court. The Virginia Court of Appeals ruled many months ago that the town cannot use the working papers exemption to withhold the records of both the town manager and the town's mayor (one or the other, but not both), and that they need to do a better job of sampling the withheld records of the judge to review if the exemption is even applicable. The outgoing council members voted to appeal to the higher court, though the Supreme Court has not said whether it will accept the case.

Warren County announced that 40 minutes of the video of a 7-hour public hearing were missing from the final meeting recording. The hearing was yet another venue for members of the public to express the pros and cons of the current set-up between and oversight by the county of a local library.

A disciplinary supervision agreement between Richmond Circuit Court's chief judge and the Judicial Inquiry and Review Commission was made public pursuant to a 2023 law. Prior law required JIRC to provide information in its annual report on how many complaints about judges it received and how many were dismissed. The 2023 law says JIRC must name the judges if it concluded they breached judicial conduct canons. 

A special prosecutor said no one would be charged over an incident where a local activist approached a Loudoun County School Board member with a camera that the board member swatted away from her. "Wow, you're assaulting me now?" the activist said. The special prosecutor said not prosecuting, "reflects a prioritization of judicial resources for cases with a more direct impact on public safety and the community's well-being."

A football recruiting scandal at a Fairfax County high school resulted in resignations and a pledge by the superintendent to publicly release the results of an external review of the situation.

VCOG is excited to announce our annual conference keynote speaker: Chaz Nuttycombe. Chaz has made a national name for himself as the only elections forecaster in the country who calls every single legislative contest. A Richmond native and Virginia Tech graduate, he uses odds-making, mapping and GIS data to inform his predictions. Hear what he has to say about the 2024 elections and his new venture, State Navigate.

Registration for VCOG's annual conference -- April 3 in Harrisonburg -- will be open by the end of the month.

We're also on Bluesky: @opengovva.bsky.social

P.O. Box 2576
Williamsburg VA  23187
540-353-8264
vcog@opengovva.org