Sunshine Report for July 2020

Virginia Coalition for Open Government
The Sunshine Report
July 2020 

Transparency Virginia 2020 report online

The volunteers who make up Transparency Virginia have released their 2020 report on legislative transparency. Again authored by VCOG's Megan Rhyne, the report's theme is "The More Things Change, The More They Stay The Same."


FOIA litigation

The Supreme Court of Virginia ruled June 18 that the case seeking to remove two members of the Hopewell Electoral Board should go back to the trial level because of the circuit court's failure to allow evidence of a JLARC report on the State Board of Elections' training of board members. On the other hand, the court ruled that it was OK for the court to have allowed the SBE to introduce evidence on more than the "at least three" FOIA violations alleged against the board members.

A general district court judge in Wythe County ruled Tazewell County's Department of Social Services violated FOIA when it failed to answer a FOIA request by a local attorney seeking records on the department's disease control plan for blood borne pathogens. The department told the attorney that there was a plan but they didn't know where it was. There was no further communication. The judge said the department had to provide the information, say it doesn’t exist, or ask for more time to find it. The judge also imposed a $500 civil penalty.

A Richmond general district court judge ordered Richmond Public Schools to provide a VCU instructor data on teacher and principal turnover. The instructor said RPS did not respond within FOIA's deadlines and when it did, the data was incomplete. The judge gave RPS two weeks to comply. In the meantime, the instructor has received the data she wanted from the Virginia Department of Education.

Nursing home data...finally

For weeks, the administration of Governor Ralph Northam has insisted that it could not release the names of nursing homes that had or were experiencing outbreaks of COVID-19. Though many disagreed with interpretations, including legislators from both chambers and both sides of the aisles, the administration persisted. A public hungry for details took some solace when the Centers for Medicare and Medicaid Services announced it would begin releasing such information. But, when that finally happened, the data was incomplete and sometimes inaccurate. Nearly two weeks later, Northam relented and announced that he would begin releasing facility-specific information on COVID-19 outbreaks within long-term care facilities. Far from assuaging critics, some expressed frustration. "If it is legal to release the information now, it was legal to release it when it was first requested," said House Minority Leader Todd Gilbert, R-Shenandoah.
The full text of Virginia's Freedom of Information Act, including changes made during the 2020 session is available on
VCOG's website.


Norfolk in the spotlight

It's been a rough month in Norfolk, as transparency concerns were raised by a school board vote, dockets at the circuit court clerk's office and police use of force records. At its June 17 meeting, the school board voted to appoint an "individual" to serve as the principal for a district high school. The individual was later revealed to be a member of the Norfolk City Council. “Moving forward, I can understand the need for clarity on the different voting matters,” the school board chair said in an email to The Virginian-Pilot. Meanwhile, a federal judge ruled in June that the clerks in Norfolk's and Prince William County's circuit courts improperly delayed reporters' ability to access electronic dockets. The judge agreed with The Courthouse News Service that the reporters had a First Amendment right to same-day access to the filings. The judge also awarded CNS $2 million in attorney fees. And by month's end, activists were camping outside city hall to protest the Norfolk chief of police's refusal to disclose around 16,700 use-of-force reports. The chief said it would be "reckless" to release them to laypeople who weren't qualified to analyze them. Instead of releasing the records "willy nilly," the chief suggested releasing them to social scientists, who could add context, and then release their analysis.

Open government in the news

The Library of Virginia has created a Tumblr page to document the signs and images documenting COVID-19's impact on society. "Signs of the Times: COVID-19 in Virginia" asks people to take a photo, note the date and place, and subject it to the page. 

Judges of the Portsmouth Circuit Court said at the start of the month that they would recuse themselves from some litigation against the city, saying they have developed relationships with people in city government over the years, and they were feeling "increasingly uncomfortable in hearing these matters."

A citizen advisory board in Prince William invited the Democratic members of the county board of supervisors to a forum on protests in the county, but did not include the Republican members. That prompted one resident to file a FOIA complaint against the board, alleging an improper meeting. The resident withdrew the case temporarily but vowed to refile at a later time.

Prince William County Public Schools denied a FOIA request filed by the county board of supervisors seeking private messages exchanged between the school district superintendent and students. The school system said that the more than 20,000 messages were being withheld in part because or the school division's internal investigation.

The Town of Boyce scheduled a second public hearing and a second meeting to re-vote on adoption of its budget after noting that it did not wait the required seven days between the public hearing and the final vote.

A resolution added to the Danville City Council's June 2 meeting at the meeting's start authorized the city manager to execute a non-binding letter of intent with Caesars Entertainment as the city's preferred casino provider. A council member's comment at the time -- "It's very important to understand how much work was done being the scenes." -- was borne out by emails obtained through FOIA by the Danville Register & Bee showing a scramble to announce negotiations with Caesars on May 18 just a day after another company vying for the deal placed a two-page ad in the paper proposing a different casino location.

The Virginian-Pilot obtained a spreadsheet maintained by Norfolk officials titled "Top Guard Security Issues" that documented complaints they and others had with the firm hired to provide overnight security at the courthouse.

Though Radford University refused to disclose how much it paid to settle a race discrimination lawsuit filed by a former university administrator, the Virginia Department of Treasury did. The case ended in mid-May with the university paying $60,000.

The city of Williamsburg tested 199 city employees for the coronavirus on May 14 but officials declined to release how many (if any) tested positive, calling results a "personnel matter."

A federal judge ruled that the media does not have a First Amendment right to view Virginia's entire execution procedure. Several media outlets sued the Department of Corrections after it changed its policy in 2017 to limit how much of the procedure could be viewed. The judge said the right of access to the adjudication process did not extend to the implementation of the sentence.

The Suffolk School Board censured one of its members for "willfully and deliberately" violating internal board norms and protocols, including those on closed-meeting confidentiality. The member responded by filing a lawsuit against the others alleging they had repeatedly violated FOIA's meeting provisions. The board members responded to that by taking to Facebook to post a statement condemning the lawsuit and the individual, saying she "continues to sow seeds of disunity." The letter prompted the member's attorney to wonder who drafted it and how it was approved.

A Christiansburg Town Council member faced criticism from fellow board members over her comments on social media. When she was first elected, the member refused to sign a non-disclosure agreement that would have let her take part in town business discussions prior to her swearing in. She claimed other members had created fake social media accounts to harass her and that she was being bullied. The council attempted to hold a closed meeting to discuss the various issues, but ultimately decided not to.

The New College Institute struggled with following FOIA's rules for advance public notice of a meeting, admitting that its website posting was difficult to find and that there was confusion over whether virtual meetings at this time have different requirements for how and when to notify the public. There was also confusion over who actually served on the NCI board, with Republican delegates on the board finding out at the last moment that they had been replaced by the Speaker of the House with Democratic delegates.

Reporters from the Daily News Record and The Citizen questioned the Town of Elkton about why it would not be holding a public vote on whether or not to grant a permit to a high school student to hold a Black Lives Matter protest. The board eventually voted in public 5-1 to approve the permit.

Virginia has completed about half of the requests it has received to do widespread testing of COVID-19 at nursing homes, workplaces and prisons and in the community. However, the Virginia Department of Health has not responded to repeated requests for information about the results of the surveys and has not provided the rate of positive to negative tests. The information is not available on the department’s website.

Del. Sam Rasoul, D-Roanoke, said he plans to seek a state opinion directing police to release footage of officer-involved deaths to surviving relatives once an investigation is closed.

The Farmville Town Council used the exemption protecting bargaining position and negotiation strategy on land sales and purchases to justify going into closed session to discuss removing a Confederate monument from town property. Though it has been live-streaming its meetings since the COVID-19 emergency declaration began, the council did not live-stream this meeting. Crews began removing the statute just 30 minutes after the meeting began.

After tense exchanges with the chair of the Rappahannock County Planning Commission, the commission's FOIA officer stepped down from his position. The two disagreed over whether two members of the commission could participate in a public meeting by electronic means. The chair said the two were not temporarily or permanently disabled, the exemption they claimed, and thus could not participate under the commission's electronic meetings policy.

Thanks, Hammer!

VCOG is saddened to announce that Dick Hammerstrom, an 11-year veteran of VCOG’s Board of Directors and its president for the past 3-½ years, is stepping down from both positions. The Library of Virginia's Paul Casalaspi will serve as acting president for the remainder of the year. Read more here.


VCOG will be holding its 2nd annual Media Awards in November 2020. Entries are due by midnight

For award guidelines and deadlines, click here.

Online to in-person

Many Virginia localities started making their way back to in-person meetings once Virginia entered Phase 2 of reopening. Up to 50 people could gather under the new state rules, provided social distancing can be maintained, and that number will go up yet again with Phase 3, which goes into effect today. Consequently, members and the public can more easily meet in person, though some are still sticking to online-only meetings.

Law enforcement transparency

VCOG is working with several legislators, the Virginia Press Association and other interested groups to propose measures for the upcoming special session of the General Assembly dealing with increased transparency for law enforcement offices.

VCOG joined the National Freedom of Information Coalition, the Brechner Center for Freedom of Information at the University of Florida and more than 50 other state open government coalitions and access organizations in issuing a statement on law enforcement transparency and accountability in response to the death of George Floyd at the hands of a Minneapolis police officer.

VCOG is a 501(c)(3) nonprofit. TIN 54-1810687

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