Sunshine Report for July 2021


read the newsletter on Substack

VCOG at the FOIA Council

The FOIA Council's subcommittees continued their work during June. The records subcommittee took more comment and reviewed a presentation on FOIA fees in other states (prepared by council staff, based in part on VCOG's research) but the members still did not discuss much among themselves. Here's what VCOG had to say about what it wants to see from any fee reform proposals.

The same subcommittee also took public comment on a proposal to provide access to police disciplinary files. Several comments by law enforcement posted to the council's website or made during the meeting asked why police were bing singled out among all other public employees.


Watch the video from the June 24 meeting


The council's subcommittee on meetings received many comments from public officials -- particularly those from Northern Virginia, those on advisory boards and women on either or both -- asking the council to study relaxing the rules for electronic meetings further but not explaining specifically what they wanted changed. They did, however, frequently cite increased public participation in electronic meetings as a reason for further relaxing the rules, even though public bodies have not be barred from offering electronic participation to the public before, during or after the pandemic emergency orders. The vice mayor of Alexandria circulated a proposed draft with VCOG the day of the meeting; the draft wasn't shared with the council at the time of its meeting but has since been posted on the council’s website.


Watch the video of the June 14 meeting


You can also read what VCOG had to say about the current rules, the new laws that go into effect today and some of the arguments being offered to support the ability of public bodies to meet remotely more easily and more often.

The full council has not scheduled its next meeting.

Roundup I

With the lifting of the governor's emergency order on COVID, many public bodies will be returning to in-person meetings. Some local governments that are still operating under their own locally declared emergency ordinances may not be, but state agencies and regional public bodies do not have that same ability. Arlington CountyHarrisonburgHerndon and Portsmouth were among those localities transitioning to in-person during June. The question with these and other public bodies has become how and whether they will allow the public to access and/or comment electronicallyStrasburg was among those entities that discontinued Zoom participation and will allow in-person public participation only, also while reducing the number of seats available to the audience.

Roundup II

Three localities filled vacant seats on their boards or made appointments to others, each in slightly different ways. Martinsville appointed two new members to the school board without publicly discussing their credentials or providing any information about them. Interviews were conducted privately and council members were forbidden from speaking about the decision-making process. Lynchburg also held closed-door interviews of the candidates for appointment to that city's school board but released recordings of the interviews before finalizing the appointments. In seeking a candidate to fill a vacant seat on the city council, Bristol publicly asked all six candidates the same question, then went into closed session to discuss their answers. One Bristol councillor did not participate in that meeting because it excluded the public and news media.

FOIA full text

VCOG has published the updated full text of FOIA, with changes and additions that became effective today bolded and italicized for emphasis.

HB 2004 website

VCOG launched a pop-up website explaining HB 2004, which goes into effect today and which is designed to make some records in inactive criminal investigative files open under FOIA. The website breaks the bill down line by line, offers tips and strategies, suggests things to watch for and provides a feedback form to let VCOG know how the new law is being carried out. There's also video from the free webinar VCOG gave (with the co-sponsorship of SPJ) on the bill.

A win for press access to court records

The 4th U.S. Circuit Court of Appeals affirmed a lower court ruling that the clerks of court for Prince William County and the City of Norfolk infringed on the press' First Amendment right to access court filings when they both frequently delayed access to new court filings for two or more days. Clerks must grant same-day access to such filings, absent some emergency. (VCOG joined an amicus brief in favor of the press.)

Meanwhile, a deputy attorney general offered informal advice to the Prince William clerk that nothing in the statutes governing remote access to non-confidential court records barred clerks from offering such access to the press.

Open Government in the News

  • A New York law firm released its report that investigated the investigation the Office of State Inspector General conducted on whether the Parole Board followed its procedures and policies in deciding to release Vincent Martin from prison. The report concluded the lead investigator was "most likely biased."

  • A meeting of the Loudoun County School Board was discontinued after the chair lost control of the public comment period. More than 300 people showed up to comment on a proposed policy to protect the rights of transgender students. Just five minutes into the comment period, the chair called for a 5-minute recess and asked the audience not to interrupt with chants or applause. The cheers returned after former Senator Dick Black spoke against the proposal, prompting the chair to end public comment. The crowd began its own, informal public comment period.

  • The Christiansburg Town Council approved a resolution reprimandingone of its members for what it called inappropriate actions and conduct that undermined the public's trust and confidence in town government. The resolution referred to past social media comments, supposed errors in the council member's financial disclosure forms and her telling a fellow council member to "bite" her.

  • The Virginia Department of Rail and Public Transportation suspended funding for JAUNT after records showed the former director of the Charlottesville-area bus service spent large sums on travel, including $7,275 for a private suite on a flight from New York to Paris.

  • A reporter for theNews Leader used public records and examined a complicated budget process to unravel the purchase and use of body cameras by law enforcement in Augusta County over the years. The effort was prompted by an exchange at a public meeting where the sheriff said he had asked for funding for cameras and a county supervisor said she never saw such a request.

  • A circuit court judge in Prince William County rejected an attempt by the Democratic members of the board of supervisors to impose sanctions on three county residents whose FOIA lawsuit challenged the legality of the members gathering at a forum hosted by the county's police chief.

  • The New Market police chief launched a podcast to inform the community about news, events and other local happenings. "It's just another avenue for us to get to folks," he said. Meanwhile, the Lynchburg Police Department opened up a website filled with department information and crime data, including on use of force complaints.

  • A joint meeting between the city council and the school board in Harrisonburg  had to be postponed after concerns were raised about whether proper notice under FOIA had been given. Notice for the Monday meeting was not given out by the school board until Friday, but FOIA requires notice at least three working days in advance.

  • The Commonwealth's Attorney for Virginia Beach determined the shooting of a local man in his home by police was justified. The CA identified the two officers involved by last name and first initial. And though he released a 22-second video from one of the officer's body camera, he did not release any video from the other officer's camera.

  • Email obtained through FOIA byARLnow detailed the conversations that surrounded moving Arlington's police scanner to an encrypted feed. The move came in March and referred to protests last summer and the Jan. 6 incursion at the U.S. Capitol. Without encryption, criminals would have advanced warning of police actions, the email messages also said.

  • Staunton considered a policy for its city council to retain "private" emails and texts that are about their duties as councillors up to three years on a flash drive given to the city for safekeeping. Discussion of the policy generated an exchange among members about the good faith of the members to properly collect and transfer messages from private accounts and devices.

  • Sen. Joe Morrissey (D-Richmond) won a restraining order against the former employee of a company that makes political donations to Morrissey. Morrissey got the order after the employee filed a FOIA request for a psychological profile the company prepared on the employee that Morrissey subsequently shared with the Capitol Police. That prompted a phone call between Morrissey and the employee that devolved into swearing and threats.

  • ARLnow used FOIA to get a list of complaints Arlington citizens made about non-compliance with COVID-19 restrictions. Around 200 were filed in 2021, while just under 1,000 were filed in 2020. Some complaints were on the other end of the spectrum, complaining of "snitches" and "the Gestapo."

  • Richmond paid $219,000 for an independent review of the police department and potential misconduct when officers responded to the protests of last summer, according to records obtained through FOIA by WRIC.