Sunshine Report for June 2015






The Sunshine Report: Online
Transparency news from the
Virginia Coalition
for Open Government
  June 2015



Greetings, Friend of VCOG!

Dear Friend of VCOG:

May was a busier than average month for access. Something in the air, perhaps, or maybe just more and more people engaged in thinking about what transparency and access mean to them. I’ve given up trying to figure it out, but I try my best to stay on top of things.

For instance, this month we saw another salvo in the battle to get a database from the Supreme Court’s Office of Executive Secretary; the FOIA Council’s subcommittees met, as did the full council; a threatened lawsuit brought one locality to terms with FOIA’s provisions, while another locality backed off with less drama. We saw two stories involving juror lists, and we witnessed the closing of Sweet Briar College move from Bedford to the halls of the Attorney General’s office.

VCOG tries its best to keep people informed about these and other stories. We have daily, monthly and annual newsletters, an archive of FOIA opinions and a FOIA hotline. We have a strong social media presence and we’re on the road frequently to train citizens, media and government about the ins and outs of FOIA.

Your memberships, your donations make this happen. But we’re running a bit short towards the end here of our fiscal year.

CAN YOU HELP US RAISE $4,000 BY JUNE 30? Think about it. If you’ve never contributed to VCOG, please consider NOW as the time to show your support for the work we do. Your contributions are 100% tax deductible and 100% appreciated.

Please give today. And we’ll keep keeping you informed.

Megan Rhyne
VCOG Executive Director


VCOG on the road

VCOG spoke to more than 100 attendees at the Public School Records Consortium at the annual conference in Staunton. VCOG will be speaking to the Tea Party Patriots Federation in Richmond on June 13 and an AARP group in Charlottesville June 17. To schedule FOIA training or talk with VCOG, contact Megan Rhyne at

Coming up

June 3 — The Virginia Supreme Court will hear arguments in Virginia Department of Corrections v. Surovell in a FOIA case that could affect the government’s duty to prove the security exemption’s application and define the government’s duty to redact documents. Read more in the yellow box below.

FOIA Council updates

The FOIA Council met May to review the work of the two committees studying FOIA’s records and meetings exemptions. They also made decisions on what to do with legislation referred to the council by the 2015 General Assembly, and they heard an update on an emerging trend of government treating access to databases differently from the way all other records are treated.

To read the full write-up on these meetings, go to VCOG’s website.

Threat of lawsuit prompts compliance

Radio talk show host Rob Schilling requested records from Greene County regarding a loan agreement arranged between the county and its executive. He was given the loan agreement, but no other related documents, and he was refused the executive’s employment contract. So Schilling announced his intention to sue the county, quoting VCOG’s Megan Rhyne in part that it was hard to believe a loan would be worked out without any supporting documentation or notes, and also citing FOIA’s specific provision requiring employment contracts to be released. Within two days, the county released the contract, as well as nearly 20 pages of emails responsive to the original request.


FOIA case at SCOVA tests redaction and deference

The Virginia Supreme Court will hear arguments June 3 in Virginia Department of Corrections v. Surovell, a FOIA case that could affect the government’s duty to prove the security exemption’s application and define the government’s duty to redact documents.

After a full-day hearing, a Fairfax County judge ruled that some of the records requested related to the death penalty process at a DOC facility were properly withheld under the exemption for security, but that some should be released, and some (particularly the death penalty policy manuals) should be redacted and then released.

DOC has argued on appeal the trial court should have deferred to the DOC’s expert who said all of the records should be withheld because of security. The department also argues the trial court should not have required the DOC to redact documents, saying that because they contained exempt material, they could be withheld in their entirety.

VCOG filed an amicus curiae brief that focuses on the redaction issue. Redaction is specifically mentioned in one of VCOG’s five allowable responses, and another section mentions the duty to redact non-exempt portions of a database that may contain exempt and non-exempt data fields. The DOC’s interpretation would effectively gut the specific provisions of FOIA that contemplate redaction. “Thus the VDOC’s position is at odds with both the plain language of the statute itself and the FOIA Council’s learned interpretation of the statute.”

A decision is expected by September.


OES provides 11 pages of why it can't
without ever saying why it should

Despite an opinion from the FOIA Council that the Supreme Court’s Office of Executive Secretary should turn over a database of court case information in response to a FOIA request, the OES released an 11-page letter asserting its right not to. The OES insisted alternately that FOIA does not apply to the office or to the database, and that providing case-by-case information pulled from the database in its online search tool was all that was needed when access was required. (In other words, the OES was asserting in one breath that the database was not a public record, but in another breath saying the records were public under its search tool.)

The OES claimed it would take more than 250,000 hours of staff time to review all 7.5 million cases in the database to remove records that had been expunged. The office did not explain why the records would still be in the database at all, since an order of expungement means the records are wiped from the system.

The OES said that if they released the database, they would lose the ability to wipe clean records that are expunged after the release. Newport News Circuit Court Clerk Rex Davis pointed out that records remain outside the court system even after an expungement order. “When someone has come in and seen a record and walked out of our office with a copy, if the case is later expunged, we can’t do a thing about it,” he told the Daily Press.

In social media, VCOG’s Megan Rhyne agreed: “Expungement doesn't erase people's memories or records they may have. You can't unring that bell,” she said on Twitter.

A sour FOIA note on Sweet Briar

Sweet Briar College may be a privately funded institution, but that didn’t stop it from being the center of a FOIA fight between the Attorney General’s Office and citizens intent on keeping the college open.

In at least two requests for records relating to meetings between high ranking officials at the school and the AG’s office, the AG’s office came back with estimates that it would cost more than $19,000 for one request and $40,000-plus for another one.

Admitting it had no centralized search method, the AG’s office said all 181 attorneys in the office would need to search their records to respond to one of the requests and all 418 office employees would be required to search for the other. In addition, the same groups of employees would have to spend time reviewing whatever records they found.

Setting aside the propriety of the amounts charged — these were broad requests for sure, but arguably not $19,000 and $40,000 broad — the explanation and support for the charges was decidedly opaque, a fact noted in a VCOG blog post about the request. VCOG penned another post to protest the assertion — without explanation — that the office did not receive the request for more than three weeks after it was made.


Open government in the news

The Hampton City Attorney’s Office refused to release four consultants’ reports that would provide insight into the construction of a city-run aquatics facility. The office cited the working papers exemption on the grounds that the city manager is still gathering information about the proposal and she has not discussed it with city council. . . . The Richmond Electoral Board quickly reappointed the city’s registrar despite complaints that notice of the pending action was limited. Notice appeared in the clerk’s office but was not distributed online. Online notice is not required by statute, but when asked if online notice could be provided in the future, one board member said it would be problematic if emergency meetings had to be called. “So let’s just leave it as it’s been done for 20 years,” she said. . . . Perhaps feeling the sting of public backlash about its handling of information withheld in the shooting death of an unarmed man in the doorway of his home, the Fairfax County Police Department voluntarily released dashboard camera video of a different police shooting in 2009. “I have exercised my discretion under the Virginia Freedom of Information Act,” Chief Edwin C. Roessler said in a statement accompanying the release. . . . After months of litigation, the 4th U.S. Circuit Court of Appeals ruled that informational surveys jurors filled out in the corruption trial of former governor Robert F. McDonnell and his wife, Maureen, must be made public. Meanwhile, the judge presiding over the murder of Kevin Wayne Quick, a police officer, called a mistrial after it was discovered one of the defendants, a gang member, had obtained a list of jurors and their private information. . . . When the Culpeper Times requested records from two different entities about the exact same topic (records relating to an ongoing war of words between the Culpeper Police Department and the Culpeper County Commonwealth’s Attorney), the publication received two different responses: the Culpeper office refused to records related to the commonwealth’s correspondence with a Fairfax County prosecutor, while the Fairfax County Commonwealth’s Attorney released them all. . . . When television reporters and a fellow board member arrived for a meeting the Portsmouth mayor set up between him and the local sheriff to talk about pending budget cuts, the mayor called the meeting off. . . . York County said it would take 50 hours and cost at least $1,000 to cull records on how much money had been spent for travel and training programs for board members and senior administrators. Hampton schools said it would take 13 hours, while James City County did not specify how long it would take but estimated it would cost $500. . . . The Winchester City Council voted down a proposed resolution that would have banned the outside communication between board members and representatives of entities seeking to do business with the city. Information shared in such ex parte communications should be shared among all board members, proponents argued, though opponents, including the Winchester Star, said it would infringe on citizens’ right to address their elected officials. . . . The Town of Quantico agreed to drop its policy of requiring citizens to get permission before filming town meetings after it was pointed out that FOIA specifically allows citizens to record meetings, provided they do not disrupt proceedings. That was not the concern of the council members, who were heard on a town recording of an earlier meeting revealed one member stating, “I have no control over what they do with [the recording]” and another calling the town recordings “town property.” . . . An investigation by the News Leader, which included obtaining records through FOIA, revealed that the local child protective services office ignored at least 200 voice mail message left on office phones, then after they were discovered, deleted them without listening to them all. . . . Students at UVA will be able to submit up to three video comments to be played at Board of Visitors meetings. . . . After the Virginian-Pilotnoted a local builder was texting with members of the planning commission about how to vote on a proposal, the city attorney reminded council members that texts are public records, regardless of whether sent on city-issued devices or on private ones. Agreeing that it is legal to send texts during a meeting, one council member nonetheless asked, “What kind of impression does it give?” . . . A WTKR investigation into responses Hampton Roads police departments give to FOIA requests revealed two particular concerns: requests for payment even though no records were located, and denials that did not properly cite the statutes that allowed records to be withheld. Even though it denied every request, Chesapeake began charging for them for body camera video when the volume of requests went up. . . . A judge in Shenandoah County unsealed records in a case about an undercover investigation by the county sheriff’s office into cigarette smuggling.

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