Sunshine Report for June 2018

The Sunshine Report: Online
Transparency News from the
Virginia Coalition
for Open Government
June 2018

Training & education

VCOG's FOIA and records management seminar drew 130 attendees for three hours of training on FOIA and records management that focused as much on how and why the laws exist in the first place as it did to the letter of the law. Alexandria Communications Director Craig Fifer, a VCOG board member, asked the audience to think about approaching FOIA with customer service in mind by staying cooperative and not adversarial, speaking and writing respectfully and avoiding legalese. Maria Everett, the retired FOIA Council executive director who is also on VCOG's board of directors, raised a similar theme, asking the audience to think about how they would want to be treated if they were seeking information as a citizen. Glenn Smith capped the day off tips and encouragement for staying on top of records retention, management and destruction.

Look for more in-person and online offerings this fall!

Supreme Court win for citizen

The Virginia Supreme Court said a Rappahannock County woman can continue with her FOIA suit against the county board of supervisors, which she alleges held improper closed-door sessions related to the hiring of a new county attorney. In support of her claim, Marian Bragg submitted a statement from a board member who said that even though he voted to certify the propriety of the closed meeting, he later realized it was improper when they talked about how to fill the position, not just who they would hire. A lower court said the supervisor's statement did not establish good cause to bring the suit, but a unanimous Supreme Court said it did. The justices noted that the lower court relied on a narrow and restrictive interpretation of FOIA that "effectively deprived Bragg of her statutory rights and or any remedy for alleged violations."

Read the full text of the opinion.

 Annual legal fellowship

VCOG is pleased to have Andrew Abraham on board as its 2018 Laurence E. Richardson Legal Fellow. Andrew is a rising second-year law student at the University of Richmond. His first project for VCOG has been research on the powers and duties other states have assigned to their FOIA Council-type offices (not all states have such an office). You can view his preliminary findings at the bottom of the FOIA Council's subcommittee website.

Conference reminder

VCOG's next annual conference will take place during Sunshine Week 2019 instead of during the fall. There will be no conference in the fall of 2018.

VCOG newsletter

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Records sealed, citizen's second-guessing cited

The Martinsville city attorney secured a court order from a local judge barring the release of records related to the city's investigation into the Henricopolis Medical Center for the time being and for six months after the investigation's conclusion.

In addition, the order was made retroactive to September 2017. That's when local activist Ural Harris filed a FOIA request for those records. The city signed an agreement with Dr. Noah Boaz to guarantee an $800,000 Tobacco Region Opportunity Fund grant to help launch a proposed medical school. When Boaz failed to meet various grant targets and deadlines, the Tobacco Region Revitalization Commission asked for the money back. Boaz said he couldn't repay the grant, which means the city could be on the hook for all or some of that $800,000.

The Martinsville city attorney said he had Harris in mind when he sought the judge's order. “Ural Harris has a tendency to second guess everything the city does,” he said. “I was not going to have him (essentially) direct our investigation.” A city council member supported the order, adding that Harris had been asking for "sensitive stuff."

Though sealing records of internal investigations is not unusual, VCOG's Megan Rhyne wrote in a blog post that the timing of the order is bothersome, as is the position that a citizen's request for "sensitive stuff" is a grounds for seeking such an order. 

"If the investigatory records should have been sealed from the beginning, then do that in the interest of protecting the integrity of the investigation," she wrote, not because the records are "being requested by someone who bothers the snot out of you."


Open government in the news

The president of George Mason University has ordered an inquiry into whether big-money donors are being given undue influence over academic matters, after documents were released to the student group UnKoch My Campus in a Freedom of Information Act request, showing that the Charles Koch Foundation had been given a voice in hiring and firing professors. 

A Chesterfield County judge agreed with the county that it did not have to turn over police officer body-worn camera footage taken during a traffic stop of a Virginia State University student. The judge agreed that the record is exempt as part of a criminal investigation. The police chief had previously said he didn't want video to be edited and that widespread dissemination of such videos could lead to the targeting of police. "Posting police videos on the internet is not a self-evident public good," he said.

Meanwhile, the Richmond police department said it would release video footage of the police shooting of an unarmed, naked man who charged at officers in the middle of a busy interstate.

Leesburg defended its decision not to list the arrest of a well-known white nationalist among the town's regular arrest reports. A police spokesman called the omission a "data entry error." The town later denied a FOIA request for records related to Chris Cantwell's arrest for public intoxication because the "matter has not been adjudicated."

The City of Virginia Beach will begin encrypting all of its police scanner transmissions, which means neither the public nor the media, which has long relied on scanner information to report on incidents for the public, will not be able to listen. The move was not announced, but was noted in a budget request. Police cited five instances where the public's ability to hear police in real time impeded their work. Other cities encrypt encrypt at least some of their signals, but few encrypt all of them.

A Texas principal accused of expelling a student who stayed seated during the Pledge of Allegiance and a Utah high school accused of censoring its student newspaper have been bestowed Jefferson Muzzles, tongue-in-cheek awards from a free-speech group.

The Hopewell Electoral Board chose a replacement to take the registrar's job after the longtime registrar retired, but it did so without taking a vote in public. The three members held a closed-door meeting and announced their choice afterwards.

The Department of Corrections refused FOIA requests for records related to what it knew about John Tucker Hardee Sr.'s living conditions and possible probation violations. Hardee, who was arrested for the death of his live-in girlfriend's 2-year-old, was forbidden from being alone with children because of a conviction for maiming his son. The DOC told The Virginian-Pilot that it commonly withholds records related to adults on probation.

A Bedford County judge granted the motion of one newspaper and four television stations to allow cameras in the courtroom during the capital murder trial of an alleged MS-13 gang member. The judge said his experience was that proceedings are "much more orderly" when cameras are present.

At the end of one of its meetings, the Charlottesville City Council presented an unexpected resolution granting the city attorney authority to retain outside pro bono legal counsel for any pending litigation. The council approved the measure despite the lack of prior notice to the public about the suggestion.

The Charlottesville City Council came out of closed session in late May and announced it would not renew the contract of the city manager. Questions arose about whether the council's decision a public vote.

Despite issuing a news release that said the death of a missing 17-year-old girl was "an isolated incident and there [was] no public safety," The Warren County Sheriff's Office would not say what the teen's cause of death was because it was still under investigation. The Manasssas medical examiner's office later denied a FOIA request for records related to the death saying the sheriff had asked the office not to release any information.

The University of Mary Washington student newspaper was pulled back from the brink of closure at the end of May, nearly a month after the Student Finance Committee said in a letter to the paper's editor that her request for $13,665 in funding was being reduced to $100 for office supplies. The Student Press Law Center had indicated it might sue UMW if it was found the funding reduction was an attempt to control past or future content.

Though a new investigator tasked with investigating more than 50 deaths in the state's jail system has completed work on 17 cases, the investigation findings are not being made public.

Alexandria kept city residents in the dark for months about its plans to eliminate the southern entrance to the Potomac Yard Metro station because it had signed a confidentiality agreement with Metro that prevented disclosure of any information about the proposal.

Social media posts claiming Pittsylvania County officials violated state open records law by voting in two closed meetings prompted a board of supervisors news release stating that the body has acted "in full compliance" with FOIA.

Danville police issued a press release that a person of interest in a local homicide had been located in Greensboro, North Carolina, without mentioning the fact that the person was captured after a shootout with Greensboro police. The police only said that it wasn’t the Danville department’s place to mention the Greensboro shootout in the news release. The department would have handled the situation the same way if it had happened in Pittsylvania County, a police spokesman said.

The Federal Reserve Bank of Richmond released a record related to its efforts to field candidates for various positions after initially claiming the the agency wasn't subject to the federal FOIA request.

After his state court petition was dismissed, the former head of Newport News/Williamsburg International Airport filed a similar lawsuit in federal court alleging defamation against several airport employees and the Daily Press. Ken Spirito alleges the employees defamed him by speculating in text messages quoted in the Daily Press that Spirito was shredding documents that might be of use in what was then an investigation into the airport's use of taxpayer money to help prop up a struggling airline.

A federal judge ruled that President Donald Trump’s practice of blocking critics from his Twitter account violates the First Amendment, a decision that could affect a Loudoun County man's suit against the county board of supervisors chair for temporarily blocking him from her Facebook page.

Purcellville citizens set up folding chairs and tables outside the doors of a room to wait out the town council, which met in closed session for five hours to disuss “personnel investigations of town employees” with legal counsel. The town has already spent hundreds of thousands of dollars on outside attorneys as part of an investigation into the investigation of the police chief and the ouster of the longtime town manager.

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Williamsburg, Virginia 23187

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