Sunshine Report for June 2020

Virginia Coalition for Open Government
The Sunshine Report
June 2020 
The May Sunshine Report included an item that gave the incorrect impression that it was Fairfax County who initially said FOIA requests were on hold because the schools were shut down. The entity making that claim was Fairfax County Public Schools.
High court rules for citizens in FOIA meetings case
The Supreme Court of Virginia issued a unanimous decision May 28, finding the Smyth County Board of Supervisors did not give proper notice before going into closed session and talked about a topic not covered by the claimed exemption.

Two of the seven people the board removed from the Smyth-Bland Regional Library Board of Trustees sued the county over their removal. At public meetings months later, the board went into closed session under section 2.2-3711(A)7) for "discussion with legal counsel and staff pertaining to actual or probable litigation." At a later meeting, without any public discussion, the board voted to disband the library, saying it was too costly to continue operation.

The president of the Friends of the Smyth-Bland Regional Library sued under FOIA, saying the motions to go into closed session were inadequate. She also argued the board talked about economic matters related to the lawsuit, which weren't covered by the exemption for actual or probable litigation.

A circuit court judge sided with the county, but the Supreme Court reversed. The notice was improper, the court ruled, because it made only general references to the subject matter and code section, something specifically prohibted by FOIA. And it did not list the purpose of the meeting, which the court said would be "an 'issue' or a 'thing in dispute,'" citing Black's Law Dictionary.

And while the board could have discussed the lawsuit in closed session, the economic impact of closing the library as a whole was not part of that lawsuit. "Public disclosure and discussion of the economic viability of contiuing the operation of the Library would not have adversely affect the Board's litigating or negotiating position in the action brought by the plaintiffs in the [lawsuit]."

Read the full opinion on VCOG's website.
FOIA Council changes
Delegates Marcus Simon (D-Falls Church) and William Wampler (R-Abingdon) were named by the House Speaker to sit on the FOIA Council, replacing Delegates Luke Torian (D-Dumfries) and Glenn Davis (R-Virginia Beach). Amigo Wade, acting director of the Division of Legislative Services, has taken the seat vacated by Mark Vucci. Wade has been the staff attorney to the Senate committee that hears most FOIA-related bills.
Open government in the news
An spokeswoman for Virginia ABC would not release the name of an ABC employee who died of COVID-19, citing the Health Insurance Portability and Accountability Act, even though the ABC is not a covered entity under the federal statute. The spokeswoman said the guidance came from the attorney general's office and the Department of Human Resource Management, which confirmed that it "advises all agencies to comply with the Privacy Rule within HIPAA as a best practice."

The governor's administration continued to withhold the names of nursing homes where COVID-19 outbreaks have occurred, citing existing state law, even as legislators of both parties called for more transparency. Meanwhile, the federal Centers for Medicare and Medicaid Services said it planned to post the name of such facilities online, along with the number of positive cases and deaths among both residents and staff. The Virginia Department of Health also confirmed that it was providing 911 dispatch centers with the names and addresses of individuals who had COVID-19 so first responders could be prepared with personal protective equipment if required to provide service any of them.

When the House of Delegates met outside under a tent on the Capitol grounds for the so-called reconvene session in April, it cost the Virginia taxpayers more than $46,000. The Senate, which met indoors at the Science Museum of Virginia, though which also has fewer members, spent less than half that amount: $20,000. Meanwhile, the attorney general's office released an opinion May 8 confirming that the governor's budget amendments relaxing the rules for public bodies to meet remotely during the Coronavirus emergency could apply to the General Assembly, provided all procedural requirements are met. Those include providing the public with electronic access and distributing minutes of the proceedings.

Who was a member of the various advisory groups Gov. Ralph Northam assembled to advise him on aspects of the Coronavirus emergency response and when the workgroups were meeting was not always readily available. Agendas and public comment opportunities were not available, either, nor were meetings publicized on the state's clearinghouse page for state government meetings. Meanwhile, some members of the group that met to discuss how to reopen various businesses said they were surprised to see items never discussed among the group included in the governor's guidelines for Phase One openings. 

The Virginia Department of Health delayed but eventually released the names of the 55 hospitals would were to receive a share of remdesivir, the medicine that has shown a moderate effect on COVID-19.

The Virginia Department of Emergency Management released the $573,680 contract it signed with a consultant to advise it on strategies to reopen Virginia's economy, but not without some controversy. The contract had been redacted to withhold bits of information for which an exemption would not apply, including the name of the person who signed the contract for the consultant and which state's law would govern if any disputes arose. Roughly 120 pages of reports or recommendations that the consultant issued with the contract were withheld from The Virginia Mercury.

The Supreme Court of Virginia ruled the Dickenson County Commonwealth's Attorney was not absolutely immune from a defamation claim made by a former employee over false statements the CA made to members of the pair's shared political party about the reason why the CA fired the employee. The circuit court erroneously applied a federal immunity analysis. The statements were made within a context that did not share enough of the characteristics of the judicial process to qualify as "performing judicial functions," as required under the applicable Virginia immunity laws. 

For the first time, the Supreme Court of Virginia live-streamed audio of its writ panel session on May 15.

Hanover County proceeded with its vote on the controversial proposal for Wegman's grocery story to build a distribution center in the county, even though citizens had argued the decision should be postponed until people could attend in-person. The board solicited written comments that were read into the record prior to voting to approve the project. Meanwhile, the Chesterfield Planning Commission postponed action on a mixed-use development proposal to give the public more time to review the proposal's details. 

Citing a backlog of city business and a belief that "virtual meetings are inconvenient and not the most efficient," the mayor of Virginia Beach announced that the city council would be meeting in-person in a space where up to 45 people, including council and staff, could be physically present.

The Prince William County Board of Supervisors voted to submit a FOIA request to the county school division for records related to the superintendent's use of his official Twitter account to directly contact students through the platform's direct messaging feature. The request comes on the heels of a similar request filed by a local citizen who was told that his initial request for similar messages yielded at least 10,000 records over a 14- to 16-month period. The citizen agreed to narrow his request to messages between the superintendent and 10 students.

Arlington County announced it would be releasing data on payments to vendors through the county's Arlington Wallet portal. The announcement came after a resident requested such data and was told it would cost $8,750 and take 250 hours to produce it.

Under a policy change drafted by the attorney for the Suffolk School Board, each member would be polled before any other member could have an item placed on a meeting agenda. If all members agreed, the item could go on; if just one person disagreed with the proposed agenda item, the full board would vote on whether or not to include it at its next meeting. Two members of the board wrote an op-ed to oppose the policy, saying the policy went against Virginia School Board Association guidance and was an attempt to stifle board members and the public. The board discussed but did not act on the proposal at its May 14 meeting.

The Amherst town councilwoman who was expelled from then voted back onto the council last year was unable to convince her fellow members to recommend changing the town charter to prevent a similar situation in the future. Janice Wheaton wanted the charter changed to require the council to disclose to the public why a member might have been expelled.

According to emails obtained by The Daily Progress, the Charlottesville city manager has asked city council members to have a series of small-group meetings (so-called 2-2-1 meetings) to discuss the process of removing Confederate monuments in the city.

Lynchburg declined to reveal exactly how much the city's insurer will pay to settle a federal lawsuit against two former police officers who shot a man in his home in 2018. The city attorney acknowledged that the city paid out its entire $500,000 deductible to settle the case but said the city's insurance pool picked up the rest. The city manager added, "I do not know anything other than the case was settled and it's behind us. I do not know that number, nor do I want to.”

National Public Radio sued the U.S. Transportation Security Administration in a Virginia federal court over a denied federal FOIA request for communications between TSA officials regarding the Coronavirus.
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VCOG will be holding its 2nd annual Media Awards in November 2020. We will be seeking entries through the end of July.

For award guidelines and deadlines, click here.


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You know what's as valuable as your membership dues and financial gifts? Office supplies! We've created a list of everyday office supplies (and a few wish-list items) on Amazon Smile. Next time you're shopping on, find VCOG's "charity list" and keep us rolling in paper and ink (and stamps, and file folders, and...)
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