Sunshine Report for June 2022


It's good to be back in person!

VCOG held its first in-person conference since 2019 on a beautiful spring day in May at the equally beautiful setting of the Lewis Ginter Botanical Garden.

After first being welcomed by the Dan Schmitt, the Henrico supervisor whose district includes the gardens, the audience of approximately 50 people dove right into a panel on the ever-increasing financial cost of obtaining public records. The biggest takeaway was that until or unless there is a fix, the best practice on both sides of the counter is to pick up the phone and talk to each other about what's driving up the cost and what steps can be taken to get the requester what he or she wants.

Next up, Alan Gernhardt of the FOIA Council went over some of the bills related to FOIA that passed this General Assembly session and a few that did not. He fielded many audience questions about a new -- and confusing -- provision related to fees. When asked about passing the cost of preparing an estimate on to the requester, Alan had this to say: "Just don't."


After a short break, there was a presentation on Zoom by Pennsylvania attorney Joy Ramsingh (above) who made the case for media and open government advocates drafting a model open records bill. (See sidebar)

The next segment featured an interview of sorts with a local activist from the town of Richlands. Laura Mollo stunned audience members with the many obstacles she has encountered while trying to get records and keep meetings open to the public on issues like the town's 911 system, the town's power grid and the overlap of individuals wearing multiple town-government hats. Her more than two-year effort has prompted her to run for town council.

The half-day event closed out with a panel on the many different and clashing interests bound up in the term "privacy," and how they interact with principles of open government.

The conference raised around $5,000 for VCOG, which is certainly less than what we've had in the past but is actually in keeping with our expectations, as we wanted to test the waters to see how many people would want to be in person, whether a half or a whole day works better. Still, we were supported by many wonderful people and organizations. You should check them out on VCOG's conference website. You can make a donation to the conference -- even after the fact -- while

- M.R.

ULC taking on public records . . . without advocates for public records

Literally hours after Joy Ramsingh talked about open government advocates mobilizing to draft a model open records statute, the Uniform Law Commission reached out to the National FOI Coalition (which VCOG will be taking over as administrator come July 1) to let open government advocates know about a study committee that was formed last summer and has been meeting since January.

The study committee's charge was to study whether a model law should be drafted for "the redaction of personal information, particularly with respect to judges and other public officials, from real property records and other official public records in order to address safety concerns."

Notes from the previous meetings show a much wider-ranging discussion, moving into redaction of information from all government databases, expanding the pool of eligible public employess and including some private individuals, making redaction mandatory and allowing redacted records to remain indefinitely. On the other hand, they have also talked about applying it only to public-facing databases. Only passing mention has been made about open records laws or the First Amendment presumption of access to court records.

Nor has the committee appeared to have discussed the impact of creating an anonymous public employee workforce, including the inability to monitor conflicts, cronyism or corruption. There also seems to be a misconception that redacting information from a government database will somehow protect individuals, given the many commercial databases that are out there and the fact that friends, neighbors, workmen and delivery people know this information just from their day-to-day interactions.

Stay tuned...


Back in training

VCOG's Megan Rhyne gave a presentation on FOIA and why access to government records is an important part of our democracy to Henrico citizens at two town hall meetings sponsored by Pat O'Bannon, current chair of the Henrico Board of Supervisors and longtime VCOG board member.

Following the FOIA presentation, the chief of staff for the county administrator talked to the audience remotely about the different ways the county provides information to the citizens.

The 1-2 punch of FOIA and proactive disclosure led to some musings on why some public bodies "get it" and why some don't. Read Megan's column, "Just Don't," on Substack or VCOG's website.

Developing best practices for all-virtual emergency meetings

VCOG has been participating in a workgroup convened by the FOIA Council at the direction of an enactment clause attached to new legislation governing the use of electronic meetings during non-emergency times. The workgroup, which, by legislative direction, includes VCOG, the Virginia Press Association, the Virginia Association of Counties and the Virginia Municipal League, and has also been attended by the school board association and several state agencies, is formulating a list of best practices for an all-virtual meeting. We have discussed issues such as public comment, the use of video, taking votes, the chat function and more. The group has met twice and has one more meeting to go before the FOIA Council gathers everything together into a resource publication for its website. Details can be found on the council's 2022 subcommittees pageThe underlying bill goes into effect Sept. 1.

(And speaking earlier of the Uniform Law Commission, another ULC committee drafted a model bill for holding all-virtual electronic meetings during an emergency. Virginia had an emergency provision in place before the pandemic, which was tweaked in last year's session to incorporate things learned during the pandemic. Most of what is contained in the proposal is already contained in Virginia's law.)

Open Government in the News

A WTVR reporter thought the estimate he got back from his FOIA request to the Virginia Fine Arts Museum was too expensive -- $1,1000 for five months of email between 12 VFMA officials using specific keywords -- so he narrowed his request to just one person's email, plus correspondence with the governor's office. It must have been that addition that tipped the balance because instead of a less expensive estimate, VFMA said it would now cost $28,054.

Tensions rose between the superintendent of Alexandria's public schools and some members of the school board over edits made to a plan to create a law enforcement advisory group. The superintendent said edits made by the five board members were "extremely problematic," “inappropriate,” “disrespectful” and possibly in violation of FOIA. One board member shot back that edits were made on a one-by-one basis and so complied with "Sunshine Laws." He also said he made edits because, "I didn't come here to uphold the status quo or be a rubber stamp."

Another year, another bevy of complaints by the public and press over the lack of access to budget talks between House and Senate money committee members. Though committees, including "joint committees of conference of the General Assembly" are supposed to be open to the public, according to 2.2-3707.01, talks are kept not only from the public but also from many legislative members. Del. Barry Knight, the House Appropriations chair, said the conferees "didn't know anyone else was interested" other than the two reporters the committee picked to brief on the eventual compromise. Del. Rob Bloxom added that details aren't made public because when someone stakes a position in the media, if they change their position at all, they’re seen as the loser.

The Virginia Attorney General’s Office questioned the volume of redacted records filed at the State Corporation Commission related to the cost of Dominion Energy’s proposed offshore wind farm. Though redaction isn't unusual in SCC filings, the agency does have a general presumption of public disclosure.

The Town of Leesburg and Loudoun County continued to talk about a revenue-sharing agreement between the two entities, but their respective attorneys squelched attempts by a town councilman to take the specific negotiations public. The attorneys said the bodies should not publicly discuss specific monetary amounts and urged a closed meeting for that purpose, though it is unclear what exemption would be used.

A Loudoun County Circuit Court Judge ruled the school board violated FOIA when it ended a raucous public comment period at its June 22, 2021, meeting, cleared the room and then continued meeting without the public present.

A different Loudoun County circuit court judge dismissed charges of obstruction and resisting arrest lodged against the parent of a sexual assault victim. The parent was dragged from a school board meeting in May 2021 after yelling at board members over their inaction. A charge of disorderly conduct remains.

A Roanoke general district court judge agreed with Virginia Tech that the Family Educational Rights and Privacy Act forbids the university from releasing any information associated with a former student's name, including the volume and subject matter of any possible records.

The Warren County Sheriff's Office refused to release video footage of a traffic stop where force was used against a 77-year-old man with dementia and the man died from injuries two weeks later. On the other hand, the Front Royal Police Department released video from the same incident taken by one of its officers on the scene. Warren County said release of the video would jeopardize an ongoing investigation or prosecution.

Members of the Staunton City Council continued to fuss at each other, adding another chapter to the division between two distinct blocks on the council. After Brenda Mead's request for a closed meeting to discuss appointments to the city's equity and diversity board was refused, she began talking about the demographic makeup of the finalists in open session. The vice mayor said doing so was "absolutely egregious in the max."

In Pittsylvania County, the chair of the board of supervisors said he was concerned that the name of a potential candidate for the county administrator's job had been "leaked" on Facebook,  thus contaminating the overall process. Other board members noted that they had been left out of the search process, including in not having a say in the job posting, which said prior county management experience was not required.

When the Richmond Times-Dispatch asked all 132 public school systems for records related to books that had been removed or placed under review in the past two years, 113 responded with an answer, six did not respond to the request, while two others followed up with expensive cost estimates for the information. Chesterfield schools said it would cost more than $4,000 to get records related to the questions. It was unclear how the remaining 11 responded.

The Stafford School Board's decision to reduce the number of meetings it holds each year -- from two a month to once a month -- met with criticism from two dissenting members, one of whom said, "I have concern about information items presented during a work session rather than the meeting because work sessions are not televised and we don't have as much of the public attending." 

While acknowledging that a document existed in which the attorney general's office gave its opinion to a member of the Virginia State Air Pollution Control Board regarding Governor Glenn Youngkin's desire to pull Virginia out of the Regional Greenhouse Gas Initiative, the AG's special counsel declined to release the record to the Richmond Times-Dispatch, citing the discretionary FOIA exemption for legal advice.

A Warren County general district court judge ruled that the Property Owners of Shenandoah Farms Inc. had to comply with FOIA because of its role in managing or potentially managing Farms Sanitary District projects. On the other hand, the judge found there was nothing to establish that POSF had received a FOIA request from the citizen who brought the suit.

Thanks to a grant from the Augusta County Genealogical Society, the Augusta County clerk of court has restored African-American voter records from the early 20th century.

The Virginia Beach Planning Commission approved use of a 160-acre property for a 650,000-square-foot, five-story distribution center but won't say who it's for, though clues point towards Amazon.

The Winchester City Council is investigating a violation of the federal Fair Labor Standards Act in the Winchester Commissioner of the Revenue's Office but won't say any more than that. "I wish I could,"the mayor and council president said while simultaneously saying the council tries its best to be "as transparent, open and honest as we possibly can."

Attorney General Jason Miyares asked the Supreme Court of Virginia to grant his office access to records that the high court refused to release to the Richmond Times-Dispatch in an April court ruling. The records at issue are those filed by the former chair of the Parole Board and current Virginia Beach juvenile and domestic relations judge in relation to a disciplinary proceeding conducted by the Judicial Inquiry and Review Commission. The April opinion granted the RTD's request to unseal some of the records but denied its request to unseal others.

After years of being essentially static, the Town of Quantico took down its website. The town's only online presence now is a Facebook page that occasionally, but not always, posts links to use Zoom to attend meetings. Anyone visiting Quantico has to go through a Marine Corps checkpoint and in-person services in the town have been suspended since March 2020.

The judge in the murder trial of former Virginia Tech football player Isimemen David Etute ruled that witnesses could not testify anonymously. One of Etute's attorneys asked to let some witnesses testify without giving their names, but the judge said naming witnesses is "fundamental to our system of justice."

Three members of the Portsmouth City Council alleged that the remaining four members must have broken open meetings laws in their surprise move to fire the city manager. One member said he was "blindsided" by the motion to terminate the manager's employment and another said one of the four invited the manager to his church and told her to resign "or I have four votes to fire you."

Citing "continued disrespect and ridicule," the embattled mayor of Pound resigned from office. The vice mayor said she will serve as acting mayor -- but with voting powers, which the mayor usually does not have -- until a replacement is elected or appointed. The town is under a deadline to improve its administration or its charter will be dissolved by legislation passed this year.

The FOIA case against the Spotsylvania School Board was put on hold by a circuit court judge until a general district court judge could rule on some other FOIA issues. The general district court dismissed two claims due to what it said was a lack of precedent, but allowed the claim that the board went into closed session without first holding a vote on a motion to do so. The general district court is to hear arguments on that issue July 19. Meanwhile, the plaintiffs "appealed" the dismissal of the other two counts to the circuit court, where the judge questioned the assumption that circuit courts serve as an appeals court for general district court decisions.


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