Sunshine Report for June 2024


the month that was
may '24


Maybe it was the excitement that summer is just around the corner. Or maybe everyone is just so distracted by national politics that they've forgotten how to act. But May was, um, eventful. We had lawsuits and briefs filed in lawsuits. We had FOIA Council meetings and opinions. And we had a few choice words to add to each. We also welcomed our summer intern, introduced our new car magnets and kept track of the wild spending of some public officials -- made possible with records that will continue to contain the name of the user, thanks to legislation proposed by VCOG.

Read on!

Yes, this is a cat. But it's a cat with a curious message on its belly. It says, "2.2-3700," and IYKYK (if you know, you know), that's the number given to FOIA in the Virginia Code generally, and specifically, it's where FOIA's policy statement can be found:

The General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.

We've got car magnets celebrating this powerful statement. Show that you know what's what, and that you're a supporter of transparency in government and of the Virginia Coalition for Open Government.


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We'll be brief


VCOG filed a friend of the court brief in the case Minium v. Hines. Drafted by Joshua Heslinga and Christoper Gatewood, both members of the VCOG Board of Directors, the brief asks the Virginia Court of Appeals to reverse a Hanover Circuit Court judge's ruling that allows the county sheriff to redact the names of hundreds of police officers from his salary database on the theory that the officers might some day be used in undercover operations. The brief argues that  §2.2-3705.1(1) is "unambiguous and decisive" when it states that “[n]o provision of this chapter” shall be construed as denying public access to “records of the name … of any officer, official, or employee of a public body,” and certainly not by a discretionary exemption for information that would reveal undercover operations.


Meanwhile, the Attorney General's office filed an amicus brief in a case between a locality and a citizens group, arguing that the working papers exemption shields basically everything that comes into the office of the named individuals. VCOG has filed a brief in that case, too. (See comments below).


And, The Daily Progress has filed a lawsuit against the University of Virginia over its continued refusal to release even a redacted copy of the external investigation report commissioned by the school's board of visitors in the wake of the shooting deaths of three football players by their former teammate. The paper survived a motion to dismiss the case in early May, and a trial on the matter could take place this summer. VCOG has vocally criticized the university's position, which is based on a notion that release of the report will jeopardize the suspect's right to a fair trail, even though the report is not about his guilt or innocence, but about the things he and the university did and didn't do leading up to and after the shootings.



Government, citizens?

By statute, the FOIA Council is supposed to have multiple citizen members. VCOG is even written into the statute as a source for recommendations. Yet, the council's citizen seats are dominated by government employees.



AG's amicus brief

The Attorney General has filed a friend-of-the-court brief in a case challenging the Town of Warrenton's interpretation of the working papers exemption. The AG has some interesting notions about the burden of proof in FOIA cases.


Is there an attorney in the house?

The FOIA Council issued an opinion May 29 that explores the contours of the closed meeting exemptions for legal matters and litigation. In the council's opinion, the exemption for discussion of actual or probable litigation does not require that legal counsel be present at the discussion. Briefings about actual or probable litigation can be done by staff members or consultants. On the other hand, the exemption for consultation with legal counsel on specific legal matters does require that legal counsel be present. 

The FOIA Council met in late May to pick a new chair (Del. Marcus Simon), introduce new members and set a work plan for the next few months. Following an enactment clause from Sen. Danica Roem's bill on FOIA fees, the council gave the go-ahead to staff to start convening stakeholders. No council members were appointed to this workgroup, though VCOG urged the members to get involved to ensure the strongest consensus proposal possible. The council also appointed Cullen Selzer (who is scheduled to rotate off the council July 1) and Corrinne Louden to a workgroup being convened by the Virginia Department of Agriculture and Consumer Services and the State Council of Higher Education for Virginia to study records of animal testing at public universities. VCOG is also a part of that workgroup.




VCOG is happy to introduce Amanda Millis, our 2024 Laurence E. Richardson Legal Fellow. Amanda is a rising second-year law student at William & Mary. She graduated from W&M last year with a degree in government, and she served as an archival assistant for the Warren E. Burger Collection at William & Mary's Special Collections Research Center. Amanda is also a lifelong dancer. She has taught ballet and contemporary dance, managed a nonprofit dance studio in Chapel Hill, N.C., and served as a co-author on an upcoming publication about Black ballerinas and political activism. Amanda's work for VCOG will focus on rules for agendas in public meetings, something we all witnessed last month when the Petersburg City Council abruptly amended its agenda and picked a casino contractor without warning. Stay tuned to find out what Amanda turns up!

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open government in the news


Shortly after the Petersburg City Council abruptly canceled its RFP and chose a developer to build a casino in town, a labor union opposed to the decision announced its plan to file a FOIA case against the council. Unite Here says that the motion made to go into closed session prior to the vote was improper and asserts that matters outside the scope of the motion were discussed.

Petersburg refused to release any records related to the winning proposal of the casino development. The city said that since it canceled the RFP process, the bids were all still procurement record, access to which are regulated by the Virginia Public Procurement Act, rather than FOIA.

Bedford County Public Schools, represented by attorneys from Sands Anderson, walked back a lawsuit demand for $600,000 in damages from a district parent. The suit -- which alleges the father has been abusive to staff in advocating for his special-needs son -- remains intact, but the district is now asking for only $1 in damages.

The University of Mary Washington refused to disclose 10 emails between it, the governor's office and Virginia State Police in the days leading up to the arrest of 12 people participating in campus protests. Some of those records are prohibited from release by the statute setting up the Virginia Fusion Intelligence Center, the university said, and others are the governor's working papers. The governor's office rebuffed a similar request with the same exemption.

During the pro-Palestine demonstrations on the Virginia Tech campus, protesters claimed that the university was complicit in Israel's war in Gaza because Israel uses drones developed by Virginia Tech. Through a records request, Cardinal News determined that the only public connection between the two is a Federal Aviation Administration issue related to an insurance company that wanted permission to fly drones over moving vehicles.

As part of its justification for calling in Virginia State Police to break up a pro-Palestine demonstration on campus, University of Virginia police referred to four men in black, wearing helmets and backpacks. The university has not released any further details about this quartet, but a review of court records by The Daily Progress indicates that none were among those arrested.

The York County School Board canceled a planned retreat and training session after questions arose about notice given to the public about the retreat. Notice was given on Monday for a Friday event, but the board's attorney said she thought notice should have been given in late March when the retreat was first scheduled. 

A member of the Augusta County Board of Supervisors challenged his colleagues for adding approval of meeting minutes to the consent agenda where matters are voted on in a block, without discussion of individual matters unless they are removed from that block. The supervisor asked for the removal because the minutes did not include questions he asked the two nominees for board chair and vice chair.

The Richmond Police Department turned over the criminal investigative files related to the 2022 claim by the former chief of police that there was a plot to carry out a mass shooting at a July Fourth fireworks display at Dogwood Dell. Parts of the file were withheld entirely or redacted, but what remains showed what Richmond police knew and when.

The counties of Lee, Pulaski, Scott and Washington released records of a wide-ranging money laundering scheme among area cannabis-related stores that had been under seal. Montgomery, Roanoke, Tazewell and Wythe counties said similar records would remain under seal in their jurisdictions, and Smythe County said no related documents were filed there.

The Fairfax County Police Reform Matrix Working Group said it was essentially locked out of working with the Fairfax County Police Department on the working group's recommendations. The group said that the department has repeatedly told them that they have to file a FOIA for any department information.


A member of the Winchester City Council refused to agree to the motion certifying a closed meeting. Members of a public body must make a motion before going into closed session -- which the city insists on calling an "executive session" -- and then the members must make another motion when the closed meeting is over, certifying that the only matters discussed were the ones mentioned in the initial motion. The council member said that they discussed matters that should have been talked about in public. A FOIA request by The Winchester Stae led to documents -- some almost entirely redacted -- that pointed towards a closed-door meeting to discuss the fact that the council member reached out to the Virginia Municipal League for professional development advice.

The Spotsylvania County School Board chair abruptly adjourned a meeting when two members continued talking about the sanctioning of a third even after being asked to stop. The board eventually voted to rescind the sanction, but that didn't mean everything was rosy. Instead, the member who had been reprimanded swore out a warrant accusing another board member of assault and battery for allegedly slamming a door into her shoulder and trying to trip her.

Records obtained by the Associated Press about conditions at the Marion Correctional Treatment Center revealed that inmates were hospitalized 13 times over three years for hypothermia.

Richmond officials suspended the general registrar's purchase card while the registrar is under investigation by the city's inspector general's office for claims of nepotism and financial impropriety. Records obtained through FOIA by the Richmond Times-Dispatch showed that the registrar spent nearly $70,000 in 2023, including $15,000 for furniture, $8,903 at a local art supplier, around $6,500 on hotels and lodging and over $6,000 on food and beverages. The city said there were no records of any mileage log for a city vehicle assigned to the office.

The former superintendent for Petersburg schools charged more than $22,000 over 15 months traveling to conferences, where she sometimes booked more than one room for herself. According to WTVR, $22,000 is more than double what the Henrico County superintendent spent, 14 times what the Hopewell superintendent spent, and 43 times what the Chesterfield superintendent spent on travel during that same time frame. The revelation came a week before the TV station again used FOIA to show a $140,000 payroll error that the then-superintendent chalked up to a policy that did not exist.

A Roanoke City Council member abstained from voting on a $5,900 school appropriation even though she had previously voted on school funding matters. The city's attorney said some things had changed, but did not elaborate. The city then denied a FOIA request for related records from The Roanoke Times, saying they were attorney work product and subject to the attorney-client privilege.

Despite its previous statement that members of the public could watch video footage of a Chesterfield County police officer shooting a mentally ill man who was carrying a weapon, the county police department reversed course and said the video was no longer available. The man's family has repeatedly asked that the video be made public.

Though it wasn't on the agenda for the Orange County School Board's work session, May 20, where no public comment period was scheduled, a majority of the members agreed to amend the agenda and then vote to withdraw their membership from the Virginia School Boards Association.

Records obtained through FOIA by The Virginian Review showed Covington has been operating without a certified building official for almost three years, is facing potential fines due to multiple violations at its water treatment plant, and has allowed 10 or more unpermitted public and private events in a building that is still under construction.

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Virginia Coalition for Open Government

P.O. Box 2576
Williamsburg VA  23187