Sunshine Report for March 2021

Correction: In the "Open Government News" section below, I mixed up what happened during each vacancy refilling process in Suffolk. Suffolk city school board had only six applicants for a vacant seat, not 21 applicants and six finalists. The city council in Suffolk, meanwhile, had a vacancy at about the same time, which it filled from among 21 applicants.

Criminal investigative files: access ahead!

After years and years ... and years ... of advocating for some kind of access to closed, inactive criminal investigative files, VCOG was thrilled to see the passage of HB 2004, patroned by Del. Chris Hurst (D-Blacksburg). The bill looks very different from when VCOG first started working with advocates back in the summer, to when it went before the summer's special legislative session, and then to the FOIA Council and on to the General Assembly. That's owing in part to policy decisions by the powers-that-be but also to the many adjustments Hurst made to be sensitive to the various concerns the many different constituencies had. But what matters is that a bill passed and now requesters -- victims, defendants and their families, researchers, reporters, academics and advocates -- should be able to gain some sort of access to files other states have long made available. What remains to be seen is (a) what amendments (if any) the governor will suggest, and (b) how it will be implemented in real life. VCOG understands that the bill won't magically open up entire case files, but surely the bill gets across the point that it's no longer acceptable to automatically reject requests for those files -- or even individual parts of a file -- without consideration and review. It is -- I hope -- a great step forward to building transparency and trust among law enforcement and the communities they serve.

-- Megan Rhyne



Access denied: OIG, the Parole Board and the administration

In the summer of 2020, the Office of Inspector General caught heat for using arguably inapplicable FOIA exemptions to release only a few lines of a six-page report into complaints against the Parole Board that the OIG said were "substantiated." The full 6-page report was eventually released to lawmakers, but in February, WTVR uncovered a 13-page draft of the report that included  many more specifics about how the board did not follow laws or its own procedures in approving release of an inmate who killed a police officer 40 years ago. The governor's office said it was unaware of the full report, while the OIG vowed to find out who had leaked the draft. Meanwhile, though the General Assembly passed legislation to tighten up the reporting requirements for the Parole Board, the House Courts of Justice Committee once again (it did so in the special session this summer/fall) refused to even hear a bill that passed the Senate and would have subjected the individual votes of Parole Board members to FOIA.


I was awfully honored to receive a "Big Smooch" from Style Weekly. The Valentine's Day honor went out to Richmond-area people of interest, and though I am actually based in Williamsburg, Style Weekly was nice enough to include me anyway since "much of [VCOG's] work has happened in Richmond." Thanks, and a big smooch back: Mwah!

-- M.R.


What's a personnel record?

Mecklenburg County Circuit Court Judge J. William Watson Jr. reviewed seven sets of documents South Hill said were exempt from release as personnel records and concluded that some were and some weren't. In the process, the judge reviewed past cases to determine that "personnel information" should be defined as "all information necessarily compiled and held by an employer, concerning an identifiable employee, which information directly relates to the commencement, continuation or termination of the employment relationship.”


JAUNT is a public body

An Albermarle County General District Court judge ruled that the Jefferson Area United Transportation (JAUNT) service meets the definition of a public body and is thus subject to FOIA. The question raised by radio personality and former city council member Rob Schilling was whether JAUNT was supported "wholly or principally" by public funds. JAUNT said no because many of its public funds came from federal sources. The judge, however, said yes"The Court cannot, on its own and without statutory authority or a binding opinion from a higher court, read into the statute a requirement that the term 'public funds' includes ONLY Virginia state funds and excludes federal funds." 

Sunshine Week

If it's March, it means SUNSHINE WEEK is right around the corner: March 14-20.

Watch VCOG's social media pages for info on General Assembly updatesand Sunshine Week reporting from Virginia's newspapers and broadcast outlets.


Open Government in the News

The Virginia Beach Police Department launched a new crime data system, called the Weekly Analysis for VBPD Engagement and Strategies, or WAVES. The online database provides statistics for four types of violent crimes and five categories of property crime.

After the Virginia Mercury reported that the Virginia Department of Health would not release data on how many vaccinations were going to waste, the VDH provided the data and wrote that previously the department did not have a systematic way to collect reports on wastage; there was no data to release at the time of the Mercury's request, the department said.

Norfolk abruptly canceled media interviews and said it would not longer answer questions about a downtown economic development project. The city cited advice from its city attorney that such a move was necessary "in light of pending litigation," even though other officials had talked publicly in the year since a lawsuit related to the project was filed.

The Isle of Wight School Board entered into a settlement with a county resident in two lawsuits alleging violations of FOIA. The settlement noted the board had given incorrect start times for board meetings and had not been specific enough when going into closed session.

Members of Staunton's city council argued over whether a member of the council who does not sit on the council's nominations committee should be able to sit in on it via a Zoom link. FOIA allows the practice generally, but it doesn't specify whether it extends to virtual participation. The vice mayor said he'd be willing to accommodate the member if she had a doctor's note stating a medical reason why she can't attend in person.

The Staunton City Council also voted to use over $7,000 in taxpayer funds  to pay for the costs accrued by the mayor in a FOIA lawsuit brought by another member of the board (the same one who may be excluded from the nominations committee meeting), which the mayor lost. The member who brought the suit abstained from the vote, but the mayor did vote. One member voting against payment noted that the mayor used an outside attorney instead of someone from the city attorney's office.

In reviewing its policies and initiatives, the Town of Herndon adopted new transparency measures, including ensuring audio and video recording for all meetings, dedicating resources for FOIA requests and making all records available to the public. 

More than four years after a citizen said the Rapphannock County Board of Supervisors had violated FOIA's meeting provisions and filed two lawsuits against it, the county agreed to pay the citizen $18,000 in costs and attorney fees, far less than the $132,000 the citizen's attorney sought. The county attorney insisted the $11,946 of the total had "nothing to do with taxpayer money except for the premiums we once paid" to the insurance company.

In an effort to increase accountability, transparency and public trust, Winchester's Chief of Police, John R. Piper, released the video of an officer-involved shooting of a man who pointed a semi-automatic rifle at police from his front porch.

A month after a 12-year-old boy was killed in what was eventually confirmed as being a hand grenade explosion, police in Abingdon were still not releasing the victim's name or many details around the incident. The Bristol Herald Courierlearned the boy's name much earlier when his father sent an obituary into the newspaper.

A former member of the Arlington County Board of Supervisors asked whether "any consideration [had] been given" to posting the board members' conflicts of interest forms to the county's website.

A federal district judge ruled the Frederick County Public Schools' social media accounts were public forums and school system leadership “engaged in unconstitutional viewpoint discrimination” by blocking a parent and deleting her comments criticizing the system’s COVI protocols and face mask policy.

The Senate clerk's office edited video of the Judiciary Committee's interview of judges, excising the f-bomb dropped by Sen. Ryan McDougle as the interview became tense.

Harrisonburg officials and business representatives each pointed to the other as the reason why they could not release information on economic development projects going on in the city, even though one project had already literally broken ground.

The Elkton Town Council held a meeting Feb. 16, at least that's what they public assumes happened. The livestream feed of the meeting cut off early, was restored 10 minutes later, but then cut off again. Since the town did not allow the public to attend in person, the video feed was the only way for the public to observe the meeting.

The Virginia Tech athletic department provided The Roanoke Times with salary figures for the football team's 2021 coaching staff but refused to provide information on coaches who had taken pay cuts in 2020.

Lawyers representing former students who sued Virginia Tech over disciplinary action for taking part in a "blood pinning" ritual by the Corps of Cadets fired back at the university over what they said was a breach of their settlement's confidentiality provisions. A Tech spokesperson said Tech was "pleased with the outcome" that affirmed its practices and procedures. But that is "incorrect," said one attorney, while the other explained that the university expunged the disciplinary actions from his clients' records.

Front Royal's town council considered amending its public comment period by moving it to 30 minutes prior to the meeting's start and by not live broadcasting it.

The Suffolk City Council appointed someone to fill a vacant seat on the council but did not reveal the names of others who applied but were not chosen. Meanwhile, the chair of the city school board said there was “a false and misleading statement posted on Facebook” that the board was meeting illegally to pick someone to fill a vacancy on that board. The board said it got 21 applications, but publicly named only six finalists before selecting one.

The former town clerk of Hallwood on the Eastern Shore pleaded guilty to 12 of 65 felony embezzlement charges against her. The commonwealth's attorney acknowledged the difficulty in proving the counts because town records were destroyed in a car fire. The car belonged to the clerk.