Sunshine Report for May 2016





The Sunshine Report: Online
Transparency News from the
Virginia Coalition
for Open Government
May 2016

VCOG updates

Congratulations to VCOG's Secretary Olga Hernandez for being named the Fairfax Citizen of the Year by the Fairfax County Federation of Citizens.

Do government employees who handle records management and FOIA want training? YOU BET!! The response to VCOG's most recent offering of a FOIA and records management workshop has been overwhelming. It's not unusual for us to attract 100 or so state and local government employees, but this time out, we reached the 100 mark in just the first week. The workshop is May 19 and we're now up to 170 attendees. We will soon have to close registration due to space constraints. A big THANK YOU to those who have signed up and who are on the lookout to improve on their FOIA and records managment skills.

FOIA Council update

The FOIA Council will meet May 4 to discuss bills referred to the council by the General Assembly and to begin initial consideration of what will be an omnibus bill containing fixes to FOIA suggested throughout the course of the council's three-year study. The public is encoraged both to attend the meeting and to submit oral or written comments about the drafts.

The agendas and drafts for the meeting are here

4ColorCapitol copyTransparency Virginia, part II

In 2015 the group Transparency Virginia released a report showing that 76% of bills defeated in the House of Delegates, and 7% of Senate bills, were defeated without a recorded vote or without any vote at all.

Many lawmakers expressed alarm and pledged to do better. And when the House went into the 2016 session it took two positive steps to back that up, eliminating meetings at member desks on the House floor and implementing an online meeting notification system that was widely praised.

Unfortunately, the numbers on recorded votes didn’t improve; in fact, they got worse. In its 2016 report, Transparency Virginia found that 95% of bills that died in the House did not receive a recorded vote or a vote at all. In the Senate, the number went up to 10%.

The report took a long view, too, comparing numbers on defeated bills during the 2005 General Assembly session, which was the year before the House adopted new rules giving subcommittees authority to defeat bills and to do so without recorded votes.

In the year preceding the rule change, the incidence of unrecorded votes to defeat bills was flip-flopped: only 3% of bills in the House were without recorded votes, but 50% of the bills in the Senate were.

The 2016 numbers were roughly mirrored by the Virginia Public Access Project, who released its own set of graphics on unrecorded votes, finding 68% of bills in the House and Senate combined died without a recorded votes. Transparency Virginia’s numbers were broken down by chamber and then by committee, but if combined, they reflect a rate of 66%.

The report called on the Senate to adopt the same initiatives offered by the House at the start of the session and it reminded both chambers that nothing — not the subcommittee system, large dockets or a fast pace — requires an unrecorded votes. It’s become a common practice, but it does not have to be that way. It is a basic service to the people of Virginia.

Read the Transparency Virginia report here

SCOVA to consider scope of legislative privilege

The Supreme Court of Virginia has agreed to hear an intermediate appeal by six current and former state senators in a lawsuit challenging the way boundaries have been drawn in five House and six Senate districts in Virginia.

VA_State_SenateOneVirginia2021, who is bringing the suit, says the districts violate the Virginia constitution’s requirement that voting districts “be composed of contiguous and compact territory.” While seeking information about this assertion during the discovery process, OneVirginia2021 asked for communications between members of the General Assembly and the outside consultants they used when drawing district boundaries.

Several legislators objected to the request, but the circuit court ordered them to comply. House members and one senator have done so, but six remaining senators of both parties balked, saying their communications were protected by legislative privilege. They then asked the circuit court judge to hold them in contempt so they could file an appeal on this issue only.

The senators and OneVirginia2021 agree that legislative privilege covers communication between the senators and their staff and with each other. Where they differ, though, is that the senators say the privilege extends to their communications with outside consultants and third parties, too. OneVirginia2021 disagrees. The senators rejected an offer to allow OneVirginia2021 the opportunity to review the communications under seal — i.e., not public. The case is likely to be heard in the fall.

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Speak up!

speaking-Sacrament-meetingCitizens who attend public meeting to share their thoughts and opinions with their elected officials got a boost in April when Attorney General Mark Herring issued an opinion saying some policies limiting what can be said during public comment periods were unconstitutional. Specifically, the AG opinion (written at the request of Del. Rick Morris, R,) said the Franklin City School Board’s policy that prohibited citizens from speaking on specific personnel or student concern, using names or titles to identify individuals or engaging in personal attacks against employees or “other persons” violated principles of free speech.

Though the AG considers a public meeting to be a “limited public forum,” where government can impose some limits on speech, allowing discussion of individual school employees only during closed session — considering the exemption for personnel discussions is discretionary — “does not meet the constitutional standard of ‘leaving open ample channels of communication.' ”

The opinion comes at a time when the FOIA Council is poised to review two bills referred to it by the 2016 General Assembly, both of which seek to mandate some sort of public comment period in FOIA.

Read the full opinion here

Open government in the news

Gov. Terry McAuliffe, D, signed a bill designed to undo the effects of last fall’s Virginia Supreme Court ruling that essentially negated the duty to redact documents. The signing of the bill in the same form it passed the House and Senate was notable since the governor originally tried to rewrite the bill to limit its application to just one exemption.

On the other hand, the General Assembly agreed to the governor’s amendments that will make the procurement of drugs to be used in implementing lethal injection anonymous. The bill says the drug compounding process is not the practice of pharmacy — so it won’t be regulated by the Board of Pharmacy — and the names of the drug suppliers will be confidential. The day before the vote during the legislature’s so-called veto session, the attorney general’s office issued an opinion confirming the constitutionality of the proposal.

A Surry County Circuit Court judge ruled in favor of the town of Claremont, its mayor and three other town officials in a FOIA case the judge and defense attorney called “trivial.” Claremont Town Council member Donna Skinner brought the suit last year after several skirmishes over access to record. The judge said Skinner “was overwhelming the town with FOIA requests.”

Responding to a complaint made by radio talk show host Rob Schilling, Albermarle County amended its website to clearly show that emails going to the local board of supervisors, city council and school boards were also being copied to various clerks, attorneys and managers.

After weeks of wrangling, a circuit court judge ruled that the Shenandoah County Sheriff’s Office had to allow the county school board to view a videotape of an incident on a sports school bus that led to seven students pleading guilty in juvenile court to charges of assault or battery by mob. The sheriff had resisted the school board’s request saying the tape was part of an ongoing criminal investigation and to protect the identity of the juveniles.

The Center for Public Integrity has asked the Virginia Supreme Court to make public auto title lending reports that show financial details such as how much interest the businesses charge on loans and how often they repossess cars. In March, the State Corporation Commission said it was unclear whether release of the reports would be considered “personal financial information,” which is typically confidential.

Instead of recognizing a variety of state and local government officials around the country in its annual Muzzle awards for actions taken to curtail free speech, the Thomas Jefferson Center for the Protection of Free Expression singled out just one “winner”: higher education. The center recognized a host of state and private colleges and universities in five categories: censorship of students, censorship by students, efforts to limit press access on campus, threats to academic freedom and censorship of outside speakers.

A judge in Winchester County ruled in favor of a Berryville resident against the town manager over records related to a request in 2009 seeking information about draining improvements on the volunteer fire and rescue company’s property.

Portsmouth City Council member Bill Moody has sued the city over the $1,500 fine his fellow council members imposed on him for posting on his Facebook page that a closed meeting had been called to discuss a local Confederate monument.

Plaintiffs in a FOIA suit against Pittsylvania County over irregular meeting procedures by a agriculture advisory board were surprised when they arrived at the courthouse for their April 20 hearing only to learn that the hearing had been continued until July 28 without their knowledge.

When reporters at the Virginian-Pilot asked school districts in their area to provide data related to current students and courses linked to state exams, most responded promptly and thoroughly. Not Norfolk, though, which claimed it could not retrieve at least four years of academic information from an old database. Chesapeake uses the same database but was able to provide the data. Unhappy with the Pilot story, the school superintendent called a press conference the next day to refute the story, claiming it contained misquotes or misrepresentations.

After Gov. McAuliffe announced he was restoring the voting rights of more than 200,000 former felons, a Daily Press reporter asked the Virginia Commissioner of Elections for a tally of the crimes the felons had served time for. The commissioner said there wasn’t such a list because the nature of the crime was irrelevant. The elections office cited an exemption for records about individuals maintained in the voter registration system even though the exemption applies only to registered voters and the ex-felons affected by the order have not yet registered.

The York County School Board met in closed session to discuss how it would proceed in filling a vacancy left by the death of a member. “As a general rule, they’re not supposed to discuss procedure” in closed session, said the FOIA Council’s Alan Gernhardt. The board’s attorney said they only discussed setting dates for interviews of people who had asked to be considered for the spot, which wasn’t a discussion of process, but simply “common sense.”

A Richmond judge ruled the Department of Education must release “Student Growth Percentile” data for Loudoun County because it had not proved that a FOIA exemption applied. The parent who requested the data said he will make it available to the public who can use it to draw their own conclusions.

Despite a request for the lawyer representing the family of Jamycheal Mitchell, the man who died in a jail cell while awaiting transfer to a state hospital, that officials preserve video of the area outside Mitchell’s cell, the Hampton Roads Regional Jail said in response to a FOIA request from the Richmond Times-Dispatch that the video no longer existed. An assistant superintendent of the jail said the tape was recorded over because “if there’s noting on the video that’s going to show any type of criminality or negligence, we’re not going to maintain it.”

The Virginian-Pilot found that the City of Portsmouth has destroyed at least 370 curbside trans cans’ worth of documents this fiscal year, but that no one knew what the documents were about. The city could not produce the forms that the Library of Virginia requires when documents are destroyed. The Pilot was able to secure hundreds of invoices to shred the records.