Sunshine Report for May 2020

Sunshine Report for May 2020

Virginia Coalition for Open Government
The Sunshine Report
May 2020 
Coronavirus collides with FOIA
As the shutdowns related to the Coronavirus shifted our daily routines, so too did it shift the landscape of governing. Government transparency under the Freedom of Information Act was no exception. Early on, the focus was on how public bodies could meet. The next phase was the adoption of local continuity-of-government ordinances to set out temporary guidelines for meeting virtually. From there, two parallel tracks evolved. On one track was how to handle the public hearings necessary to the adoption of the budget, which itself was on a timetable mandated by state code. On the other track was exactly what other type of business could or should be considered during the crisis.

Both tracks had in common the way in which the public could weigh in. Local governments got very creative in adopting public comment periods, from allowing in-person comments (regulated by where and when citizens could enter the chamber to deliver the remarks), to allowing comments to be called in, emailed in, made within the conferencing software itself, read into the minutes, and so forth. Larger localities, like Norfolk and Fairfax, Hanover, Chesterfield and Albemarle Counties, and surely others, decided to move forward on regular business, including sensitive land-use decisions. That created a backlash in those localities by citizens unhappy about not being able to look their elected officials in the eye. Some soldiered on: Hanover postponed, but only temporarily, a decision about a Wegman's distribution center, and Norfolk approved an expansion request from Costco. Others, however, pulled back until a time that citizens could be present: Henrico schools put off a redistricting decision, and Carroll County delayed a land-use decision.

Technical glitches have been reported, but most (with the exception of the Metro board, see below) seemed to be problems with an individual's connection, not the meeting's overall presentation. Petersburg suffered a hack, when two men made vulgar statements and displayed lewd videos before their video and audio could be cut off. To combat "Zoombombing," some public bodies are requiring people who want to join a virtual meeting to register to receive the link and code for it.

With a few exceptions here and there, FOIA processing has reportedly been business as usual since the shutdown. Notably, Fairfax County initially said FOIA requests were being put on hold because the schools were shut down. And some counties, like King George and Loudoun, adopted ordinances that said  deadlines requiring action by any public entity, its officers, or employees would be suspended. Certainly allowances have to be made for records that are located in buildings no longer accessible to government buildings, but records accessible from home should be processed under normal deadlines.

Most of the reporting about difficulties faced getting records, though, has been at the state level. The governor's office took two weeks to produce a contract for personal protective equipment, for instance. Most frustrating, however, has been the refusal to provide more specific data on nursing home and care facilities where COVID-19 outbreaks have occurred. While avoiding citing HIPAA (federal guidelines have been relaxed to allow more sharing by covered entities), the Virginia Department of Health has stood firmly in line with state code that protects the identity of a "person" who has or has reported an infectious disease. The code goes on to define "person" as including a company or corporation. Unless the General Assembly changes the law, says VDH, the information can't be disclosed, even though knowing where outbreaks are concentrated would help families, communities and even a state response that is considering allowing businesses in different regions of the state open up. Virginia's journalists continue to ask and track down other sources of this information, but if they are to be the eyes and ears of the public during this crisis, they shouldn't have to.
General Assembly approves emergency e-meeting rules for some, but not for itself
On April 14, VCOG submitted a letter to the leadership positions in the House and Senate, as well as to all other legislators, urging the bodies to broadcast or stream the so-called reconvene session, regardless of where the proceedings were held. (The Senate met at the Science Museum of Virginia, while the House met outside, beside the Capitol.) The letter was also signed by:

• American Association of University Women of VA
• Becky Bowers-Lanier, B2L Consulting
• League of Women Voters of Virginia
• Stephen J. Rossie, Public & Government Relations Consultant
• Transparency Virginia
• Virginia Center for Public Safety
• Virginia Press Association
• Virginia Poverty Law Center

Proceedings were broadcast and vote tallies on each bill were displayed when the bodies convened on April 22.

Early in the House proceedings, the Speaker's proposal (which was not posted online) to amend the rules to allow the session to continue remotely, with voters casting votes from home, was defeated. Though the majority-Democrats voted in favor of it, no Republicans did. The final vote was 50-44, but the proposal required 66 votes to pass.

As the day progressed, amid the honking horns, fainting leaders, plexiglass boxes and face mask fashion, it was easy to miss the governor's amendments to the budget bills that were approved April 22, unanimously by the House and with minimal dissent in the Senate, that allow public bodies to meet electronically during the time of a declared emergency "when it is impracticable or unsafe to assemble a quorum in a single location."

 . . . . continue reading about the amendments on VCOG's website.
Court wins for access
A circuit court judge in Norfolk ruled April 15 that the Virginia Department of Corrections willfully and knowingly withheld records by not giving one of the five required responses to a request for strip search records made by a reporter for The Virginian-Pilot. Judge Junius Fulton III found VDOC acted in “bad faith,” violating both the spirit and letter of the state’s public records laws, when it insisted the reporter's request was not "reasonably specific," as required by FOIA. The judge noted the back and forth discussion between VDOC and the reporter over the records at issue and said that the VDOC's argument that the request was still too vague was "disingenuous."

Read the full opinion in Harki v. Department of Corrections on VCOG's website.

A Fairfax County judge ruled April 21 that settlements under the infant settlement statute (§8.01-424(A)) cannot be sealed. The judge relied on a 2008 case, Perreault v. The Free Lance-Star, under which the Virginia Supreme Court ruled that wrongful death settlements cannot be kept from the public, and the similarity between the wrongful death statute and the infant settlement statute. The court left open the door for sealing settlements when there is "credible, particularized evidence of the child's medical condition necessary to justify a complete sealing of the settlement terms."
Open government in the news
The Virginia Hospital & Healthcare Association began running its own online dashboard of statistics related to COVID-19. The data does not match up directly to the data being reported by the Virginia Department of Health, owing to differences in the way people and cases are counted, but the site includes data on metrics not tracked by VDH, like ventilator usage, current hospital bed availability, the number of hospitals having difficulties managing personal protective equipment and other medical supply inventory.

Strasburg came close to not adopting an emergency continuity of government ordinance. Some on the 8-member town council objected to the idea that there was a disaster at all. Eventually, five members voted in favor, while two voted no. The eighth member -- who was participating remotely -- did not vote because her audio feed was not working.

Emails obtained through FOIA revealed internal deliberations in Arlington County over whether Amazon CEO, Jeff Bezos, would be allowed to land his helicopter at the eventual HQ2. Flight restrictions in the D.C. area made the possibility "useless today and well into the future."

Emails obtained from the City of Charlottesville under FOIA showed that in the early days of the pandemic, at least two city council members felt they weren't getting effective communication from the city manager. At one point, the manager said he was concerned with council's questioning of his decisions and "bullying" him into actions.

The chief justice of the Supreme Court of Virginia issued a guidance memo April 10 that says judges may, in their discretion, conduct any civil or criminal matter by electronic audio-visual communication with the consent of the participants. The guidance did not include mention of how members of the public were to have access to proceedings they would have been able to observe if held in person.

Echoing the California governor's refusal to release a $1 billion contract for personal protective equipment (PPE) until the supplies had been delivered, Virginia Governor Ralph Northam took two weeks to disclose the $27 million contract his administration negotiated for PPE. The administration said it was not practically possible to release the contract within five working days and asked for an additional seven working days, as is allowed under FOIA. Meanwhile, as of April 16, the online publication The Markup had not received a response to its March 16 FOIA request asking the Virginia Health Department about its COVID-19 testing protocols.

The Virginia Beach Sheriff's Office created a database where it will post daily numbers on coronavirus testing and positive cases within the city jails. Fairfax County also launched a COVID-19 database in late April.

Watching legislative sessions online and in-person, a Roanoke Times reporter noted when House and Senate members left their seats prior to specific votes. Though it's not always known why a legislator misses a vote, some patterns were apparent.

A judge in Warren County dismissed without prejudice the multiple charges a grand jury handed up during the investigation into the Front Royal-Warren County Economic Development Authority. The special prosecutor said he was "not pleased about this," and it was "not the end," even though charges against current and former county officials and a local businessman have been dismissed as well. The special prosecutor said a report of the grand jury’s process will eventually be made public, but he was not sure when that would be.

Whoever it was who thought he could convey his opinions to the Isle of Wight County School Board by dropping off an envelope with them written out inside was subject to a rude awakening when the school superintendent told the board at a meeting an hour later that he had instructed his staff not to touch the package for 24 hours.

The April 23 electronic meeting of the Metro board ran into technical issues. The livestream of the meeting began after it had already started, then six minutes in, the feed cut out. The meeting continued without streaming, and Metro didn't post about the problem for nearly 90 minutes. A video of the meeting was eventually posted three hours after it ended.

The Virginia Beach Police Department announced that while some information from its upcoming investigative report into the May 31, 2019, municipal building shootings will be released, the entire investigative file would not.

The Clarke County Board of Supervisors chose not to release the names of any of the applicants it was planning to interview to fill the seat of a member who stepped down.
Help VCOG help you stay vigilant and engaged. Join or donate today!
Public-body response to COVID-19
VCOG has been compiling a list of the measures public bodies have been taking to hold public hearings and public meetings during the declaration of emergency due to the Coronavirus. You can add to the list by sending information to Megan Rhyne.

Save the (new) date

VCOG has rescheduled its 2020 conference for Sept. 10, 2020, in Harrisonburg. FINGERS CROSSED!

Seeking nominations

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.

Office supply list on Smile.Amazon

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...)
Click here to select VCOG as your AmazonSmile charity.
VCOG is a 501(c)(3) nonprofit. TIN 54-1810687
Get Social with us

540-353-8264 •