Sunshine Report Newslette, March 2015





The Sunshine Report: Online Transparency news from the Virginia Coalition
for Open Government   March 2015

Greetings, Friend of VCOG!

Dear Friends - 

The annual circus that is the General Assembly came to a close on the 27th, a day earlier than originally scheduled. The legislature passed a package to shore up the ethics laws and actually fairly agreed on a budget. The pace was frenetic, and VCOG was mostly pleased by the final results. You can read our recap below.

You'll also note, however, that while bills affecting transparency mostly met the right fate, the practices of some of the committees and subcommittees weren't always the most sunshine-friendly. Transparency Virginia tracked those activities and prepared a mid-term report.

And though February may have brought tons of snow and closed government offices for days at a time, that didn't stop four courts and several local governments from heating things up. Check out our FOIA in the Courts and our Open Government in the News sections below to learn more.

As always, VCOG is thankful for your support. YOU make sunshine in Virginia possible.

Megan Rhyne
VCOG Executive Director

The 2015 General Assembly: It's a wrap

When the General Assembly adjourned Feb. 27, it was with a fairly good record on government transparency behind it. Several good bills passed, several bad bills failed, and some that needed fuller vetting will be sent to the FOIA Council’s ongoing study. There were a few disappointments along the way, but whether it was because this year is an election year or because the former governor’s criminal conviction tempered legislators’ thoughts of keeping information from the public, the session will go down as being mostly sunny.

The bill causing the most concern was introduced on the second-to-last day of filing (more than a week after the session began) and was not finally disposed of until just two days before adjournment sine die. The bill was the so-called lethal injection drug-secrecy bill. Carried for the governor by Sen. Dick Saslaw (D), the bill was an attempt to ensure that Virginia could get the drugs necessary to carry out the death penalty by lethal injection, though no executions are currently scheduled. Pharmacies providing the drugs have experienced backlash domestically and internationally, and so Saslaw’s bill would have given these companies anonymity if they provided the drugs to Virginia. The bill also would have shielded the exact drugs provided.

Despite testimony from scholars that the bill was likely unconstitutional, the bill passed the Senate and was advanced through the House Courts of Justice Committee. VCOG testified that the bill allowed for secret procurement, noting that no other companies contracting with the government can keep their identity secret, and also noting that the citizens and the state have no way to track whether the drugs provided are effective or the best value for the Commonwealth. A vigorous debate on the House floor, led by Dels. Jim LeMunyon (R) and Scott Surovell (D), preceded a surprising vote to defeat the bill, 42-56. That wasn’t the end, however. Three delegates (Matt Fariss (R), Jim Morefield (R) and Monty Mason (D)) confirmed they were approached by the Department of Corrections the next day to see if they would change their votes if the measure was brought up for a revote. The DOC effort failed, and the bill remained defeated.

To keep reading our legislative update, go to our website.


Transparency Virginia's
midterm report

Transparency Virginia (TV) released a report at the midway point of the General Assembly detailing some of the concerning practices in committee meeting and subcommittee meetings observed by coalition members.

TV noted that there are more than 100 committees and subcommittees, making it impossible for all meetings to be observed, but the group’s members, who span the ideological spectrum and have different interests and issues, was able to confirm that members observed at least 72% of the committees, and many of those committees’ subcommittees.

The group’s members took note of three areas: meeting notices, recorded votes and consideration of all docketing bills.

Among the group’s findings: Several House committee meetings were held at the chairman’s desk on the floor of the House of Delegates; numerous instances were observed when sub/committee chairs did not permit public testimony on bills; bills were “left in committee” without ever being heard; and many bills were killed on unrecorded voice votes.

TV will produce an end-of-session report by April.

Read the mid-term report here.

Note: VCOG is a member of Transparency Virginia and Megan Rhyne has maintained the group’s unofficial website.

Out of the mouths of interns

Speaking of unrecorded votes, VCOG’s legislative intern, Zhina Kamali, penned this piece published by the Roanoke Times where she was surprised to observe committee members loudly shouting their “yeas” and “nays,” but without attribution. Her piece prompted a reader in Roanoke to gently chastise her about respecting the rules for committees. In response, Megan Rhyne posted an explanation about why unrecorded voice votes are bad for the public and why the rule should be changed.

Even governments
don't have access!

When Waldo Jaquith posted records on all 1.7 million Virginia corporations in September, little did he know that local governments would be the ones clamoring for the information. Jaquith obtained the records from the State Corporation Commission for $150 per month for three months and put them on a website, He then heard from the City of Charlottesville asking if he could provide a list of all businesses registered in the city. It seems the city didn’t have updated information from the SCC and so did not know whether all businesses registered with the SCC had paid the local business license fee. Jaquith estimates that the amount of lost revenue statewide could be at least $200 million. Jaquith says he hopes the SCC will begin providing corporate data without charge, noting that Sam Nixon — who has 30 years of experience in information technology -- is slated to take over as the agency’s chief administrative office in March.

FOIA in the courts

A Hopewell citizen lost her bid to hold the city council accountable for the way in which it selected its chair and vice chair. Janice Denton said the city misused the personnel exemption to go into closed session to discuss who would hold each position. Though favorably citing a FOIA Council opinion that says the personnel exemption cannot be used for discussions about each other, General District Judge H. Lee Townsend II said he felt the exemption had been properly invoked. The judge noted, however, “When I take off this robe, I’m a citizen and I believe in open government in the sunshine and not in a closet.” Denton is considering refiling her complaint in circuit court.

Former Richmond school board member Carol A. O. Wolf sued the City of Richmond when it refused to release a record of the confidentiality agreement City Council members had to sign in order to get briefed on why the city’s chief administrative officer abruptly resigned in September. Richmond Circuit Court Judge Joi Jeter Taylor ruled against Wolf, saying that Wolf’s request had actually been for the names of those council members who signed the agreement, and that record did not exist. Nonetheless, Taylor also made it clear that if Wolf had asked for the confidentiality agreement it would have to be disclosed, despite the city’s claim that it was protected as a personnel record and as attorney-client privilege. The city got the judge’s message and released the agreement two days later. In part, the agreement prohibited council members from even acknowledging that the agreement existed.

As reported in last month’s Transparency News, a Loudoun parent won a FOIA suit in January that would have required the Virginia Department of Education to release English and math improvement scores for county students. In February, however, the local school board, as well as the Loudoun County Education Association and the Virginia Education Association signed a petition to block the release, saying it would violate the privacy rights of teachers.

On Feb. 23, the Supreme Court of Virginia heard arguments on whether police could be forced to produce a suicide note that was part of a death investigation. The 2007 death of a high ranking U.S. Air Force official came amid controversy over procurement and hiring practices by government agencies. The New York Times reported a note written by Charles Riechers contained an apology for his role in furthering a “scandal.” A Loudoun County lawyer sought a copy of the note under the Virginia Freedom of Information Act. The justices questioned attorney Ben Fitzgerald on whether the materials he sought were part of a “compilation” that might qualify for disclosure under §15.2-1722 governing law enforcement records. It was not clear why Fitzgerald sought the Riechers suicide letter.
(Many thanks to Peter Vieth of Virginia Lawyers Weekly for the recap of the Riechers case.)

Stay up to date on access
Sign up for VCOG's daily listserv on access and First Amendment news from Virginia and accross the country. It's free!



DON'T FORGET! Sunshine Week is March 15-21

Mug shots are/aren't subject to disclosure
The Attorney General issued an opinion Feb. 5 to Chesapeake Sheriff Jim O’Sullivan concluding that mug shots maintained by local law enforcement agencies have to be released under FOIA. However, the AG also found that photos that have been uploaded to the Central Criminal Records Exchange are considered criminal history records and cannot be released. The AG recognized a conflict between two statutes (FOIA and Chapter 23 of Title 19.2) and determined the FOIA had to take a backseat to the more recently enacted law involving the CCRE.
Read the opinion on VCOG’s website.

Open government in the news

The Suffolk City Council toyed with the idea of writing into the city’s ordinance a provision prohibiting council members from speaking about what had taken place in a closed session. At a later meeting, the council discussed a revelation that some city employees have been instructed to route all council members’ information requests to the city manager’s office....The Richmond Redevelopment & Housing Authority refused to give records to a reporter for WWBT regarding the amount being paid in severance to its departing CEO. The authority confirmed that Adrienne Goolsby was leaving voluntarily and that no personnel matters were at issue, mean there was no FOIA exemption that would have applied....Fall-out from the shooting death by police of an unarmed Fairfax man continued when a local judge ordered county police to turn over their internal affairs reports on the matter. The board of supervisors began crafting a policy for how information would be released in future police shootings, and soon after, the Washington Post received emails confirming that the county attorney’s office had been withholding information from the council....A debate over whether to get rid of Charlottesville’s annual observance of a holiday Lee-Jackson Day plunged the Charlottesville City Council Chambers into chaos, with audience members booing speakers and one woman being removed from council chambers....Likewise, a Halifax County Board of Supervisors meeting spun out of control when a deputy escorted a former employee of the commissioner of revenue from the meeting room after she made personal accusations against the county administrator and the finance director. The board has not been able to vote on a chair or vice chair because members, so no one was able to call the meeting back to order. Later, the finance director filed for a protective order against the county planner. And still later, an attempt to add a ninth member to the board died up on the floor of the Virginia Senate when four board members wrote to Sen. Donald McEachin saying the state shouldn’t be deciding local matters....There was discord on the Portsmouth City Council, too, when a local pastor filed a complaint against a council member. The 6’3”, pastor said that in December, in response to a Facebook post criticizing Sen. Louise Lucas, (D) the 5’8” Moody allegedly gave the pastor five minutes to remove the post, and if not, “I’m going to kick your ass.”...The City of Petersburg has attempted to place a muzzle on a former candidate for school board by not permitting him to speak during City Council’s public information period because he failed to pay fines incurred during the previous election....A review by a reporter revealed that the cost of obtaining the same information from the different public universities can vary widely. Kathryn Watson asked for two years’ worth of travel expense records for the presidents of all 15 public universities. UVA College at Wise, Redford and George Mason said the records would be available for free; Virginia Tech wanted $52 and VMI wanted $60. And UVA? They said it would cost $510 and would include seven hours of staff time at $45/hour....According to sources who spoke to the Richmond Times-Dispatch, a Richmond School Board member said she would withdraw a disciplinary complaint against a fellow board member if that member would support continuation of a $4.15 board reimbursement policy....Albemarle and Hanover became the most recent counties to adopt a policy to have their meetings live streamed over the Internet. After initial opposition on each board, they both will begin using streaming software provided by Granicus, which can also archive meetings and index the recordings to specific agenda items....Meanwhile, a review of stats provided by the National Council of State Legislators, Virginia is one of only 11 states that does not offer the public archived video or audio of legislative floor proceedings. The House and Senate feeds are not indexed to particular bill numbers, either, despite the fact that they both use the Gransicus software, too. Meanwhile, the videos are indexed and archived on the website....The city of Martinsville is considering buying an electronic system that would track the movements of city-owned vehicles and show whether they are being driven safely and efficiently. Data from automatic vehicle location equipment installed in vehicles would reveal, for instance, whether a car or truck is being driven outside the city without permission or if a driver is speeding or letting a vehicle idle too long, according to a request for proposals that the city issued to vendors....Insisting that he didn’t mean “not to be transparent,” Sen. Tommy Norment refused to disclose how much income he receives as a court-appointed commissioner of account. Norment said he’d been advised by the FOIA Council that the information did not have to be disclosed. The fees do not come from public funds, said Norment, who also proposed an increase in the fee collected to settle timeshare foreclosures.