Sunshine Report Newsletter, May 2015

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

Greetings, Friend of VCOG!

Dear Friends - 

Open government doesn't always win friends. It isn't always pretty. We were reminded of that in April at the small local level and at the big statewide level.

In tiny Waverly, Va., the mayor is stuggling to fill a multitude of FOIA requests with a minimal staff and while trying to do the rest of her job. If she trips up, a judge could require her to pay fines he imposed in a FOIA case in March.

On the statewide level, some lawmakers objected to the contents of a report about practices at the General Assembly that make it difficult for citizens to participate and/or observe, calling it a "political hit piece" and wondering why many of the group's liberal members weren't taking on Gov. Terry McAuliffe's FOIA record or Hillary Clinton's foundation donors.

Sometimes when it comes to openness and transparency in government, some people press too hard and some people get defensive. It's hard. No doubt. But we all have a stake in this; ou neighbors, friends and family are the beneficiaries.

Public service? It's for the people. Transparency in government? It's for the people. It's all for the people, and folks on both sides of the counter (myself included) do best when we remember that.

Megan Rhyne
VCOG Executive Director

VCOG on the road

VCOG traveled to the Town of Waverly to provide FOIA training for the mayor and clerk, who were found to have violated FOIA and ordered by a judge to pay penalties if they did not follow FOIA's provisions over the next two years. Megan Rhyne was joined by Sussex County Attorney Mike Kaestner. Since the meeting, citizens have been filing multiple requests, not only asking for records but demanding apologies and taunting the pair. The clerk quit her job in late April citing stress. Rhyne has fielded numerous calls from the mayor seeking follow up guidance.

In early May, VCOG will speak at the Public School Records Consortium conference in Staunton.


FOIA in the courts

The Supreme Court of Virginia ruled Loudoun County was within its rights under FOIA to withhold the letter left behind by a man after he killed himself.

The man’s death was initially investigated for criminal activity and so the Loudoun sheriff’s office withheld the letter upon request, citing the exemption for criminal investigation records, even though it was later confirmed to be suicide. The court rejected the plaintiff’s contention that the note was non-criminal incident information that had to be released.

Read the full opinion on the Supreme Court's website.


A Loudoun County parent lost his FOIA lawsuit against the school system and got sanctioned $500 in the process.

Brian Davison made dozens of FOIA requests related to student test scores called Student Growth Percentile data. The county did not release the records as required by FOIA, Davison said.

At trial, division employees testified about how much time they had spent replying to Davison’s request, asserting that they’d fulfilled their obligations. Judge Jeanette Irby questioned Davison and found out he had not paid for any of the records requests. “That’s all I need to know,” the judge said.

Davison sparred with Irby and the school’s attorney Julia B. Judkins, prompting Irby at one point to say to Davison, “You’re so rude sometimes.”

On April 29, Irby ruled against Davison, agreeing that the district had met its obligations. She also said some of Davison’s requests did not qualify as FOIA requests because of the way they were formatted.

Finally, Irby told Davison to pay $500 into the state’s literacy fund in order to “inject some courtesy” into Davison’s future FOIA requests and proceedings.


VCOG submitted an amicus curiae brief with the Supreme Court of Virginia in a case seeking access to records related to the administration of the death penalty, particularly by the electric chair. VCOG has never taken a position on the death penalty, and still does not, but filed a brief on a specific FOIA argument brought by the Department of Corrections (DOC).

The case was brought by Del. Scott Surovell. He sent a FOIA request to the DOC asking for “records pertaining to the execution chamber, execution methodology, and completed executions,” according to a brief filed by the DOC. The DOC produced 176 records responsive to the request but withheld an unspecified number of others, citing various exemptions. A day-long hearing before a Fairfax County judge resulted in the court ruling that some of the records were properly withheld under the exemption for security, some should be released, and some (particularly the death penalty policy manuals) should be redacted and then released.

On appeal, DOC is making two primary arguments: (1) the trial court should have deferred to the DOC’s expert who said all of the records should be withheld because of security; and (2) the trial court should not have required the DOC to redact documents, saying that because they contained exempt material, they could be withheld in their entirety.

It is on this latter point that VCOG based its brief. Through pro bono counsel, VCOG argued that the DOC’s interpretation would effectively gut the specific provisions of FOIA that contemplate redaction. The brief cited recent examples where citizens and journalists were denied access to entire records because of the inclusion of some exempt material, even though the material could have been easily redacted.

Noting a circuit court case from Norfolk that says there's no such duty to redact, the brief argues that Virginia would be at odds with numerous other states and the federal FOIA if the Supreme Court follows that case.


Oral arguments are expected in early June and a decision will follow a few weeks or months after that. VCOG does not yet have an electronic version of the opinion to post on its website.

Transparency Virginia report

Transparency Virginia released a report in mid-April detailing how some practices at the General Assembly make it difficult for citizens to monitor and participate in the legislative process.

(VCOG director Megan Rhyne served as the report’s principal author.)

News media around Virginia mainly focused on the report’s break-down of how many bills were killed by unrecorded voice votes or without any vote at all. Using publicly available data found on the legislative information system, the report found that 76% of the bills killed in House committees and subcommittees were defeated without a recorded vote or any vote at all. In comparison, 7% of the bills killed in the Senate were defeated in this manner.

In a statement released with the report, Rhyne said the problems the groups 29 members identified are not Republican or Democratic ones.

“Though Republicans hold majorities in both the House and Senate, it would be as much of a mistake to say, ‘This is a Republican problem,’ as it would be to say, ‘This is an attack on Republicans,’" the statement said. "The sad truth is that these are systemic problems. Problems that have developed over time, over parties and over party leaders.”

The report encouraged a conversation about how the public can be kept better informed, starting with having all bills considered and voted on, and giving adequate notice of meetings.

Read the report here.


FOIA Council sunlight
throws shade on OES

The Office of Executive Secretary of the Supreme Court should release its database of circuit by circuit case-disposition information, according to an opinion released by the FOIA Council April 23.

A reporter for the Daily Press sought the data, which he had been able to obtain in years’ past, but the OES denied his request in the summer of 2014. The OES said that because the case information was available on the court’s website, where the public can search for cases one by one, then it did not need to turn over the database. 

The OES further justified withholding the records under a provision of FOIA that says records the clerks of court are required by law to keep are accessible through a separate statutory scheme just for court records, not through FOIA.

The FOIA Council pointed out that the OES is not a clerk of court and that the case disposition database is not a record the clerks or the OES is required to keep.

The council saved its choicest words for the assertion that the individual case look-up system was sufficient even if someone could effectively create their own database by looking up each record.

“While it would be possible to recreate the database this way, doing so would be unnecessarily time consuming when a complete database already exists.  Denying access to the complete database while at the same time allowing access to individual case entries does not appear to serve any public purpose, but instead acts as an artificial impediment to access to public records, which stands in contradiction to the stated purposes of FOIA.”

Open government in the news

Dr. Edward D. Miller announced he will resign from his seat on the University of Virginia Board of Visitors citing, in part, the board’s decision to vote on a tuition increase with little to no public notice.  Meanwhile, students attended the veto session of the Virginia Assembly to lobby for a public comment period for students at BOV meetings.

Emails obtained by the Washington Post showed objections to the make-up of the newly formed commission to study police policies in Fairfax County. The county executive questioned whether a local police accountability activist should be included because “he will use the group to push for [a] police review board.” The prospect of such a review board prompted strong reaction from police officers: “I think I am going to be sick,” wrote one.  “Just because I’m an employee of the government doesn’t mean I signed away my rights,” wrote another.

Thanks to a bill brought by Sen. Ryan McDougle, R-Hanover, at the request of a Henrico County Tea Party member, school divisions will now be required to provide budget information to the public in line-item format. Some school divisions only reported broad categories of revenue and expenses in their budgets.

The University of Illinois at Urbana-Champaign was awarded a “Muzzle” from the Thomas Jefferson Center for the Protection of Free Expression for withdrawing its offer of employment to a Virginia Tech professor who made comments on Twitter critical of Israel.

The private company that administers medical services at the Virginia Beach Jail finally agreed to reveal that it paid $600,000 to settle the wrongful death case brought by the family of a woman who choked to death on her jail ID bracelet. The company initially fought the Virginian-Pilot to keep the amount confidential but eventually withdrew its opposition and released the amount.

The Daily Press questioned a decision by the Hampton School Board to close a public meeting to discuss contract terms for the unfilled school superintendent’s job. The board said it was considering terms relevant to individuals, but the paper pointed out that no candidates had yet been interviewed.

A longtime courthouse bailiff in Floyd County was fired from his job purportedly because he wrote a letter to a local newspaper supporting a candidate challenging his boss, the county sheriff.

A federal appeals court confirmed that a lower court properly dismissed the case of a former Marine who was involuntarily held for psychiatric evaluation after he posted anti-government messages on his Facebook page.

Winchester City Council considered a resolution that would discourage one-on-one meetings with applicants with business pending before the board.

A jury took just 20 minutes to decide that Culpeper County Commonwealth Attorney Megan Frederick did not defame a member of the county board of supervisors when she sent an email saying the failure of certain board members to stop the county from spending $1.5 million on a new sheriff’s office was “due to incompetent and corrupt members of the Board.”

After sitting through many meetings taking verbal abuse from a local citizen, Norfolk City Councilman Paul Riddick finally snapped and said he dared the citizen to “get within five feet of me.” Riddick also confirmed that what he said was a threat. A week later, the city voted to amend its policies to prohibit personal attacks during the public comment period.

The Virginia Supreme Court ruled that the online review site Yelp did not have to have to respond to a subpoena seeking information on anonymous commenters. The case was brought by a carpet cleaning company unhappy with seven negative reviews about its business. Read the full opinion here.


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