Sunshine Report Newsletter, September 2014

Greetings, Friend of VCOG!

We hope you all made the most of the last official days of summer. Post-Labor Day means school is back in session, vacations are behind us and we are now settling -- however reluctantly -- into fall routines.

For VCOG, that means more training. First, with our next records-management and FOIA workshop Sept. 10 at the Virginia Capitol Building. Since VCOG initiated these workshops, more than 400 government employees have attended to learn not only the technical requirements of state records laws, but also the spirit, justification and philosophy behind them. The registration deadline is Sept. 5. For details and registration, click here.

There will be more meetings of the FOIA Council and its subcommittee on tap this month. VCOG has been participating in the review process. See a review of last month's subcommittee work below.

We are also in the process of planning two big events, both in Roanoke: VCOG's annual conference on Nov. 14 and a celebration of the late Chip Woodrum that will benefit the formation of the Chip Woodrum Legislative Internship. See reviews of both in this newsletter.

As always, we rely on the memberships and donations of our friends. Please take a moment to make your tax-deductible contribution to VCOG today. Go to and click on either "join" or "donate" along the top line.

Thank you for your support!

Megan Rhyne
VCOG Executive Director

2014 FOI heroesFOIAHero

Nominations are being accepted for VCOG’s Freedom of Information Awards, to be presented in the fall of 2014. Entries should be submitted by Sept. 30, 2014, by filling out theform on our website or by mailing the same information to VCOG, P.O. Box 2576, Williamsburg VA  23187.

Awards are presented each year to citizens, media and government for their efforts in keeping Virginia state or local government open and accountable to the public duruing the past year. Award winners will be honored at our annual conference, Nov. 14 in Roanoke.

VCOG's annual conference

Zeros_OnesJoin us Nov. 14 at the O. Winston Link Museum in Roanoke for VCOG's annual conference! We will be exploring several issues related to technology and open government, including sessions on civic hacking, as well as the potential and limitations of so-called big data. We will talk about fees charged for FOIA requests and the evolution of local government websites.

Registration details will be posted soon. And, as always, we will be seeking conference sponsors, underwriters and in-kind donations. Questions? Suggestions? Contact Megan Rhyne.


With the exception of a section of the law enforcement records provision, the rest of the exemptions are all discretionary. That means records that can be withheld do not have to be. Often times there are equally good reasons for disclosing records as there are for withholding them. FOIA's exemptions are to be construed narrowly, and the rest of FOIA is to be interpreted in favor of openness.
There are also mentions throughout FOIA that encourage parties to work things out, and VCOG consistently advises groups (citizens, media and government) to talk with each other and come up with a mutually agreeable arrangement for the identification and delivery of records.

This exercise of discretion and negotiation has been front and center in the wake of events in Ferguson, Missouri, and the increased attention on the militarized weapons obtained by local and state police. Government have been instructive. In some cases -- Chesterfield County, the City of Williamsburg and several others -- local officials have turned over both kind of weapons they possess and how many of each they have. When asked by the Richmond Times-Dispatch, Henrico County hesitated, saying the records could be withheld under the exemption for tactical plans of law enforcement. Eventually, they agreed to release information about the types of weapons they had, but did not reveal the number. On the other hand, the Virginia State Police, also citing the tactical plans exemptions, refused to reveal any information about their weapons.

FOIA's provisions aren't different from one locality or state government department to the next. But how those provisions are interpreted certainly is.

Open government in the news

Every day by 10 a.m. exhibits that were entered into evidence from the previous day’s testimony in the trial of former governor Bob McDonnell were posted online to the federal court system’s PACER records system. It sounds a bit better than it is. Access is ostensibly open to the public, but users must first register and the system is difficult to navigate and copies of these electronic records cost 10 cents per page....Speaking of PACER, the site, without warning, pulled tens of thousands of documents from several federal circuit courts in preparation for what a spokesman said was to be “an overhaul of the PACER architecture”....After intense public criticism, a committee of the University of Virginia Board of Visitors backed off on a proposal that would have prevented board members from speaking critically of board decisions after they’d been made, would have prohibited members from initiating discussions about board business with anyone, and would require the board’s chair (rector) to approve all board member media contact. Instead, board members are now encouraged to make clear when they speak publicly that their comments are personal, not the board’s position....Meanwhile, after a member of the Amherst County Board of Supervisors spoke publicly about her belief that a meeting was being closed improperly, the board adopted a policy prohibiting members from revealing closed-session communications. Speaking out of turn would subject the member “to fines or punishment” if the board had not yet taken a vote that the need for confidentiality had passed....A work group of the two-year Special Joint General Laws Subcommittees Studying the Virginia Public Procurement Act adopted a proposal that would phase out over two years the requirement that local governments advertise requests for proposals in local print publications....Attorney General Mark Herring issued an opinion in August that said the Powhatan School Board admitted an ineligible employee when it allowed the former school superintendent to participate in the Supplemental Retirement Program. Part of the problem, the AG said, was that the vote to admit the superintendent was taken on a motion made in open session that“does not identify in any meaningful way the substantive action to be taken,” which is contrary to the Freedom of Information Act....The newly created Ethics Advisory Council named long-time State Board of Elections employee Chris Piper as its inaugural executive director. The members of the council are still being named. According to the Virginia Public Access Project, Piper is credited with helping expand the state program for filing campaign finance forms electronically....Also according to VPAP, lobbyist spending dropped by 10 percent last year, even though the number of events involving lobbyists and government officials rose by 15 percent. As noted by the Washington Post, a possible explanation for these numbers is that events were less posh than previous ones. Another possibility is that lobbyists spread event costs across several clients....The Council of State Archivists bestowed its Rising Star Award on the Kaine E-mail Project at the Library of Virginia, an effort that will ultimately place all 1.3 million Kaine administration emails online in a searchable database....If you're looking for the fastest Internet service in the United States, look no further than your back yard. With an average of 13.7 megabits per second, Virginia tops the country for the speediest Internet access, according to Broadview Networks....The Hampton Roads Transportation Accountability Commission got off to a rocky start when a decision on how to organize the commission was voted on, despite the fact that such action was not listed on the published agenda....The Isle of Wight County Fair will not allow booths this year for groups or individuals with political agendas. Del. Rick Morris, R-Carrollton, has asked the Office of the Attorney General for an opinion on whether such a policy violates individuals’ rights of free speech and assembly.


Coalition News

Coming up

  • Sept. 10: Records-management and FOIA workshop (9:30 at the Virginia Capitol, House Room1)
  • Oct. 9: FOIA presentation to Town of Smithfield
  • Nov. 13: VCOG salute to Chip Woodrum (Center in the Square in Roanoke)
  • Nov. 14: VCOG's annual conference (O. Winston Link Museum in Roanoke)

VCOG on the road

VCOG's executive director, Megan Rhyne, traveled to far Southwest Virginia to visit with members and supporters and to talk about FOIA. Her first stop was at the newsroom of the Bristol Herald Courier, where she talked with reporters and editors. Next, it was around 25 employees of Bristol Public Schools. Then it was on to Roanoke for a sit-down with reporters and editors of The Roanoke Times. VCOG will travel to speak to your company, group or government entity, too, even if you're not a member (though we do encourage membership!). Call 540-353-8264 to arrange a time and place. We don't charge a fee beyond, perhaps, the occasional iced tea.

New jobs, sad departures

In August, the City of Alexandria announced that Acting Director of Communications Craig Fifer was being promoted. No longer acting, Craig (VCOG board president) is now THE director of communications. We wish him much success.

We were sad to learn this month, however, that board member Michael Stowe, managing editor of The Roanoke Times, was stepping down from his board seat. Michael was appointed to VCOG's board by the Virginia Press Association in 2011. We thank Michael for his years of service and contributions to VCOG.

We also bid farewell to our Laurence E. Richardson Legal Fellow: Eric Loose completed his internship with VCOG and returns to William & March School of Law for his second year. Eric researched issues related to the FOIA Council study of FOIA's exemptions.

FOIA Council subcommittees march on

The two subcommittees of the FOIA Council's multi-year study of FOIA's exemptions met during August with some progress to report, but also some stumbling blocks.

The meetings subcommittee met Aug. 19. Similar to the first substantive meeting, in this meeting stakeholders learned about the history of a dozen exemptions and shared thoughts and concerns about the justification, drafting and application of each one. Some were left intact without any further action to be taken on them, others were pulled out from the group to have staff or other stakeholders work up revised drafts.

The stumbling block at this gathering was a review of a draft offered on an exemption pulled at the first meeting: the personnel exemption. Local government and media groups disagreed over whether  public bodies should be able to go into closed session to discuss the work or performance of employees over whom the public body has no direct control.

The records subcommittee met Aug. 25 and followed the same pattern. The draft exemption offered for review on this day also concerned the personnel exemption, but in this case, the thrust of the main change was not in serious contention. The proposed draft would move the current provision dealing with salary information directly into the personnel exemption so that in just one place, not two as before, it will say that personnel records are generally exempt but that salary information, including the name of the government employee, must be released. For a play-by-play review of this meeting, read VCOG's tweets from that day.

Both subcommittees will continue their work on into the fall.

Woodrum Legislative Internship update
VCOG will host a celebration of the life of Chip Woodrum at a cocktail fundraising event in Roanoke on Nov. 13. Watch this space for details. Proceeds go to the founding of the Chip Woodrum Legislative Internship.  To date we have raised over $28,000, and notice of the internship opportunity has been posted at half a dozen schools and circulated by several college-related groups.

You can be part of the effort by making a contribution today.

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