Sunshine Report for November 2015


Greetings, Friend of VCOG!

GMelchers 3It’s your last week to register for VCOG’s annual conference. We’ve got an absolutely jam-packed program lined up amid the beautiful environs of the Gari Melchers Home and Studio Pavilion at Mary Washington University.

What’s on tap? 

Panels on (click here for our panelists):

  • Public officials’ use of private email accounts and text messages
  • Police data collection technology
  • Access to administrators, boards and information on campus
  • Databases of public records

UMW Professor Stephen Farnsworth will wrap up the recent elections and discuss what they mean for open government.

Cori Zarek will update us on White House open government initiatives and their potential impact on the states.

And VCOG will recognize its annual FOI award winners.

But you have to register! $30 for members, $40 for non-members, both with lunch. If you just want to see a couple of panels and not have lunch, it’s just $10

Conference donors and sponsors

VCOG is still looking for conference sponsors and contributors. Please check out our list of corporate and individual donors to the conference and consider making a personal contribution yourself, or asking your business/employer to make one.

Contact Megan Rhyne if you’re interested in underwriting the lunches we’ll serve or the mid-day coffee/tea and sweets service.


Open government award winners

VCOG will recognize three people for their efforts to open up court case information. They will be recognized at VCOG’s annual conference next week in Fredericksburg. Find out who they are and what they did on VCOG’s website.

VCOG on the road

During October, Megan Rhyne gave presentations on FOIA to the annual conference of the Virginia Community College Association and the Statewide Legal Aid Conference presented by the Virginia Poverty Law Center. Rhyne also began her second three-day FOIA course at the Christopher Wren Association at William & Mary.

VCOG notes

Congratulations to VCOG’s Megan Rhyne for being appointed secretary of the National FOI Coalition. Rhyne’s election came during the NFOIC’s national conference in Denver, Oct. 9-10.​

FOIA Council updates

The FOI Advisory Council released an opinion on records prepared for use in closed sessions, the rights of a board member to access records, and officials speaking about and sharing information discussed in closed session.

The story behind the story

In August, when we heard that the investigation into the confrontation between ABC officers and UVA student Martese Johnson was complete, VCOG was quick to point out that the ABC was choosing not to release the report in response to a FOIA request, not that it was prohibited from doing so.

Several reporters, most notably Patrick Wilson from the Virginian-Pilot and Travis Fain from the Daily Press, pressed the ABC and the McAuliffe administration for further explanation and received an even more entrenched position and a list of reasons why FOIA prohibited the report’s release.

Curious about this stance, and the ABC’s shift from its initial position that it was using its discretion to withhold a report that could be released, Wilson filed FOIA requests for records on discussions about the report’s release.

What he found was pressure from the governor’s office, particularly from the governor’s deputy communications director Christina Nuckols, a former Pilot reporter, on the ABC’s communications director, to change the agency’s stance from choosing to release the report to being prohibited by law from doing so.

The change may seem esoteric or — since last night was the last game of the World Series — so much inside baseball, but the administration’s statements matter. When the law on discretion is misstated at the highest levels of government, there is little incentive at state agencies, local governments or school boards not to follow suit.

Further, a misstatement that the law prohibits something gives cover to what is actually a choice. There is some sympathy when one’s hands are tied — hey, the law’s the law, sorry! — but not as much when someone could release a record and chooses not to.


Open government in the news

A Richmond attorney filed a FOIA suit against the Albemarle County Commonwealth Attorney, alleging she charged an exorbitant fee ($3,200) for records he requested and the length of time she told him it would take to review and release the requested records. . . . Supervisors in Botetourt County admitted they used (legal) two-by-two meetings to discuss the impending resignation of the county administrator. The public was informed at a public meeting, where the supervisors went into two separate closed meetings, one to accept the resignation and one to agree to hire the administrator’s replacement. . . . Republican candidates for the James City County Board of Supervisors said they would not be speaking to reporters at the Virginia Gazette during the campaign. Instead, the candidates said they would communicate only in emails and texts. . . . Bristol Herald Courier reporter David McGee was recognized as a member of the Virginia School Boards Association 2015 Media Honor Roll program. . . . Elected officials and residents in Halifax County sparred over whether the county administrator was allowed to publicly discuss the contents of a meeting that was closed under the discretionary personnel exemption. A county resident alleged the administrator “leaked” information about the position formerly held by the resident’s son. The administrator reminded the board that closed session matters can be discussed publicly, especially when sharing personnel information with the subject of the closed-door discussion. . . . A federal judge has ordered the city of Petersburg and its mayor to hold settlement talks with a man who claims his First Amendment rights were violated at a City Council meeting in January. Linwood Christian claims he was not allowed to speak during the public comment period because of an unpaid fee related to his campaign for a school board seat in 2014. . . . Candidates for the Loudoun County Board of Supervisors traded barbs over meeting attendance. The challenger said the incumbent has missed more than 12 percent of county board meetings over four years. Returning the volley, the incumbent said the challenger has missed four out of 19 meetings of the Town of Hamilton, on which the challenger sits. . . . Hampton police launched an open data portal designed to give access to various crime statistics, including officer-involved shooting information and incident and offense reports. . . . The Virginian-Pilot announced it is suing the Department of Criminal Justice Servces to get access to a database that tracks training for Virginia’s law enforcement officers. . . . A judge in Pittsylvania County found the county Agricultural Development Board violated FOIA by not giving proper notice of going into and coming out of closed session last spring. The judge, however, said he would not issue a writ of mandamus against the board if it followed FOIA’s rules for six months. The judge said he was concerned that the case was “more about politics than it is about legality” and fretted that FOIA was being used as a “club” by citizens unhappy with the board’s performance. . . . A Roanoke City Council member was arrested in a parking lot and charged with marijuana possession just 30 minutes after he excused himself early from a city council retreat. Court Rosen left the meeting saying he had to go to work. . . . An anti-pipeline group and Franklin County are working together on a FOIA request, and possibly moving in the direction of a deal that satisfies both sides by cutting down on the cost. The Blue Ridge Environmental Defense League was dissatisfied with the $5,000 the county said it would cost to prepare records related to the Mountain Valley Pipeline. . . . The Essex County Board of Supervisors announced it was reviewing its policy for charging for records under FOIA. The board considered a $19 per hour charge, to be billed in 15 minute increments, for requests that take more than 15 minutes to fill. The also considered making the first five copies free and then charging two cents per page after that. FOIA says that charges, which are discretionary, must reflect the actual cost of providing the record, and the Virginia Supreme Court has affirmed that the charge can include the labor cost for reviewing the records.


Signed, sealed, but not delivered

Three stories converged in October to focus the spotlight on sealed settlement agreements. 

The Hampton school system filed a lawsuit brought by the family of a special needs to student who claimed she was sexually assaulted. The student’s family sued the school division for $7.5 million, but the parties settled in late September. Hampton Circuit Court Judge Bonnie L. Jones sealed the settlement, and the school system refused to reveal how much the district will pay to the girl and her family. School board members refused to answer questions about the amount paid even though Alan Gernhardt with the FOIA Council and Megan Rhyne of VCOG said the amount paid is an open record.

Meanwhile, a Richmond Circuit Court judge sealed a settlement agreement with the Chesterfield schooldivision. There, a local woman sued five current and former school officials for defamation for statements she said falsely blamed her for her daughter’s death from an allergic reaction to a peanut given to the child by a classmate. Again, school officials were mum on both the terms and the amount paid.

Though not (usually) public entities, the Virginia Supreme Court has ruled that wrongful death settlements with hospitals should not be sealed. Hospitals in Roanoke were not sealing settlements, but in 19 instances over the past 10 years, they were going to courthouses out of the area to settle suits that originated in Roanoke Circuit Court. Out-of-town settlements are less likely to catch the attention of the public or media. U.S. District Judge Michael Urbanski was asked to drop a case that the parties had arranged to be approved in Patrick County. According to a court transcript the judge said he was “appalled” at the move:  “Without letting me know and while my case is pending, you all went running off in Patrick County and got this settlement approved down there without me knowing about it while a case is pending here in federal court and you’ve done it under seal to hide these issues from the public."

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Virginia Coalition for Open Government
P.O. Box 2576
Williamsburg, Virginia 23187

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