Sunshine Report: November 2016



VCOG conference to return
to James Madison's Montpelier

ACCESS 2016 will be held Dec. 8, 2016, from 10 a.m. to 4 p.m. at James Madison's Montpelier in Orange. This is the site of VCOG's very first conference in 1999.

Here is the tentative line-up of panels:

  • Legislative privilege -- the Virginia Supreme Court recently ruled in a case that legislative privlege shields communication with third parties in certain circumstances. Find out more about the case and contrast it with FOIA's working papers exemption.
  • Proactive disclosure -- Is government information moving from an ask-and-receive model to an on-demand one? How does government decide which data sets it will make available? Can government be simultaneously transparent and opaque?
  • Government and social media -- Is social media a great way to engage citizens, a quagmire for records management purposes, or a potential legal minefield of deleted comments or blocked "friends," a combination of all three. Or something else entirely?
  • The business of confidentiality -- Whether it's the chemicals used in fracking, who farms hemp or what type of development a utility is proposing, businesses often don't want government to release trade secret or proprietary information about them. How accommodating should government be?
  • Information in the age of Madison -- James Madison is considered the patron saint of open government. But when he said the people must have access to information, just what did he mean?

Earlybird Registration through Nov. 18:  $30 members; $40 non-members
After Nov. 18:  $35 members; $45 non-members
Students:  $25
Donations, sponsorships: Any amount is welcome!!


Get more details and register here: ACCESS 2016: VCOG's Annual Conference


VCOG updates

FOIAHeroTomorrow is the deadline to nominate someone for VCOG’s annual open government awards. Entries should be submitted by filling out the form at the link below or by mailing the same information to VCOG, P.O. Box 2576, Williamsburg VA  23187. Awards are given to citizens, media and government for recent efforts in keeping Virginia state or local government open and accountable to the public.

Click her for a nomination submission form.
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VCOG's Megan Rhyne conducted a FOIA training session for editors and reporters at the Cavalier Daily, the student newspaper at the University of Virginia.
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In October, VCOG's Megan Rhyne taught the first of three weekly classes on FOIA and open government as part of William & Mary's Christopher Wren Association lifelong learning program. This is the fourth semester Rhyne has taught, and she is scheduled for a fifth semester in March and April 2017.
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On Oct. 4, VCOG presented a FOIA Basics webinar in partnership with Tidewater Community College. More than 200 people registered for the free 2.5-hour class. Attendees represented more than 90 local and state agencies, including police departments and school districts. The next webinar will be Jan. 4 and will feature presentations on both FOIA and records management. Registration for that webinar opens next month. A third webinar on law enforcement records is being planned for the spring. 
Revision forthcoming for '17

At its Oct. 17 meeting, the FOIA Council approved several draft proposals that will be incorporated into one bill to be presented to the General Assembly in 2017 making numerous revisions to the open records law.

Among the changes:
  • updates to the meeting agenda and notice requirements, including an amendment requiring notice of a meeting that is continued from a previous one;
  • a narrowing of the working papers exemption to limit when correspondence can be withheld; and
  • a rewrite and consolidation of the public safety records exemption section.
Also at its meeting, the council declined to endorse a legislative change sought by Sen. Scott Surovell, D-Mount Vernon, that would open police reports on unattended deaths (e.g., suicides) to the immediate family members of the deceased. Several law enforcement representatives expressed concern for the unintended consequences of making the records available, including fear that family members would share the report with others, including people who might be implicated in the death. Surovell pointed out that his proposal would only require release after police had concluded that a case was closed.


Metro oversight

Just hours before a hearing by the D.C. City Council on legislation to create a new Metrorail Safety Commission, the council offered revisions to the legislation that will beef up legal protections for transparency and public access. Previous drafts left it to the safety panel to write its own internal rules on access to records and open meetings, with vague enforcement. VCOG joined with the D.C. Open Government Coalition and the Maryland, Delaware, D.C. Press Association in a letter urging the council to adopt more specific measures on openness. The Virginia and Maryland legislatures must also vote to establish the commission.

Open government in the news

On the one hand, Virginia Beach announced the launch of an information-rich open data portal that gives citizens ready access to various city databases. Among the data sets being offered: Freedom of Information Act requests. The city plans to roll out new data sets each month. 
On the other hand, when the city took a vote on whether to let developers take on $240 million in debt to build an arena, it did so without sharing details about the plan with the public due to an agreement with the developers not to disclose their proprietary information.

Virginia Attorney Mark Herring gave so-called ballot selfies a thumb’s up in an opinion issued in October. Goochland County Electoral Board member Robin R. Lind asked the AG for his opinion out of concern that ballot selfies would “delay the process and may cause a good deal of consternation from people who think they’re being photographed by somebody else.” Despite a federal court ruling that a New Hampshire law prohibiting ballot-selfies infringed on free speech, Lind said he hoped the General Assembly would consider legislation to “flatly prohibit” the use of cell phones in polling places.

Do you ever wonder about the back and forth between government and records requesters, like who says what and why? Travis Fain of the Daily Press posted a story about the answers he’s been given when seeking records related to the state inspector general’s investigation into the death of Jamycheal Mitchell. The exchange shows how sometimes a FOIA request can take many twists and turns.

Twenty to 30 boxes of documents, including claims filed by veterans, were found in a storage unit once leased by a former Virginia Department of Veterans Services employee. The boxes were discovered by a citizen who bought the contents of the unit in an auction.

Winchester officials were mum about the removal of a member of the local architectural review board. Peter Serafin was removed by the city council without public discussion, though it was revealed that his removal was related to a conversation Serafin had with a third party that was captured on tape immediately prior to a public meeting. A summary of the tape’s transcript was released to the Winchester Star.

Daily Press reporter Dave Ress was given the 2016 George Mason Award by the Virginia Pro Chapter of the Society of Professional Journalists for his work as an investigative journalist and his advocacy during the FOI Advisory Council's three-year study of FOIA's exemptions.

A vote in the Town of Mineral to rezone property that was once the site of an elementary school had to be retaken at the behest of the town attorney. The 3-2 vote was invalid, the attorney said, because a vote to amend the zoning laws has to be by a majority of the board: “[T]he governing body consists of seven people, and with the mayor not voting [she serves as a tie breaker], it’s six; so, the majority would have to be four.”

The records found in response to a citizen’s FOIA request made to Amherst County school officials jumped from 198 to more than 3,800 when she expanded the search terms she wanted from simply “Pleasant View Elementary School” to variations of the school’s name, including “PVES,” “Pleasant View” and “PV.”

The U.S. district court investigating the federal corruption case against Norfolk Treasurer Anthony Burfoot issued a subpoena to the city’s television station seeking copies of 14 formal and informal city council meetings between April 2008 and June 2012.

The Daily Progress analyzed records obtained through FOIA to find that African-Americans accounted for nearly 80 percent of those stopped by Charlottesville police so far this year. Although the information shows city police continue to detain and, in many cases, search, black people more often than white people, Chief Al Thomas said the data should not be used to “divide the community.”

Just days after a motion to hire a consulting firm to provide administrative management to the City of Petersburg failed on a 3-3-1 vote, the city council revisited the proposal and voted to accept it. Some questioned the vote’s legality under the city’s charter, which says a motion to reconsider can’t be raised for 30 days, but the city’s attorney insisted that the vote was legal and that “council has a right to conduct its business.”

Residents in Hampton Roads whose property would be affected by proposals being floated to ease traffic congestion from the Peninsula to the Southside wondered why VDOT had not notified them of its possible intent to condemn their property, even though the agency had taken soil samples and scoped out power lines on the parcels.

Prompted by a request from a city council member, Newport News’ city manager agreed to get members completed presentations in advance of council work sessions. The rationale for delaying distribution of the documents was so council members wouldn’t “read about it in the paper first.”

Members of the Augusta County Board of Supervisors informally polled each other to agree to spend nearly $13,000 to disseminate information about an upcoming referendum on a new courthouse. The supervisors did not take a vote on the expenditure during a public meeting.

Idaho Senator Mike Crapo asked Alexandria to give him a copy of the report detailing his 2012 arrest for drunken driving following city police's refusal to release it to the Idaho Statesman and McClatchy. Had Crapo been arrested in Idaho, the report would have been available as soon as the case concluded, which was in January 2013 when Crapo pleaded guilty to a misdemeanor first-offense charge.

NFOIC panels in D.C. focus on open data, policing and practice disclosure

The National Freedom of Information Coalition concluded its 2016 FOI Summit in Washington D.C. This year’s summit featured an enlightened discussion, “FOIA at 50,” on the past, present and future of the Freedom of Information Act that included author, activist and government watchdog Ralph Nader. Nader presented a number of controversial government actions that were only exposed by using FOIA to obtain information. The annual two-day event featured presentations from FOI experts --many who direct their state’s FOI organizations and are affiliate members of NFOIC. Among the presentations which included policing transparency, open data, proactive disclosure, attorney fees, FOI litigation and advocacy campaigns, was the continually growing challenge for government to manage, and for open records petitioners to obtain public information in an increasing digital age.

A message from NFOIC

Did you know the National Freedom of Information Coalition provides financial support for FOI/open government lawsuits? The Knight FOI Litigation Fund, backed by a generous grant from the Knight Foundation, helps to defray upfront costs, such as filing fees, depositions, court costs and other expenses associated with legal actions. You can apply through your NFOIC state coalition or directly to NFOIC. Learn more at

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