Two steps forward, one step back

It was a rare double victory for the public when the Supreme Court of Virginia issued two opinions on Oct. 20 that both favored access. You can read in more detail about the two opinions here on VCOG's Blog(which includes links to the cases themselves), but in a nutshell, the court ruled (1) that there's a presumptive right of access to bond hearings, meaning a Newport News judge improperly closed a hearing to revoke the bond of a police officer accused of second-degree murder, and (2) the FOIA exemption for personnel records is not the wide-open catch-all that some public bodies have made it into, and that some records being held in their entirety should really have been redacted instead.

But the following week, we took a step back when a federal judge from the Eastern District of Virginia ruled that there is nothing wrong with the electronic court filing system managed by the Office of Executive Secretary (the court system's administrative arm) that allows attorneys to sign up for access but bars anyone else from doing so. To demonstrate how the system stymies effective oversight of the court system by requiring people to travel to individual courthouses to check on filings, reporters for Courthouse News Service documented their five-day, 25-circuit court trek down the western edge of Virginia, where they found paper copies of hundreds of newly filed cases, but were told by clerk after clerk after clerk that they (the clerks) were not allowed to give the reporters access to the electronic system. To add insult to injury, the opinion in Courthouse News Service v. Hade was available on the Eastern District's website only to subscribers to the federal court record service PACER. Luckily, a fan of access got hold of the opinion and posted it on this publicly available site.

- M.R.

Like we said before...

A Richmond general district court judge ruled on Oct. 14 that when the Youngkin administration withheld approximately 500 pages of messages from a FOIA request by a Richmond Times-Dispatchreporter it was required to describe the subject matter of those messages. The FOIA case, brought by the reporter, did not challenge the appropriateness of the administration's use of the working papers exemption, it only looked at that part of FOIA that says if records are withheld, "the volume and subject matter of withheld records" shall be identified "with reasonable particularity." This ruling follows another one by a different Richmond general district court judge in April, which found the Department of Education should have provided more detail on the 53 records it was withholding from another RTD reporter.

- M.R.

At the FOIA Council

At the Oct. 3 meeting of the FOIA Council, VCOG presented two bills we have asked legislators to carry for us. One is on keeping the names of purchase-card users intact on statements requested through FOIA. Sen. Scott Surovell will carry it. The other is on requiring the creation of a record of government settlements to prevent claims being settled through online portals without generating a paper trail. That one will be carried by Del. Elizabeth Bennett-Parker.

- M.R.

Board member recognition

Brian Colligan, the opinions editor for The Virginian-Pilotand the Daily Press and a director on the VCOG board, is the recipient of second-place honors in the Carmage Walls Commentary Prize. Colligan was noted for six pieces, including one on the FOIA lawsuit to get records related to the governor's tip line on "inherently divisive concepts" being taught in schools.
 

Out and about

October found Megan on the road for a presentation on FOIA through the eyes of the requester at the conference for the Virginia Association of Government Archives & Records Administrators in Virginia Beach. She co-hosted the three-day NFOIC conference on FOI and she sat down with students in the William & Mary Pre-Law Club to talk about how she uses her law degree during her work for VCOG.
 

Eye roll of the month

When a TV reporter asked a police department for correspondence among top administrators about an administrative topic during a specific period of time, the department said it was invoking a 60-day extension within which to respond. FOIA says the 60-day extension is available only for requests for criminal investigative records. When asked if the department was saying, then, that the administrative matter was criminal in nature, the department quickly reversed course to claim only a 7-day extension and apologized for the "clerical error."

Open Government in the News

Email obtained by the Richmond Times-Dispatch showed some members of the Youngkin administration expressing concern over the process the Virginia Tourism Corporation used to select a company to produce a tourism video that prominently featured Youngkin. The VTC did not use a competitive bidding process (they are not bound by standard state procurement laws) before it selected a media firm that produced campaign videos for Youngkin when he was a candidate for governor. Early on, top Youngkin aides expressed concern that the selection of Poolhouse Agency to produce the video could create the appearance of bias. The Office of the State Inspector General announced Oct. 26 that it would review whether the process used was appropriate.

The Hanover Board of Supervisors asked the county school board -- which is not elected, like most school boards, but is comprised of members the supervisors appoint -- for records related to accusations that the school board chair violated the Family Educational Rights and Privacy Act when he forwarded student information he received in his professional capacity from his personal email address to an advocacy group. The school board said it would cost $12,000 to get the recordsand it also cited FERPA in denying the supervisors' request to either give them unredacted messages from the private account or to visually inspect them in a secure setting.

The Pittsylvania County Board of Supervisors has been at loggerheads over the filling of a vacant seat on the seven-member board. Attempts at taking one tack or another have failed on 3-3 votes. Three members boycotted one meeting where the issue was being discussed, depriving the board of the quorum needed to conduct business, and at another meeting, those present couldn't even agree on the agenda. One sticking point is whether to have a "hearing of the citizens" and there was also an attempt to ban recording devices from any closed session. But what may have been driving the animosity was not the vacant seat, but the action in January to fire the county administrator without prior warning.

Citing the exemption for the governor's working papers, the Virginia Department of Education refused to release more than 300 pages of records related to a proposed revamp of the policy on transgender students in schools. In other email obtained through FOIA by Virginia Public Media, Attorney General Jason Miyares' office wanted the Department of Education to ban in-person public comments about the proposed. In-person comment would violate the board of education's bylaws, claimed an assistant attorney general. Instead, the AAG urged the board to direct the public to submit written comments on the Town Hall website.

The top administrator for Pulaski County characterized FOIA requests from Del. Marie March over various permits she needs to run her entertainment venue as attempts to intimidate him. The administrator said the first request he got was for all emails he had ever sent.

More than three months after he claimed his office had thwarted a plan by two undocumented migrants to carry out a mass shooting at a July 4th event -- a plan that neither state nor federal prosecutors have seen evidence of -- Richmond Police Chief Gerald Smith resigned. But was he asked to leave? No one will say. Richmond Mayor Levar Stoney said he does not get involved with the "hiring and firing of police chiefs," yet WTVR found several instances where Stoney was doing just that, including in July 2020, when he said, "I'm here to announce that I've asked Gerald Smith . . . to serve as the next chief of police.

A circuit judge in Spotsylvania ruled that even if the subject matter of a closed meeting was justified by an exemption, failure to follow the proper procedure before closing the meeting deprived a citizen of "a right or privilege conferred by the Virginia Freedom of Information Act." The suit alleged that the Spotsylvania School Board did not make the necessary motions before convening a closed meeting in January. On the other hand, because FOIA does not have a requirement that agendas be posted or even followed, then failure to do so did not constitute a violation the plaintiff could pursue.

An extensive look at records obtained from the Department of Education by The Free Lance-Star showed the back and forth between the Spotsylvania School Board and the department as the board chair maneuvered to get his friend, Mark Taylor, approved as qualified to be the district's superintendent, even though Taylor did not have a background in education. One of the contact points at the DOE at the time is now the school division's manager of executive communications. Two county residents have filed a petition to block Taylor's hiring.

Richmond School Board members sparred among themselves about whether a resolution could be added to the agenda and acted upon without prior notice. The resolutions, which ultimately passed, were to create work groups to review the curricula for reading, math and science, but were criticized by the Department of Education in emails obtained by the Richmond Times-Dispatch as "undermin[ing] the board's efforts to maintain order and were not in compliance with Roberts Rules of Order or the memorandum of understanding the board has with the department." The board chair responded that members "have the freedom to draft motions from not only action items but also board discussion."

The former city manager of Portsmouth, who was fired in May, filed a lawsuit where she alleges that three of the four members who voted to fire her have received bribes from a former council member and a local resident, both of whom had designs on having someone else serve in the position, she says. Angel Jones also said that if the city wanted to avoid paying money to settle her case, the city could instead pay her two years' worth of salary and benefits, and the named officials could resign and never seek public office again.

Rolling Stone magazine reported that an ABC News producer was the target of a raid by the FBI reported on in April by ARLnow. The producer, who often worked on stories about national security, has not been seen since the raid and documents in the case are sealed.

The Shenandoah County resident who said the school board chair deleted emails related to the renaming of two county schools dropped her FOIA suit against the chair. "I didn’t have an attorney at the time," she said. "I filed it at the General District [Court], and it should have been filed in Circuit," she added, though it is unclear why a FOIA case could not have been brought without an attorney in general district court.

A federal judge in the Western District of Virginia ruled that where a man challenging responses he received to his federal FOIA requests failed to exhaust his administrative remedies as to two requests, his claims should be dismissed for lack of subject matter jurisdiction. 

Confronted with criticism that he is too lenient, the Fairfax County Commonwealth's Attorney created a bond data dashboard to show that his office recommended people accused of violent crimes be denied bail at 76 percent of hearings but that judges did so only about half the time.