Sunshine Report for November 2023


the month that was
october '23

The turning of the leaves and the temperature during this first full month of fall did nothing to turn off the steady stream of litigation surrounding FOIA. If it sounds like there have been more cases recently, you'd be right. When the news industry began contracting 25 years ago, one of the things squeezed out was the pursuit of legal options when faced with stonewalled FOIA requests or creative ways to meet and talk away from the public's prying eyes. A vacuum ensued, meaning there was no longer a disincentive not to try out one of these new-fangled interpretations. Today, you'll read about cases brought in Arlington, Augusta and Hanover counties, Richmond, plus a few that have been filed in federal venues. The wheels of the justice system are turning again.


this should not stand

A Hanover County circuit court judge is considering whether the county sheriff's office was correct in withholding the names of nearly all of its police officers when requested as part of a salary database.

The county argues disclosing the names would have a "potential negative impact on undercover officers and operations." A Chesterfield general district court judge agreed with that argument in a similar case a few months ago that allowed the county to withhold the names of more than 500 officers. Meanwhile, both the Henrico County police department and the sheriff's office have used the same argument to withhold the names of more than 100 officers.

FOIA specifically says that salary information must be released by name. But instead of following this mandatory disclosure, the counties are relying on an exemption that gives them discretion to withhold the identity of undercover officers. Chesterfield claimed that any one of its officers over a certain rank could work undercover, though the county later admitted that "undercover" meant they might still be wearing a badge or parts of their uniform, and the Hanover sheriff said undercover operations were "very fluid."

The Virginia Association of Chiefs of Police questioned the motives of the FOIA requester and said withholding the names is justified because of short-staffing and increased antipathy for law enforcement; it's not about having a "secret police force."

The Virginia General Assembly defeated a bill in 2016 that tried to make the names of law enforcement officers exempt under FOIA. There would have been no need for that bill if the law really allowed what Chesterfield, Henrico and Hanover counties are doing now. And as if on cue, here's a reason why names of employees is important: through a public records request for salaries and accrued benefits, the Culpeper Star-Exponent found that the two brothers of the county sheriff (who is under federal indictment on bribery allegations ) were paid tens of thousands of dollars in accrued sick time and vacation leave and far more than anyone else.

This is not OK. The judge should put an end to this end-run around statutory requirements that are designed to guard against corruption and to support government spending accountability.


A tale of two reports

The Virginia attorney general's office refused to release a copy of a report prepared by two outside law firms commissioned by the AG at the behest of UVA to conduct an external review of events surrounding the November 2022 shooting of three UVA football players by a former player. The AG said the report was protected by the attorney-client exemption in FOIA, while UVA also said it would not release the report until it could be reviewed for "factual accuracy."

This didn't sit well with us at VCOG. We remember when, just recently, the AG (rightly and successfully) argued to a judge that a law firm review of the events surrounding two sexual assaults by a student should be released to the public and not withheld under the attorney-client exemption.



And another thing

A couple of incidents here and around the country recently had Megan grumpy and critiquing from her rocking chair, but state records managers brought her back to the light.


FOIA Friday

A broad exemption

The Virginia Mercury's FOIA Friday feature on Oct. 6 highlighted a report on college presidents and the working papers exemption that obscured investigation into CNU's expansion.


X Marks the Spot

What is specific?

Video from the Oct. 5 meeting of the Alexandria Public Schools board featured a closed session motion under the personnel exemption for "2700 specific public employees."


Is there a parliamentarian in the house?

The Pittsylvania County Electoral Board engaged in a testy exchange over whether the chair's report should be attached to the minutes of a previous meeting.

Member David Law: “When I read from Robert’s Rules, the contents of the minutes, page 446, the minutes should contain a record of what was done at the meeting, not what was said by the members."

Chair Anita White: “Is there a point in that?”

Law: “There is. You constantly want things attached to the minutes that don’t belong as part of the minutes.” 

White: All reports given at the meeting should be attached to the minutes.

Law: "So what I just read means nothing, even though you said that we should follow Robert’s Rules.”

A county resident spoke up to encourage the board to get a parliamentarian to help them in future meetings, though that didn't prevent Law from later chastising White for responding to another speaker: "Excuse me, this is not a question-and-answer session."


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open government in the news


Employees of Spotsylvania County Public Schools were sent an email telling them that without exception, they are to let the school superintendent and the school board chair know if a school board member contacts them for information. Meanwhile, as reported by the Free Lance-Star, the school board has not approved any public meeting minutes since August. 25, 2022. Videos of meetings within that time are archived on the school division's website, but minutes, which FOIA requires for public meetings, are not.

The Virginia Department of Health chose to withhold records related to an investigation into the budget shortfall faced by the Office of Emergency Medical Service, which resulted in canceling an annual EMS worker training symposium.

The Town of Warrenton, currently being sued for its refusal to turn over emails to and from the town manager and town mayor related to a proposed Amazon data center, and facing criticism for accepting Amazon's redactions to site plans filed with the town, filed comments with the retail giant asking it to justify blacking out the information.  
NOTE: VCOG filed an amicus brief in the lawsuit on the side of the record requesters.

After the Richmond Public Schools attorney sent an email calling two proposed resolutions offered for discussion at an upcoming meeting "inflammatory" and possibly inclusive of factual inaccuracies, the school board chair contacted other members of the board to get a consensus to not publicly post the resolutions. Nonetheless, one board member raised one of the resolutions for discussion anyway, though it failed on is merits.

Though it did not appear on the agenda posted prior to its Oct. 12 meeting, the Albemarle County School Board surprised the audience by voting to renew the superintendent's contract. The board's vice chair dismissed the citizen petition calling for the superintendent's removal, saying it was based on misunderstandings.

The Lovettsville Town Council censured a fellow member for violating the town's conduct and ethics standards by missing four consecutive meetings in a two-month period and six obligatory meetings.

A Roanoke man was found guilty of disorderly conduct based on his actions at a Roanoke County School Board meeting. He was ordered to pay a $250 fine for the way he voiced his opposition to the board's adoption of the Youngkin administration's policy on transgender students and for going "dead weight" when police officers tried to remove him from the meeting.

A U.S. federal district court judge ruled that a Prince William County high school principal's Twitter (as it was called then) account was not a public forum, thus allowing him to block access to his feed by the then-school school board chair. “Even though Dr. Bishop is the principal of Patriot HS and many of his posts on the Twitter Account were related to Patriot HS, simply working for a school does not vest an employee with the unilateral power to open a First Amendment public forum on a personal social media account,” the judge wrote.

The Arlington County Public School Board grappled with the anonymous comment section of a new citizen-engagement platform, ThoughtExchange. When one board member asked what the district thought it was going to achieve by creating yet another social media account with anonymous users, an APS staff member said that it would give people the opportunity to comment without fear of retaliation. The board chair reminded the audience at the meeting, “This is a new piece of software. And yes, you can be a keyboard warrior to your heart’s content, behind your keyboard, in the privacy of your own home, but remember, that there are humans on the receiving end of this.”

The Charlottesville City Council suspended citizens' ability to comment via Zoom following an incident earlier in the month where users flooded the forum using fake names, without the camera turned on, and spouting praise for Adolf Hitler.


The Virginia Supreme Court refused Fairfax County's request to reconsider its unanimous March 23 ruling that struck down the zoning ordinance overhaul passed in the first few months of COVID's in-person restrictions. The meeting was held all-virtually and the Supreme Court said that as the law stood at the time -- after the lockdown but before more flexibility was added to the virtual meetings statute -- a non-emergency, non-time-sensitive matter was not a permissible topic for an all-virtual meeting.

A U.S. federal district court judge dismissed the $2 million lawsuit filed by a member of the Loudoun County School Board who claimed her colleagues violated the Americans with Disabilities Act by failing to continue granting her permission to participate in school board meetings remotely.

The Virginia NAACP said it would file a FOIA lawsuit against Gov. Glenn Youngkin. The organization claims that the governor's office did not turn over all the records responsive to its request earlier this year for records related to the state's new voting rights restoration process.

Video from a Gloucester County town hall meeting about a possible bond referendum showed an irate citizen grabbing the county attorney by the throat.

A judge in Arlington County threw out the FOIA portion of a lawsuit aimed at undoing the county board's vote on the so-called Missing Middle zoning ordinance. The plaintiffs had claimed that the county didn't share certain information with the public until the day of the vote.

A U.S. federal district judge ruled in favor of an opponent of the proposal to build a casino in Richmond who was denied access by the state Board of Elections to voter registration lists.

Richmond refused to release risk assessments, inspections and documented complaints about a tree in Libby Hill Park that fell on and killed a man who was working on removing it during storm cleanup. The city cited an exemption for law enforcement investigations even though law enforcement is not involved in the review of the incident. That review is being conducted by Virginia's Occupational Safety and Health Administration. There are no exemptions for VOSHA records in FOIA.

The final report issued by the Virginia Beach Mass Shooting Commission took note that its lack of subpoena power prevented them from compelling some people to talk to the commission or punishing those who refused. The reported noted several instances where city employees' fear of retaliation kept them from cooperating. The report recommended legislation that would guarantee anonymity to people wanting to talk with investigative commissions.

An Augusta County district court judge ruled for the county in a suit brought by the Augusta Free Press that alleged the county improperly withheld recordings made by a member of the board of supervisors during a closed meeting to discipline another member who had recently resigned. The judge wrote at length about why the meeting could be closed under the personnel exemption, even though the member had resigned, but in just a sentence or two said that the recording was not subject to FOIA: "This recording was done by a member for simply self-serving purpose and is not a record of the agency nor is kept in a normal course of its business."

The new Loudoun County Public Schools superintendent said the administration is looking into ways to make information more accessible to the public, including possibly posting requests made through the GovQA FOIA filing system online for others to see. Meanwhile, the school board rejected a member's request to again allow the faces of members of the public speaking during the public comment period to be shown on camera. Currently, only the audio portion of the comments is broadcast, a practice justified as necessary by one board who wants to clamp down on those who are trying "just to get their 15 minutes of fame."


FOIA Council
subcommittee meetings


Electronic meetings

November 9 @ 1 p.m.

Settlement amounts

November 22 @ 9 a.m.

Other meeting issues

November 22 @ 10 a.m.

All meetings will be held in House Room 1 of the Virginia Capitol


Virginia Coalition for Open Government

P.O. Box 2576
Williamsburg VA  23187