Sunshine Report October 2015 continued reading





The Sunshine Report -- continued reading
October 2015

Supreme Court ruling redacts FOIA

In an opinion with potentially far-reaching implications, the Supreme Court of Virginia ruled Sept. 17 that courts should give “substantial weight” to  government agency explanations for why a FOIA exemption applies to a request for records, and that only exemptions containing certain key phrases are subject to redaction. Both rulings ignore provisions to the contrary elsewhere in FOIA.

The case arises from Del. Scott Surovell’s attempt to gain access to records related to the Department of Corrections’ policies and procedures for administering the death penalty, particularly by the electric chair. In response to his request, the agency produced some records but not others. Surovell sued, and after a day-long hearing, the circuit judge ruled that the DOC could properly withhold some records, must disclose some records and must redact and disclose others.

Justice Cleo Powell, writing for a 5-2 majority, started out the legal analysis of the questions presented with a misstatement of the law: “While VFOIA expresses a clear legislative preference for ‘openness,’ it simultaneously mandates that certain records be excluded from production.”

FOIA does not mandate exclusion, and fact acknowledged later in the opinion.

On the “substantial weight” issue, the court sent the case back to the circuit court for reconsideration in light of this new standard, one that seems to undermine section 2.2-3713(E) of FOIA that says government must prove the applicability of an exemption “by a preponderance of the evidence.”

The majority opinion did not address FOIA’s general duty of redaction, located in 2.2-3704(B)(1), though the dissenting opinion, authored by Justice William Mims, did: “I believe VFOIA requires public bodies to determine whether an exemption applies to an entire record or only to specific information contained therein.”

Surovell wrote a letter to the FOIA Council, which met Sept. 30, urging the council’s newly elected chair, Del. Jim LeMunyon, to work on a legislative fix to the court’s decision. LeMunyon earlier told a Daily Press reporter that he thought the ruling was “out of line” with FOIA’s intent.

VCOG filed an amicus brief supporting the general duty to redact.

Pity Portsmouth

The Hampton Roads port city has been weathering a number of open government storms, the latest of which involved refusal of an interim police chief to speak in front of the press and adoption of a policy aimed at silencing members from speaking about matters discussed in closed session.

The interim police chief’s refusal came when he spotted a television reporter as was preparing to speak at a local Baptist Church. Though the reporter had been invited by someone in the area, the chief said either the reporter had to leave or the chief would not speak. The reporter left, but asked the chief about his decision afterwards. The chief said he didn’t like being “blindsided” by the media.

Earlier in the month, the city council adopted a policy that would fine members $1,500 if they publicly disclosed something the council talked about in closed session. Two council members (one of which, unsurprisingly, is someone who recently openly talked about a closed-session topic) voted against the measure.

Meanwhile, at a public meeting where citizens complained about recent less-than-transparent practices, one councilman said that they had a closed session in one instance so members could “get our minds together,” which is not an exemption to FOIA’s open meeting requirements.

And the council continued to spar with the Virginian-Pilot over whether a closed meeting was held to discuss altering the rules on public comment periods. The council explained that the discussion was held immediately after a closed session at a work session as the members were walking to a meeting of the full council help immediately after that.

The curious tale of an ABC report

As reported in the September Sunshine Report, the Virginia Alcoholic Beverage Control refused to release the report prepared in response to the confrontation between ABC agents and UVA student Martese Johnson, a confrontation that bloodied Johnson’s face. The ABC, supported by the governor, said FOIA’s personnel policy “prohibited” the report’s release, a position not supported by the many references in FOIA to “discretionary” release. The administration then cited a personnel policy as the reason it couldn’t be released, even though policy doesn’t trump law.

The saga, and the public pressure to release the report — even a redacted version of it — continued on into September. Sen. Frank Wagner and Del. Todd Gilbert called on the governor to release the report and suggested a joint hearing on the report be scheduled by the two legislative committees they chair, both of which hear bills related to the ABC.

Finally, on Sept. 21, the governor’s office released the report, which noted that Johnson had been drinking earlier in the evening and which concluded the officers did not violate any ABC policy. The governor said release of the report was OK now because the agents named in the report had signed waivers.

Most of the report’s findings were neither new nor shocking, prompting many to wonder what all the fuss about not releasing the report about?


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