Sunshine Report for October 2021

Busy month for FOIA in the courts

Suffolk circuit court judge ruled in favor of a citizen who was escorted out of a school board retreat when she insisted on being in the same room where the board members were instead of in a separate room where the public and press were told to watch a live broadcast of the meeting. Judge Matt Glassman called it "shameful" that a citizen was threatened with arrest for trying to assert her rights to be in that place." The school board argued to the judge that COVID restrictions necessitated the set-up (though notice of the meeting did not mention that), but the judge noted that there was plenty of room for some people to be inside and the separate room was "suitable for overflow."

In Fairfax County, the school district -- represented by lawyers from Hunton Andrews Kurth -- attempted to claw back unredacted records they had earlier released in response to a FOIA request for attorney billing statements. The schools filed for an emergency injunction to make the FOIA requester give the records back and to force another woman, who had published the invoices on her website, to take them down. The memo the scool district filed in support of the injunction, which can be read here, called the invoices personal property and insisted the district would be harmed if they were released without redactions.

A judge sided with James Madison University in a FOIA case brought by the editor of the student newspaper, The Breeze. The judge agreed that FERPA (a federal statute that protects student educational records) supported the university's decision to wait 30 days before releasing daily dorm-by-dorm positive COVID case numbers. The judge said it would be "very easy to correlate the extended, required absence of an individual from the dormitory with the information provided." I disagree with the ruling and I wrote about it here because I think it gets wrong the actual ability to connect the series of dots necessary to reach a conclusion that any particular student has COVID. Not to mention that the university's policy doesn't stop students -- roommates, friends -- from sharing information about one another's COVID status without The Breeze publishing a single word. (*the link above includes images of the ruling)

- M.R.

Weekly release of arrests stopped in Fairfax

For years, the Fairfax County Police Department has released a weekly report of arrests made, listing the name of the offeder, last known address of the offender, date of the offense, date of birth, charge, and the arrest location. Advocates for immigrants said releasing name and address information potentially violates the county's "Trust Policy," adopted in January, that says the county will not give the Immigration and Customs Enforcement information that could be used to pursue deportation proceedings against undocumented arrestees. The police department's response was to stop releasing the list altogether. Police said the information would be available through a FOIA request, but to make a FOIA request for arrest data, one has to has to have at least some knowledge of the arrest that would meet the "reasonable specificity" requirement. It's a chickend-and-egg problem. And, as noted by The Washington Post, "News outlets often use the blotter to guide reporting, and neighborhood groups use them to stay abreast of crime trends and offenses in a particular area." Police scanners have been used as a similar tool by the press and public, but many of the scanner feeds across the country have been encrypted. So now two longstanding ways of keeping tabs on crime and monitoring the police appear to be going dark.

- M.R.

Don't be so suspicious

What can Mona Lisa and John-Ralphio Saperstein (of "Parks & Recreation" fame) tell us about FOIA (and life): don't be so suspicious.

Read more here

FOIA by the numbers in Fairfax

The Fairfax County Office of Public Affairs released its third annual report of FOIA statistics. In addition to being chock full of interesting tidbits (how many requests filed, what percentage asked for records from certain county offices, highest fee charged), it's a great snapshot of FOIA's reach and value to the community and beyond. VCOG sure wishes more public bodies kept and reported similar statistics!

Open Government in the News

Correction: The following explanation of the Henry County Board of Supervisors meeting mentioned in last month's Sunshine Report was explained to VCOG by the county’s Public Relations and Community Liaison like this:

-The Henry County Board of Supervisors did not adjourn its meeting nor did the Board clear the room before going into closed session. The Board took a vote to enter into closed session and the Board left the room to have closed session on our 4th floor. The public and media were welcome to stay in the room until the Board came out of closed session.
-There was no additional announcement for reconvening necessary before the vote was taken. The agenda sent to the public specifically states the closed session occurred during our 3 p.m. session which means any vote coming out of closed session would also be part of that 3 p.m. session. This was announced to the public days in advance.

School board meetings across the state (and country) continued to produce contentious confrontations. Citizens were removed from meetings in Clarke CountyFloyd County and Pittsyvlania County over their refusal to wear a mask while in the meeting room. A meeting in King William County had to be paused until masks could be donned and calm restored. Prince William County and Loudoun County have both adjusted their comment period rules in attempt to regain control over the meetings.

Richmond city council members and the mayor halted a meeting on low morale and staffing issues in the city's police department after their lawyer told them the meeting had to be made public.

The Daily Press and The Virginian-Pilot went to court early last month to challenge a judge's decision to block the public from a court hearing of a man accused of killing a Newport News police officer last year.

The chair of the Southampton County school board clarified what she meant when she said that if the county board of supervisors needed or wanted information that would help it make better informed decisions that, "of course, there's a document that is available to the public -- if they want it, they can certainly get it."

Due to COVID concerns, the Pound Town Council held an emergency meeting in an outside picnic area to discuss its opposition to Wise County's intention to ask the General Assembly to revoke the town's charter. The council -- or at least two members of the council -- met back inside the government building the following week and voted to appoint someone to a vacant seat. The action has prompted a lawsuit by local citizens to challenge the members' assertion that the two members constituted a quorum of the council that could take action.

A Hopewell city council member filed an injunction against her fellow board members for taking a vote to grant paid time off benefits to its departing city attorney. The member felt the vote was procedurally improper, and she also said she needed to know how much it would cost before she voted one way or the other. She dropped the injunction suit when the council agreed to have a revote.

In addressing the unusual resignation of nine staff members from the Harrisonburg school district, the superintendent of the district repeated an oft-repeated but mistaken interpretation of FOIA that Virginia law prohibits him from publicly discussing why an employee chose to resign.

A Loudoun County School Board member, in a Facebook post, correctly characterized the closed session her board held to discuss personnel issues -- in this case, the appointment of a member to fill a vacant board seat -- as "not a requirement but a choice."

The Halifax County administrator informed supervisors via email that they should "have NO COMMENT" if asked about a Virginia State Police embezzlement probe into the county's chief animal warden.

The Rockingham County School Board moved its meetings into non-school venues in an effort to diffuse tensions over wearing masks. According to the Daily News Record, the audience in the different venue was "calm and well behaved for the first time in months." 

The Accomack County School Board censured one if its members after it discovered she contacted the Virginia Department of Education without permission to discuss changing the school division’s application for American Rescue Plan funding. The censure was based on a board policy that states, "I have no official authority unless, by official action, the board delegates me to execute a specific action.”

The Richmond Times-Dispatch used emails obtained by FOIA to piece together the tangled interplay between an investigator hired to look into jail deaths and the Department of Corrections.

For three hours in Richmond, dozens of people from Southwest Virginia told the State Water Control Board about why they opposed or supported the Mountain Valley Pipeline project. A board member defended the in-person-only meeting, which was not streamed, by saying, "“I don’t think any of us are against the idea of expanding public access. “The problem is we’ve got statutory, regulatory, logistical and resource issues that keep us from doing it.” (Note: FOIA does not prohibit streatming an in-person meeting.)

A Charlottesville judge ruled that the city's 20-minute notice of its special meeting to discuss removing a statue of Meriwether Lewis, William Clark and Sacagawea did not violate FOIA's notice provisions for specially called or emergency meetings. On the other hand, the city did err when it did not respond to the plaintiff's FOIA request for records within the statutory deadline. The city's attorney argued the email subject line didn't explicitly mention FOIA and so it got lost in the shuffle, leading the judge to conclude that though it was a violation, there was no evidence the request was willfully or knowingly ignored.

The JMU board of Visitors renewed the university president's contract for another five years. The matter was not on the published agenda and it took place after a 1.5-hour long closed meeting that the agenda listed as the 10th of 10 items for the meeting.