Sunshine Report for September 2015

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VCOG'S next annual conference is Nov. 12 in Fredericksburg. Keep your eyes peeled for registration, sponsorship and content updates.

FOIA Council updates

In an opinion written in response to a question posed by Bruce Potter of Northern Virginia Media Services, the FOIA Council said the Prince William Board of Supervisors was wrong to go into closed session to talk about salary increases for board members. The council stressed that the exemption allowing for closed-door discussions about personnel must relate to “specific public officers, appointees, or employees,” not to general matters.
Read the opinion on VCOG’s website

The next meeting of the FOIA Council is Sept. 30 at 10 a.m.

On the VCOG Blog


FOIA in the courts: August 2015

Judges in Virginia heard at least three FOIA cases during August, dismissing one, keeping one alive, and taking one under advisement.

A Loudoun judge dismissed a FOIA suit brought by a Loudoun parentover alleged illegal two-person meetings. Brian Davison claimed that two members of a three-person committee had met without giving proper notice under FOIA. (FOIA applies to meetings of three persons or more, or to meetings of two people when those two constitute a quorum of a committee or public body.) The judge, however, said Davison didn’t have any concrete evidence that the two members had actually met. Davison also wanted records of any communication between the two members to show that such a violation had occurred and was given a cost estimate of $2,000 to provide them. Circuit Court Judge Jeanette Irby said Davison had not identified any documents the divsion had not produced or provided an estimate for. Davison said he planned to appeal.

Charlottesville judge Rick Moore denied the city’s motion to dismiss a lawsuit brought on behalf of the Public Housing Authority and the local branch of the NAACP that seeks disclosure of stop-and-frisk narratives prepared by the city’s police department. The city has denied access to the records, calling them criminal investigative records. Attorney Jeff Fogel says they were created to determine whether officers were following the law. Moore said an evidentiary hearing would be necessary to determine whether the records were exempt.

Despite a district court ruling against her, Janice Denton renewed her complaint against the City of Hopewell in circuit court that the city council improperly went into closed session to choose who would serve as mayor and vice mayor. A hearing Aug. 18 focused on whether the selection was an election or an appointment. Denton’s lawyer, Andrew Bodoh, claims the selection was an election and that it should have taken place in a public setting, not behind closed doors. Judge W. Allan Sharrett praised attorneys for both parties and the citizens who attending the hearing, calling the proceeding “an exercise in the American experiment in government.” Sharrett called for additional briefing on some issues. A final decision is expected by the end of October. You can read each side’s filings, as well as a transcript of the Aug. 18 hearing on VCOG’s website.

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Not as easy as A-B-C

Exactly what happened the night UVa student Martese Johnson’s face was bloodied as officers from Virginia’s Alcoholic Beverage Control confronted him outside a bar? Good question.

Exactly what did Johnson do? Exactly what did the officers do? And how did the officers’ conduct compare with agency policy?

More good questions.

Too bad we don’t know the answer to any of them because the ABC, supported by Gov. Terry McAuliffe, has refused to release the report that examined the incident. The administration has taken it one step further, saying that they can’t release the report; they’re prohibited from releasing it.

The administration’s journey to this conclusion is not only odd, it seems to be unsupported by Virginia’s FOIA.

It started when the agency’s conclusion clearing the officers involved and saying no policies were violated was announced Aug. 10. The ABC’s spokesperson said the report would not be released to the public, “Because Virginia law prohibits disclosure of personnel files.”

Pressed by Virginian-Pilot reporter Patrick Wilson (with an assist by VCOG), the agency claimed it was FOIA itself that imposed this prohibition, even though Wilson and Megan Rhyne pointed out that FOIA’s exemptions are discretionary, not mandatory. (Read Rhyne’s op-ed piece calling the refusal to release a choice, not a legally mandated decision.)

The agency stuck with its position, despite continued prodding from Wilson, until  it changed course 16 days later and said that release of the report was prohibited by a policy of the Department of Human Resources Management that says personnel records can't be released without the written consent of the records' subject.

There is no known precedent for allowing a policy to override state code, according to Rhyne, and the FOIA Council's Alan Gernhardt stated more broadly that he knows of no prohibition on the release of personnel records.

Several lawmakers, including Dels. David Ramadan and Barry Knight, have urged McAuliffe to release the report. And Rhyne has repeatedly pointed out that sensitive portions can be redacted before releasing the rest of the report.

Lawsuit filed over court records database

The Office of Executive Secretary of the Supreme Court and the Daily Press came close to reaching an agreement over access to the OES’ database of criminal case disposition records, but when talks failed, the newspaper filed a lawsuit against the agency in early August.

The petition seeks a writ of mandamus to compel the OES to produce the database. The OES claims that it is not the database’s custodian; instead, the records belong to the state’s clerks of court.

Though the OES has suggested that the clerks be named as parties to the lawsuit, so far they have not be named. The clerks' association opposes the idea because court cases are exempt from FOIA and instead are governed by a separate statute that allows the clerks to charge for subscription-based access to cases.

By the end of August, 48 clerks had agreed to release the data, while 70 declined. In emails accidentally copied to Daily Press reporter Dave Ress, some clerks explained their decisions: “Why should the press get special treatment,” asked Fredericksburg’s clerk of court, while the Isle of Wight clerk of court wondered, “if a nice little convenient spreadsheet is handed to [Ress], isn't there a concern as to what they do with the data once it's in their be manipulated anyway they see fit?....and then sell to other newspapers?”

The dispute over the database has been ongoing since last summer, when the OES said it would no longer provide access to the data it once provided in response to requests for records. The agency insists that access to the individual cases on the court system’s website is adequate, but it has also said the database might contain records that should have been expunged.

Open government in the news

When he took the helm as Rector of the University of Virginia Board of Visitors at its August meeting, Richmond businessman Bill Goodwin reminded members that they should not publicly criticize board decisions and not use email “unless you want to be on the front page.” . . . Augusta County defended the dearth of documents it turned over in response to a News Leader FOIA request for records related to discussions surrounding the re-accreditation process of the county sheriff’s office, saying, they “learned a long time ago never to put anything in an email you don’t want to see FOIAed.” . . . The Virginia Beach Police Department announced that starting this month, they will charge for information requests more often than they had in the past. The department said FOIA requests had nearly tripled since 2008 and that number to grow even more as officers start wearing body cameras. . . . After receiving a lot of public criticism over sweeping changes the Greene County Board of Supervisors made to its public comment policy, especially from the Rutherford Institute and VCOG, the board eliminated the most egregious provision, one that let the board chair determine which comments or speakers would be allowed. . . . A guest blogger for the Sunlight Foundation took a issue with the City of Richmond’s promotion of its new open data portal. While commending the city for “getting on board with the open data movement,” the blogger noted the city’s FOIA guidelines “are more than a decade oldand do little to actually guide anyone.” . . . Richmond Public Schools unveiled its “Let’s Talk” program, designed to “identify opportunities for engagement, spot potential crises and build stronger relationships with key stakeholders.” Users will have access to the district’s online checkbook and can submit comments and questions directly to board members. . . . When asked about Gov. Terry McAuliffe’s flight on a state-owned plane to see U2 in New York with Bill and Hillary Clinton, the governor’s staff said McAuliffe paid the cost out of his own pocket but also refused to provide any details, saying it was treating the Associated Press’ questions as a public records request. . . . Through a FOIA request, ProgressVA, a liberal advocacy group, found an invoice for $224,032.96 to cover the costs of a Republican consultant who helped state lawmakers draw congressional district lines. . . . An audit by the state auditor found no evidence of favoritism in the awarding of a major technology contract by the State Corporation Commission, despite close ties between the commission’s chief administrative officer at the time and an executive at the company. The auditor recommended, however, that the SCC should “clarify what procurement rules and regulations apply to them as an independent department of government." . . . In the chaos surrounding the on-air shooting of two Roanoke television reporters and the subsequent flight of the perpetrator, a state police officer ordered two BBC reporters to delete video footage they were recording. A VSP spokesperson confirmed such an order violates agency policy and said the incident was being investigated. . . . A Spotsylvania parent claimed the school board violated her free-speech rights when the chair twice cut her off while she attempted to speak about problems she and other parents had with a principal in the division. In defending the board’s action, one board member suggested that “any mention of an individual’s name would be appropriate.” If you find VCOG's services and resources useful,
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