Sunshine Report for September 2017






The Sunshine Report: Online
Transparency News from the
Virginia Coalition
for Open Government
September 2017

Live streaming comes to the General Assembly

IMG_2063At an informational session for lobbyists about the layout of the Pocahontas Building — home to the General Assembly committee rooms and offices for the next four years while a new General Assembly Building is built — the clerks of the Senate and House confirmed that meetings of the standing committees will be live streamed starting in 2018. The Senate clerk indicated that most Senate subcommittee meetings would be, too, while the House clerk was not sure how its dozens of subcommittees would be handled.

Progress Virginia streamed committee meetings during the 2017 session. Volunteers set up smart phones on tripods at meetings of the standing committees and several subcommittees.

Government/citizens split court rulings

It was a busy month for FOIA litigation around the Commonwealth. From the Eastern Shore came a decision that individual judges are not subject to FOIA. "The central issue in this case is whether the Freedom of Information Act allows a citizen to require a Circuit Court judge to produce documents in the judge's sole possession that would account for the judge's use of an annual $1,500 state payment for work-related expenses," Accomack County General District Judge Gordon Vincent wrote Aug. 3. “The answer is no.” The Office of Executive Secretary of the Supreme Court, however, is subject to FOIA and it failed to follow the required rules in response to some of local resident William H. Turner's many requests for records related to th expenses.

Old_Bailey_DK_AL571585_qlsct3From the far westetern tip of the state came a ruling against the Town of Abingdon. Judge Danny Bird found that three members of the town council held an improper meeting when they sent a letter to a circuit judge asking for guidance on a fourth council member because the decision to draft the letter was not reached in an open meeting.. Bird did not fine the members but he required them to agree not to violate FOIA in the future. The Bristol Herald Courier offered a blistering editorial asking "whay was it impossible for the Town Council members in question to admit a possible misstep[?] . . . Shame on the Town Council for forcing citizens to resort to a court to connect the dots for them."

Henrico Circuit Court Judge James Yoffey reversed his July ruling that an individual senator could not be sent a FOIA request. “I was in error and I reverse my ruling,” Yoffy said from the bench at an Aug. 3 rehearing. The reversal allowed Loudoun County resident Brian Davison to pursue his FOIA complaint against Sen. Siobhan Dunnavant that she ignored his FOIA request for specific Facebook posts. After hearing testimony from Davison and Dunnavant, Yoffy ruled that while some Facebook posts could be public records, the one Davison sought were not. Davison dropped his claim that Dunnavant intentionally ignored his request, essentially conceding that she relied on her own staff and the director of the FOIA Council to take care of the request for her.

Finally, the Virginia Supreme Court ruled Aug. 31 that a Loudoun County parent (the same Davison as noted above) does not have a right under FOIA to “student growth percentile” data because the data contains “teacher performance indicators” and discloses identifiable teacher information that is prohibited from disclosure under the Education Code.
Read the opinion on VCOG’s website


On the VCOG blog

We've got a busy fall!

ACCESS 2017:
VCOG's annual conference

VCOG’s next annual conference will be Nov. 16 at the Richmond Times-Dispatch building.

We will feature panels on reporters who now handle government communication, the pressures front-line FOIA workers feel from management, and a roundtable discussion with the leaders of the Tennessee and North Carolina open government coalitions comparing their open government laws with Virginia's.

We're also thrilled to welcome comedian and politcial commentator Beau Cribbs as our keynote speaker!

Eventbrite - ACCESS 2017: VCOG's Annual Conference

Many thanks to RTD Publisher Tom Silvestri and Executive Editor Paige Mudd for hosting.

Please join the Board of Directors of the Virginia Coalition for Open Government for a dinner celebrating the retirement of Maria J.K. Everett, longtime attorney for the House General Laws Committee and first director of the Virginia Freedom of Information Advisory Council. Maria retired Aug. 1.
  Eventbrite - A Celebration of Maria Everett

FOIA & records-
management webinar

VCOG and the Library of Virginia are teaming up again with Tidewater Community College to present another free webinar on records management and FOIA. This is the third webinar held in partnership with TCC at their Chesapeake campus and at least the 10th FOIA/records-management joint training session with the library. Though the content is geared more toward government employees -- records managers, FOIA officers and anyone else who deals with government records -- anyone is eligible to attend.

Eventbrite - FOIA and Records Management, Sept. 13, 2017

Who is your FOI hero?

Do you know a reporter who has used public records to shed light on an important community issue? How about someone in government who goes above and beyond the letter of the law to promote transparency? Or, maybe you know a citizen who has used his or her own time and money to get answers from our representative government?

Nominate your FOI hero on VCOG’s website. Awards will be announced in November and winners will be acknowledged at VCOG’s annual conference on Nov. 16 at the Richmond Times-Dispatch building.


At the FOIA Council
  • The FOIA Council's first opinion under its new executive director, Alan Gernhardt, tackles the three-day notice rule for public meetings. Read AO-06-17.
  • A subcommittee named to study possible revisions to the electronic meeting provisions of FOIA will meet for the first time Wednesday, Oct. 4, at 10 a.m. in House Room 2 of the Capitol Building in Richmond.
  • The full FOIA Council recommended two drafts tweaking the open records exemptions for trade secrets and proprietary information. A summary of the Aug. 14 meeting where the recommendations were made will be posted here.


Open government in the news

Judge Michael Levy, a Stafford County judge sitting in Hanover Circuit Court, dismissed a defamation case brought against a Hanover County Supervisor against Style Weekly. The supervisor claimed an article improperly suggested he was improperly using his position to influence Hanover schools, but the judge found that Style Weekly’s coverage did not display “actual malice” toward the supervisor.

According to the 675 of pages Portsmouth provided to the Virginian-Pilot in response to a FOIA request, Portsmouth Commonwealth Attorney Stephanie Morales traveled out of state more than any other top prosecutor in South Hampton Roads. The Pilot’s request was prompted by was was characaterized as opposition research conducted by Sen. Louise Lucas.

The Daily Press continued its review of documents related to the Peninsula Airport Commission’s improper guarantee of a loan to a financially struggling airline. During August, the paper found that the commission’s former director did not log many of his gas transactions for his personal vehicles and that the only risk analysis about the loan was written 2.5 years after the fact and was only two pages long. The paper also used the records to construct a detailed timeline of the weeks before the airline first took off from the Newport News/Williamsburg International Airport. 

The Chesterfield School Board altered its public comment period. Instead of being able to comment on each action item, residents would be able to speak during two public comment periods. The first period would come before action items and would apply only to those items on the agenda. A second period, for non-agenda items, would come after school board members have voted.

An independent investigator determined that Buchanan Mayor Larry Hall did not make disrespectful comments to female town officials. The investigation was prompted by a citizen’s letter. The town council discussed the letter and the investigator's findings in closed session.

A special prosecutor was named to investigate sworn testimony Nottoway County Administrator Ronnie Roark gave in a FOIA case that Nottoway Commonwealth Attorney Terry Royall alleges was untrue. The underlying FOIA case involved a request for complaints Roark received about a newly hired animal control officer.

Virginia Beach appointed a special prosecutor to investigate whether a Virginia Beach Development Authority member should have recused himself from a vote on a public-private project financed by TowneBank. The member’s wife works for TowneBank.

The City of Lynchburg held a series of “pop-up” listening sessions around town designed to collect citizen input for the creation of the Downtown 2040 Master Plan.

Four Richmond police officers who were assigned to Richmond former Mayor Dwight C. Jones’ security detail are suing the city for back wages, alleging they were required to work unpaid overtime when the department retroactively deducted previously earned overtime after receiving a FOIA request seeking records on the cost of the security detail.

The Aug. 12 Unite the Right rally in Charlottesville produced a flurry of closed sessions both before and after the event. Beforehand, the city council met in closed session to explore options for stopping the event. After the rally, there was a closed-door meeting just 30 minutes into a regular meeting where dozens of angry residents shouted at them. Another closed session was held to hash out what happened on the 12th and who was to blame. Then on Aug. 28, the council held a closed session to discuss the discipline of a fellow board member. That member turned out to the be mayor. 

A memo obtained by Politico revealed the Department of Homeland Security issued a confidential warning to law enforcement three days before the Unite the Right rally, saying the rally would likely be “among the most violent to date” between white supremacists and anarchists.

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