Sunshine Report for September 2022



It's been a year

Curious to know how VCOG spends its days? Take a look at our 2022 annual report. In addition to updates on our advocacy and education efforts, you'll find out how VCOG also has a national voice and how we pride ourselves on speaking truth to power, no matter the party or the politics.

History's records

Earlier this week, I got to thinking about history. I'm reading War and Peace right now (I know, right?) and Tolstoy has strong opinions about the Great Man theory of history. I started wondering how he knew enough about Napoleon -- who died 8 years before Tolstoy's birth -- and the Napoleonic Wars to write in such vivid detail and imagery. And the answer is records. Sure, there were still folks who could give first-hand accounts, but much of what he learned -- what we learn -- about past events comes from records. So, I wrote a little something linking records and history to the present.


Norfolk takes unusual position

In response to a pro se FOIA suit filed by political journalist Josh Stanfield, the city of Norfolk took an unusual position. The city said that a city council member's failure to respond to Stanfield's request in a timely manner was excusable because council members are not public bodies, not records custodians and therefore not required to respond. "[D]etermining that a part-time elected official is a public body and custodian of public records goes far beyond what the General Assembly contemplated in enacting and maintaining FOIA," the city's response to Stanfield's suit reads. Therefore, the city continues, "none of the obligations of a public body or custodian of such records arose until the request was forwarded to the actual custodian, the City's FOIA office." In my 20+ years of working for VCOG, it's the first time I've run across this interpretation. Norfolk Circuit Court Judge David Lanetti is expected to issue a ruling soon.
Read the city's response on VCOG's Google Drive.

- M.R.

Records contradict public statement

After boldly asserting that an anonymous tipster had allowed Richmond police to thwart a planned mass shooting during the July 4th fireworks display at Dogwood Dell, the local prosecutor told a judge that there was "no evidence" linking any alleged plot to the Dogwood Dell location. The police chief insisted otherwise prior to telling reporters that he would no longer talk about the case. Reporting by the Richmond Times-Dispatch, which included records obtained through FOIA, revealed that members of the chief's own department told him that the location of any potential incident was "unknown." In response to the story, the chief said, "For any confusion or anxiety that my stating Dogwood Dell was the most likely target, I am deeply sorry."

- M.R.

National FOI Summit

The National FOI Coalition's FOI Summit is October 18-20 on the Whova online platform. The program is continually evolving, but you can register at any time for the 12-15 sessions that are open to the general public. It's only $30!

Open Government in the News

In a report on multiple nursing homes operating under questionable conditions, WRIC pointed out there is currently no way for the public to view which facilities are operating on provisions licenses. Instead, the TV station -- and the public -- has to make periodic requests under FOIA for that list.

A federal district judge ruled that former Office of the State Inspector General investigator Jennifer Moschetti can continue some of the claims related to her dismissial related to her work on the OSIG investigation into Parole Board irregularities in 2020. The judge allowed her defamation claims against former Gov. Ralph Northam's chief of staff and the former public safety secretary to proceed. However, the judge removed OSIG and OSIG's spokesperson from the case altogether.

Virginia Beach held its first official council meeting in its new council chambers, which is twice as big as the old one, with the capacity to seat 300 people, an overflow space and several conference rooms where meetings are live-streamed. That didn't stop three council members from complaining that they had been excluded from out of out-of-meeting discussions by other council members about adding a referendum question to the November ballot.

Appalachian Voices filed a lawsuit against the Virginia Air Pollution Control Board, Virginia Department of Environmental Quality and the Office of the Attorney General, claiming they are violating FOIA by not releasing an opinion the AG supposedly shared with a Control Board member who talked about it at a public meeting. DEQ and the AG have both said the document doesn't have to be released under an exemption for legal advice, but Appalachian Voices says the exemption can't be used when the client (the board member) has publicly disclosed the information.

Members of the Richmond School Board sparred with one another over the propriety of holding a closed session about whether the school board attorney had a conflict of interest relating to the rights and ownership of the Arthur Ashe Jr. Athletic Center. Board member Kenya Gibson said the board should publicly discuss whether the board would be adequately represented on issues that intersect with the city. School Board Chair Shonda Harris-Muhammed disagreed: "I am not going to discuss legal matters in public."

The Virginia Tech Board of Visitors announced it will live-stream all full board meetings for the 2022-23 academic year. Access to the feed will be available on the BOV's website.

American Oversight, a nonprofit, is suing the Youngkin administration over the governor's refusal to release records related to an email tip line set up for parents to report the teaching of "divisive" subjects in school. Media outlets have filed a separate, related suit.

A Front Royal Town Council member abruptly resigned after the council took a vote to fire the town manager, calling the council a "kangaroo court." A few days later, he wrote a letter to the council asking to withdraw his resignation. He admitted he "acted rashly," but also acknowledged that it may be a moot point.

South Hill Town Council member Ben Taylor abruptly resigned his seat after a heated exchange over his call to investigate a trespassing complaint against a fellow council member, Shep Moss. The council voted against Taylor's motion to refer the complaint to law enforcement but did agree to file a FOIA request for records related to the incident. The complaint relates to Moss' insistence that town documents were improperly disposed of. The photos he had of records set out on a loading dock could only be obtained through trespass, Taylor said. The council members and the audience all began yelling and talking over each other. Eventually, Taylor said he was quitting because "my moral compass will not allow me to be a part of an organization that turns its back on what we saw tonight.” 

The Gloucester County School Board considered a proposal to change its operating policies to prohibit the recording of closed sessions. The board member who offered the proposal said the change was needed because information from those sessions was being leaked to the public.

More than three dozen citizens spoke at a Hanover County School Board meeting about the proposed policy on transgender students' access to restrooms and locker rooms. The board chair allowed speakers to continue past the one hour set for comments but did have the third speaker removed from the chamber after she talked over the chair and refused the chair's request to stay on topic.

The chair of the Spotsylvania School Board faced questions over the way he was going about attempting to install a board member from his own nonprofit as superintendent of the school district. There was disagreement on the board about the submission of Mark Taylor's name to the State Board of Education, which is required to review possible candidates who do not have a certain academic background in education. One member said the board had not agreed to submit the name, while School Board Chair Kirk Twigg said there was "a choice made in private session" by "majority thumbs-up vote." At a later meeting, the board eventually voted on sending a letter to the Board of Education, but not before board member Dawn Shelly, who voted no, said to Twigg that, "by bringing this to a motion tonight, you are admitting that you wrote a fraudulent letter last month." Meanwhile, the board hired a new "manager of executive communications" whose job will be to cover things that are great about the school district but not to cover the school board itself.

The Loudoun County School Board attempted to file its appeal of a judge's ruling allowing the attorney general's special grand jury to continue its investigation of the school district's handling of two sexual assaults under sealThe Supreme Court rejected the request.

A Virginia Beach School Board member and the district's superintendent shouted at one another over the member's repeated use of the term "porn peddlers" in reference to the unwillingness of administrators and teachers to remove certain books from school libraries. During the shouting, two children in attendance were escorted out of the meeting.