Transparency News, 1/19/21


 January 19, 2021
There was no issue of the newsletter yesterday, Jan. 18.


state & local news stories

The House subcommittee that hears FOIA bills met this morning and heard 4 bills, approving three and sending a fourth to the FOIA Council.

The first was HB 1931, which expands the number of times and opportunities an individual member can call into a meeting instead of meeting face-to-face with the public or his/her colleagues. While acknowledging there's room for some flexibility, VCOG has consistently stated its opposition to broad expansion. Today, I asked that one or the other of the two proposed expansions be stricken, but the committee voted unanimously to advance the bill intact.

As I said today and will continue to say, the argument that this is somehow a women's parity bill is just not true. There is NO evidence that the call-in limitation is what keeps women from running for office (plus, more women are currently in office than ever before), nor that public bodies in other states with looser call-in rules have more women in office than Virginia.

The next bill was HB 2025, which expands the exemption for mailing lists of people who sign up for email blasts from their government to also include blasts from members of a public body. VCOG was OK with that part.

Unfortunately a provision was added back in the fall at the FOIA Council that changed the current opt-out system -- that's been in the law for more than 15 years and is consistent with the overall FOIA policy in 2.2-3700 -- to opt-in.

Luckily, the patron of HB 2025 (Del. Wendy Gooditis) graciously agreed to take that provision out, and even Loudoun County, who wanted the original idea, agreed too.

Unluckily, Del. Marcus Simon, a member of the subcommittee and vice chair of the FOIA Council, said not only that he would not vote for the amendment (makes sense, since he voted for it at the FOIA Council) but that the amendment should be rejected by everyone. Dismissing my concerns with flipping FOIA's presumption, he also implied that stakeholders who participate in the FOIA Council process shouldn't try to undo FOIA Council recommendations. That's not how the council has worked in the 20+ years of its existence. But his argument carried the day and the bill moved on to the full committee with the opt-in provision still in it.

We had more luck with HB 2004, which is Del. Chris Hurst's bill to provide some access to criminal investigative files that are not ongoing. Hurst fielded questions on how much it would cost agencies (Hurst: costs of production are charged to the requester); whether confidential information would be revealed in a court proceeding (Hurst: judges review records in chambers frequently. Alan Gernhardt of the FOIA Council also noted that the Supreme Court has recommended filing disputed documents under seal).

I commented in favor of the bill, noting the current exemption has been used for years to thwart any kind of oversight of the police or prosecutors while also interfering with law enforcement's ability to demonstrate what they do right.

The bill passed on a party-line vote, 6-3.

Finally, HB 1997 was sent to the FOIA Council for further study, though VCOG would prefer that it had been defeated outright.

The original bill would have increased the 40+ year provision defining a meeting as three or more members of a public body talking about public business (meaning, two people can get together without triggering FOIA). The Fairfax School Board, through one of its members, feels this is too constraining, especially during the pandemic emergency declaration, and wants the definition changed from three to four (meaning, three people could talk without triggering FOIA).

The patron offered an amendment that limited the change in size to pandemic emergency times, but we opposed both the original and the amendment. The definition has existed for years without incident; scores of boards across the Commonwealth figured out a way to stay within the current definition, even during the emergency; and allowing three members of a five-member board (Arlington, Chesterfield, Henrico, James City and Roanoke Counties -- that's nearly 1 million people -- all have five-member boards) could meet and conduct business privately without triggering FOIA.

As mentioned, the bill will go to the FOIA Council.

The bills heard in subcommittee today will be heard by the full committee on Thursday.

Next up, today, the full General Laws committee will meet at 1:00, where they will hear HB 2000 (Del. Danica Roem), a bill offering a way to improve FOIA's fee-charging structure, and HB 2196 (Del. Mike Mullin), a bill to provide access to completed investigatory files on police misconduct/discipline. We support both bills, though Roem has indicated she would like the FOIA Council to study her bill, and we agree.

And finally, 7 a.m. tomorrow, a House Education Committee subcommittee will hear HB 2120 (Del. Mark Keam), which seeks to impose many needed transparency measures on university governing boards.

I'll be there to speak, but IT'S IMPORTANT FOR MEMBERS OF THE PUBLIC TO BE INVOLVED. I am often the only one speaking on the opposite side of local and state government employees and organizations, and while I might be persuasive here and there, it is very easy for legislators (a) to get tired of me always nagging at them, and (b) to think no one else cares.

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Nearly six years after its undercover investigation of the Natural Bridge Zoo revealed widespread cases of animal abuse and neglect, the Humane Society of the United States said Friday that federal regulators have imposed a $41,500 fine. The fine was assessed in August 2019, but the humane society said it only recently learned of it through a Freedom of Information Act request. “By USDA standards, it’s a pretty good-sized fine,” said Debbie Leahy, the group’s senior strategist for captive wildlife. “But we don’t think it’s enough.”
The Roanoke Times

The reading gap is widening in Prince William County elementary schools, according to new testing data obtained by InsideNoVa through a Freedom of Information Act request. The fall 2020 semester saw a dramatic increase in elementary school students failing to meet the Phonological Awareness Literacy Screening (PALS), with the number failing to reach target benchmarks over the fall 2019 semester increasing by 16 percentage points and all but three of 59 elementary schools seeing their numbers rising.