Transparency News, 1/21/2023


January 21, 2023

It's a special Saturday issue of the VCOG newsletter!
Yesterday, the email distribution system was down.
The day before that, I thought I scheduled the newsletter to send, but apparently my coffee hadn't kicked in and I found it sitting in a draft folder.
Thanks for your patience with The Human's error.


Virginia access news

VCOG's annual legislative chart of FOIA and access-related bills

Friday morning, a House subcommittee voted to send HB 1880 to the FOIA Council for study. Even though it's not really a FOIA bill, and even though I alerted the FOIA Council to the proposal back in October -- and engaged with local government lawyers on the council about it -- the subcommittee was sure there were so many questions that needed to be properly vetted. 

So what would HB 1880 have done? In the code section allowing localities to retain counsel to defend claims made against them, HB 1880 would have required the localities to keep a record of how much they paid and that record would have to be available under FOIA if someone asked for it.

Opposition included arguments that it would make confidential settlements public (it wouldn't, just the amount paid); that there was some obligation to proactively disclose it (nope, it's upon request); that it would encourage frivolous claims (there's a 30-year-old Supreme Court case that says the amount is public and there's no evidence of that); that there's nothing to say how long the record has to be kept (the Library of Virginia publishes record retention schedules that should be consulted); that ERISA (???); and that private insurers would be required to divulge the claims they settled under authority ceded to them (the locality has to create the record, and hopefully the private insurers are telling them how much they've paid!).

The bill was prompted by a few creative local government lawyers who have settled claims through an online portal and then when asked for a canceled check, accounting entry or anything showing how much was paid, they would say, "Sorry, I don't have a record of that."

But, back to the FOIA Council we go.

* * *

On a summer's day in 2006, inside an apartment not far from Virginia's old death chamber, an 82-year-old man handed over a briefcase to an archivist. The bag held four execution recordings so rare, similar tapes from another state had been released just once before in history. When executions take place, only a few people are permitted to attend as witnesses. Since prisons forbid even those journalists, lawyers and family members from recording audio or images, virtually no physical evidence from their vantage point exists from any state. But they're not the only ones watching. Prison employees also see what happens in the death chamber – and they sometimes tape it.

A Spotsylvania County School Board member’s attempt to obtain a protective order against one of her harshest critics was denied Wednesday by a judge. Dawn Shelley was seeking legal restraint against county resident Roy Searles, who Shelley said has been harassing her through emails and other methods. She had previously obtained a preliminary order that called for Searles to stay away from her, including attending School Board meetings, and was seeking a more permanent order. Judge Jane Reynolds ruled Wednesday in Spotsylvania General District Court that the issues raised by Shelley do not merit a protective order. She said some of Shelley’s complaints would be more suited to possible criminal charges, and pointed out there is no claim that Searles has actually threatened Shelley. In her complaint, Shelley wrote that Searles has been bombarding her with emails that she said were, at least in part, meant to intimidate her. She said the email frequency increased last year, and said Searles has screamed at her during School Board meetings.
The Free Lance Star

As inmates, grieving families, city officials and advocates have escalated concerns about safety conditions inside the Richmond City Jail, the state entity responsible for overseeing local jails has provided limited information about its response. When CBS 6 asked the board's executive director Ryan McCord how the board would respond to a formal request to investigate the jail in December, McCord said the board had "no comment." CBS 6 then submitted a request under the Freedom of Information Act (FOIA) for communication records among the board related to the Richmond Jail. However, McCord said the board withheld about 125 records, citing two codes that exclude public agencies from mandatory disclosure. One exemption applies to documents containing information about imprisoned people. McCord cited another exemption that allows certain public bodies, such as the Governor's Office, General Assembly, and Department of Corrections, to withhold records. CBS 6 asked which specific public body the cited exemption applies to and awaits a response.

Fairfax County Commonwealth Attorney Steve Descano is using an app called Signal which deletes text messages like Snapchat, 7News confirmed. Descano is using the Signal app to avoid written communication from being obtained by the public and the press as allowed under the Freedom of Information Act, according to sources close to Descano.

A Virginia Beach judge on Friday will consider whether to allow news media to attend a detention hearing for two juveniles charged with murder in a November homicide. Juveniles are not named in court proceedings unless they are charged as adults. The defendants, ages 15 and 17, both face felony murder, attempted robbery and other charges in connection with the Nov. 5 fatal shooting of 21-year-old Richard Cantey.
The Virginian-Pilot

It’s only been a couple weeks since the new Virginia Beach City Council members were sworn in, but differences between them and the old guard are already showing. At a meeting Tuesday, several new members tried to block a plan initiated by Mayor Bobby Dyer and approved by the previous council late last year to collect public input on the city’s election system. But in a 6-5 vote, the attempt failed and the city will move forward with public input by contracting a consultant and launching an advertising campaign at a cost of more than $300,000.
The Virginian-Pilot