Transparency News, 2/16/2022


February 16, 2022

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state & local news stories


VCOG's annual
bill chart


Less than a year after a new Freedom of Information Act law expanded public access to police investigative files in Virginia, Delegate Rob Bell has sponsored a bill that would reverse the reform, citing concern for victims’ privacy. “There were immediate efforts to access what I would call very private information,” Bell says. He described a TV producer requesting access to a case file from the parents of murdered UVA student Hannah Graham, soon after the new law went into effect in July 2021. When the Grahams refused, Bell says the producer sought the complete investigative file in Graham’s murder through a FOIA request. Bell’s bill passed through the House General Laws Committee last week on a party-line vote,  helped by support from the parents of Graham and Morgan Harrington. It has alarmed family members of another woman, Molly Meghan Miller, whose 2017 death was investigated in Charlottesville and ruled a suicide.  Hicks and Goodbody’s attorney, Matthew Hardin, the former Greene County commonwealth’s attorney, spoke against the bill at a subcommittee hearing on February 8. Hardin, a Republican, says the current FOIA law already grants an exemption to police allowing them to withhold crime scene photos and other personal information about victims and witnesses. He points out that Bell’s bill’s reference to immediate family doesn’t fit with a lot of Virginia families, which may include same-sex parents or step-parents. 
C-ville Weekly
(see op-ed below)

Following a Loudoun judge’s recusal from a pair of cases seeking the recall of two School Board members earlier this month, the remaining four Loudoun County Circuit Court Judges on Monday all signed orders recusing themselves from the cases, according to court records. Chief Judge Douglas Fleming Jr., and Judges Stephen Sincavage, James Fisher and James Plowman Jr. signed the orders. The orders were being directed to the Supreme Court of Virginia so that another judge may be designated to hear the cases. Petitioners from the Sterling and Algonkian districts are seeking the removal of School Board members Brenda Sheridan (Sterling District) and Atoosa Reaser (Algonkian District), respectively.
Loudoun Times-Mirror

stories of national interest

President Biden has ordered visitor logs from the White House during President Donald Trump’s tenure to be turned over to the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol. The former president claimed the logs were subject to executive privilege. In a letter Tuesday, a White House lawyer rejected the claim, saying the National Archives should provide the records within 15 days to the House committee. “The President has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified, as to these records and portions of records,” White House counsel Dana Remus said in the letter.
The Washington Post

Once someone legally obtains documents from a government entity through a public records request, the government simply cannot demand to have them returned just because it screwed up when it fulfilled the request. That unalterable fact hasn't stopped government agencies from trying (or even [temporarily] succeeding). The NYPD botched its handling of a public records request twice, handing out information it didn't want to disclose to facial recognition researchers on two separate occasions. Both times, it tried to get a court to help it demand the mistakenly released information be returned. One request was granted (then rescinded). The second time the NYPD screwed up it didn't even bother to see if a court would oblige it twice. US Citizenship and Immigration Services (USCIS) is being sued for trying to do exactly this same thing. It fulfilled FOIA requests pertaining to Hoppock Law Firm clients, sending the firm the "alien files" compiled by the agency. At the time, the USCIS told Hoppock Law Firm it was aware it was over-fulfilling the request. Seven months later, USCIS had a new Director of FOIA Operations. And Hoppock Law had a new letter from USCIS demanding the "return" of information the agency had already voluntarily released.
Tech Dirt

D.C. Mayor Muriel Bowser’s administration uses the encrypted messaging app WhatsApp widely across the city government, nine current and former staffers or those within the mayor’s circle tell Axios. Why it matters: WhatsApp can make it easier to shield official communications from Freedom of Information Act requests, and it flies in the face of Bowser’s first mayoral campaign pledge to boost transparency in government. Such messages can be more easily kept secret or destroyed. The app has a feature that can be turned on to delete conversations within a period of time. “We communicate using a variety of methods to accomplish our work in an expeditious manner,” the mayor’s office said in a one-sentence statement to Axios. The big picture: Politicians nationwide have landed in hot water over the use of similar platforms. Maryland Gov. Larry Hogan has used Wickr, an app that destroyed messages within 24 hours, the Washington Post reported in December. Government ethics advocates discourage the use of such apps unless safeguards are in place to retain communications for FOIA requests. The D.C. Open Government Coalition has called on the Bowser administration to end the use of WhatsApp.
Axios Washington D.C.

editorials & columns

"Taxpayers who request information would risk being named in a lawsuit by anyone who prefers secrecy over transparency."

Last year, Virginia’s legislature took action to bring Virginia’s Freedom of Information Act in line with federal law by expanding access to law enforcement records relating to closed police investigations. With the recent elections and the change in composition of the legislature, a new bill seeks to reverse those improvements and make it harder to request records. Worse, the proposed HB734 would weaponize Virginia’s courts against those who seek information, with the proposed bills allowing suits for injunctions prohibiting disclosure of information. If this bill becomes law, it would mean less access for citizens and the press to government records. Taxpayers who request information would risk being named in a lawsuit by anyone who prefers secrecy over transparency. Journalists would be unable to keep the public informed about the activities of law enforcement. Victims of crime and their families who seek answers from the agencies that are duty-bound to protect them would be re-victimized because the bill assumes all individuals share the same feelings about the records of crimes committed against them and defines the phrase “immediate family” to exclude the members of many of Virginia’s non-traditional family structures.
Matthew Hardin, The Virginian-Pilot

Police body-worn camera footage recently released by the city of Minneapolis shows a SWAT team officer with the Minneapolis Police Department fatally shooting 22-year-old Amir Locke 10 seconds into executing a no-knock warrant at Locke’s apartment in the early morning hours of Feb. 2. In addition, the city released a still-frame of the video showing Locke awakening from the couch he was sleeping on when the officers entered the apartment, holding a pistol facing the floor. The slowed-down 14-second clip and still-frame were released voluntarily by the city pursuant to a state law titled “Comprehensive Law Enforcement Data, Public Benefit Data.” Providing public access to government records promotes important interests, like accountability for officials and transparency and trust for citizens. There is little question that police bodycam footage should be a public record, and in many states it is subject to disclosure. However, extensive exemptions, like those for active criminal investigations in Minnesota, often obscure these records from the public past the point where the exemption is relevant, like when a plea has already been entered.
Gillian Vernick, Reporters Committee for Freedom of the Press