Transparency News, 3/16/21

It's Sunshine Week and VCOG's making the most of working from home with a series of short podcasts to update you on the recently concluded General Assembly. We'll look at how VCOG approaches each session, reviews the bills we followed that did and didn't pass, and we'll take a up-close look at one bill that went our way, and one that did not.
Today's episode: The bills VCOG followed that passed

The chief state investigator who substantiated violations by the Virginia Parole Board filed a motion Monday for an expedited hearing in her bid to be granted whistleblower protection status, citing “significant retaliatory actions” against her and public comments from the governor’s office since she turned over information to state legislators. The motion filed in Richmond Circuit Court cites remarks made last week by Clark Mercer, Gov. Ralph Northam’s chief of staff, as one reason why a hearing must be held sooner rather than later on Inspector General investigator Jennifer A. Moschetti’s request for a judge to declare her a whistleblower under state law. At the governor’s March 9 news conference announcing updates on COVID-19, Mercer “attacked the character of [Moschetti] as biased while hailing the parole board as brave,” said Moschetti’s attorney, Timothy Anderson, in the motion. “The governor is using its bully pulpit to malign the petitioner and publicly discredit her work which is directly contradicted [by reports on her work performance].”
Richmond Times-Dispatch
Jennifer Moschetti, an investigator in the Office of the Inspector General, who was put on paid leave earlier this month amid an investigation into the Parole Board leaks, also received a positive performance evaluation from her agency in October. That review, which noted Moschetti was a fairly recent hire who had been with the agency for less than a year, praised her “comprehensive and exhaustive reports.” Moschetti’s personnel records show Westfall signed off on her $2,000 bonus granted in January. The paperwork for that bonus specifically mentioned her work on the Parole Board cases.
Virginia Mercury

Jack Kennedy was so far ahead of the curve some 16 years ago, when he started live streaming court hearings to the public, that no one else in Virginia has caught up. A lot’s happened since then: smartphones, tablets, touchscreens; thermostats, doorbells and virtual assistants you can control from thousands of miles away. Still, the courthouse in Wise County, home to about 38,000 in the western tip of Virginia and pressed against Kentucky, appears to have been the only one to have live streamed court hearings to the public. Not even the pandemic has changed that. Despite 23 orders from the state Supreme Court addressing how and what court officials can and must do during the pandemic-induced “judicial emergency,” none of the 120 circuit courts in Virginia appear to have availed themselves of video or audio feeds that would allow the public to see how their government is working without having to physically visit courthouses. Plus, state law and court rules forbid clerks like Kennedy from letting the public remotely access any public court documents in case files.
The Virginian-Pilot

Three Pound Town Council members who voted March 2 to relieve Tim McAfee as town attorney and the town are being sued for $1.38 million for alleged breach of contract and interference in attorney-client relationship. McAfee’s appointed replacement, Greg Baker, also resigned Monday. McAfee, through counsel Richard Kennedy, filed suit Friday in Wise County Circuit Court against councilmembers Clifton Cauthorne, Marley Green, Susan Downs-Freeman and against the town. McAfee, in the suit, cited Cauthorne’s testimony in a 2020 Virginia Freedom of Information Act complaint filed by David Gent against former town clerk-treasurer Jessica Adams. Gent claimed that Adams failed to post notice of a September 2020 council committee meeting on the town’s website and in a local newspaper. Claiming that Cauthorne refused to answer his questions, McAfee also claimed that Mayor Stacey Carson — designated as the town’s Freedom of Information Act officer — refused to answer questions about “Baker’s conviction for solicitation of prostitution, his removal as a judge for failing to be truthful to the Judiciary Committee, his suspension of his law license for acts of dishonesty, the existence of Protective Orders for alleged domestic abuse and the Dickenson County’s Department of Social Services Contract that prohibited Baker from appearing in court on their behalf.”
Times News

It’s a playground for the curious. Norfolk Open Data is a portal that lets you look through all different types of city information. By law, you’ve had access to this information for a long time, but local governments haven’t always had the resources to make the information easy to find. Back in 2018, when Norfolk first launched its open data portal, only four datasets were available.  Today, you can find dozens and dozens of them. Do you want to see what parts of the city are clean and what parts aren’t? Click on the "Litter Index" to see a full score sheet dating back 10 years. Interested in public art? You just have to click on the Public Art Map to see where all of it is located around town. They even separate it by category if you’re looking for something specific.


It wasn’t long ago when a “public meeting” of the city council or state legislature meant the general public could show up to watch and, quite often, speak about proposals and perceived problems. The coronavirus pandemic has put an end to that in many places, perhaps permanently altering the way the American public interacts with government. A year after COVID-19 triggered government shutdowns and crowd limitations, more public bodies than ever are livestreaming their meetings for anyone to watch from a computer, television or smartphone. But in some cases, it’s become harder for people to actually talk with their elected officials. An Associated Press survey of state legislatures found that most no longer allow people inside their chambers to observe, and some still do not allow people to testify remotely at committee hearings where legislation is shaped. At some city council meetings convened remotely, the only avenue for public input is a written comment.
Associated Press

Citing long-standing concerns about the federal government’s handling of public records requests, the Reporters Committee for Freedom of the Press and the Knight First Amendment Institute at Columbia University are urging U.S. Attorney General Merrick Garland to follow through on the Biden administration’s stated commitment to transparency and take swift and decisive action to ensure compliance with the Freedom of Information Act.
Reporters Committee for Freedom of the Press

More than two months after a U.S. Capitol Police officer shot and killed Ashli Babbitt during the Jan. 6 riot, the circumstances surrounding the shooting and the name of the officer who pulled the trigger remain shrouded in mystery. Babbitt, a 35-year-old Air Force veteran, was unarmed when she was gunned down outside the House chamber. She was the only rioter killed by Capitol Police and the only person killed by gunfire that day. Nearly 10 weeks later, authorities have not released the name of the officer who fired his weapon or disclosed why the officer opened fire. There is no federal standard for releasing the names of officers involved in a fatal shooting.
The Washington Times

Capitol Police officer Brian Sicknick died the day after the Capitol insurrection. That evening, the Capitol Police released a statement saying he had died from injuries sustained in the riot. But the exact cause of Sicknick’s death remains unclear. On March 2, Sen. Chuck Grassley, R-Iowa, asked FBI Director Christopher Wray if a cause of death had been determined and if there was a homicide investigation. Wray said there is an active investigation into Sicknick’s death, but the bureau was “not at a point where we can disclose or confirm the cause of death.” He did not specify whether it was a homicide investigation.

To kick off Sunshine Week, House Oversight and Reform Committee Chair Carolyn Maloney (D-N.Y.) is introducing new legislation designed to update a decades-old presidential records law.  The bill, called the Presidential Records Preservation Act, would require the president, vice president and White House senior officials to “make and preserve” records that track the president’s official activities. The bill would also require White House officials to establish specific records management controls to capture and preserve electronic records, and to make them easily searchable and accessible. Several laws on managing federal and presidential records already exist. But Maloney said her bill would bring the Presidential Records Act — a 1978 act that governs the legal ownership structure of official records from previous and current administrations — in line with another law — the Federal Records Act.
Federal News Network


The day after the 2021 inauguration, Sen. Chris Murphy of Connecticut took to Twitter to declare: “Biden is making transparency cool again.” This was a head-scratcher for many journalists and transparency advocates. Freedom of Information—the concept that government documents belong to and must be accessible to the people—has never not been cool. Using federal and local public records laws, a single individual can uncover everything from war crimes to health code violations at the local taqueria. How awesome is that? OK, now that we’ve put that down in writing we realize that the line between “cool” and “nerdy” might be a little blurry. But you know what definitely is not cool? Denying the public’s right to know. In fact, it suuucks. Since 2015, The Foilies have served as an annual opportunity to name-and-shame the uncoolest government agencies and officials who have stood in the way of public access. We publish this rogues gallery as a faux awards program during Sunshine Week (March 14-20, 2021), the annual celebration of open government organized by the News Leaders Association.

We need a fundamental change in how the government thinks about its public records responsibilities. Too often, government conceals data out of concern that it will lead to backlash. But that’s the wrong mindset. Government should be freely giving as much data as it reasonably can, so that citizens can offer feedback to their elected representatives. The end result would be a more effective government, one that is more responsive to its people, thanks to transparency.
Michael LaFaive and Steve Delie, The Hill

News organizations aren’t alone in their request for public records. Private citizens face the same challenges, without the training and institutional support to fight for access. Every community deserves watchdogs who pay attention to how government operates, how money is being spent and whether business is being conducted fairly. No one wins when government business is conducted in the dark, without opportunity for review. This isn’t a journalism issue; it’s a democracy issue.
Lansing State Journal

There have been recent attempts in several states – including Virginia – to change the law so that public notices are no longer required to be published in newspapers. In fact, the Prince William Board of County Supervisors has endorsed those efforts in its legislative agenda the past two years. The motivation for eliminating the newspaper publication requirement is typically from one of two sources: Sometimes it comes from a legislator who doesn’t agree with the editorial position of the newspaper and may seek to remove public notices as a way to get back at them. And sometimes, it is a sincere approach to save the city or county money. While saving money may make sense at first blush, when you weigh the impact on the community – losing transparency and the ability to keep citizens informed – the costs are minimal and worth the investment.
Dean Ridings, Inside NoVa