Transparency News, 3/19/20


March 19, 2020
There's at least one thing that hasn't been canceled due to COVID-19......SUNSHINE WEEK!!



state & local news stories
“We don’t want people to come out. They can see it at home and we can collect comments online.”
While essential city services, such as trash pickup and utility services, continue amid the COVID-19 outbreak, one governmental function is more difficult to carry out: council meetings. On Tuesday, Gov. Ralph Northam, (D-Virginia), announced the state would abide by federal guidelines, encouraging all gatherings to be 10 people or less as the pandemic continues. Councils across Hampton Roads would violate that advisement when it comes the attendance of members and essential city staff alone — for instance the seven-member Portsmouth City Council also has its city manager, attorney and clerk, and sergeant-at-arms at all their meetings. While some may point to modern technology as an easy fix, Virginia Beach Vice Mayor Jim Wood told his colleagues it’s not.

Black trash bags covered seats, separating attendees. Residents waited at home in a video chatroom to address elected officials. The methods deployed by the Charlottesville City Council on Monday illustrate a pressing challenge for localities: how to balance safety protocols amid a pandemic while conducting critical public business with ample citizen participation. While awaiting guidance from state leaders, local governments are determining how to strike that balance without running aground of open meeting laws that experts say were written without a pandemic in mind.
Richmond Times-Dispatch

Some things cannot be halted, even with the effects of a global pandemic being felt everywhere. Preparing a school operating budget for the coming fiscal year is one of them. However, what is normally a large-scale presentation by Rockingham County Public Schools Superintendent Oskar Scheikl, the School Board, and members of the community, will look quite different this year. Rockingham County Public Schools, which will not hold class until at least March 30, continues to adjust to the COVID-19 pandemic. The School Board will meet as scheduled on Monday. However, the agenda has been pared down to only items that must be approved immediately, such as purchase orders and personnel hiring, Scheikl said. Over the weekend, Scheikl said, he plans to record his presentation and present it to the board and the community via the school division’s website. “We don’t want people to come out,” he said. “They can see it at home and we can collect comments online.” Normally, Scheikl would also present his budget to the Board of Supervisors in person, but will have supervisors view it remotely and approve it with a vote at another time.
Daily News Record

While the Warren County Board of Supervisors unanimously voted Tuesday to not renew County Administrator Doug Stanley’s contract, the door remains open to the possibility of him remaining in the position. The motion to not renew his contract, which expires June 30, states that Stanley will continue being employed “at-will” as county administrator with his current salary when that date comes. Archie Fox was the only supervisor who commented on the decision, saying: “I’d like to see his contract renewed.” All other supervisors declined to discuss the matter.
The Northern Virginia Daily
stories of national interest

At a recent Sunshine Week1 event, a Department of Justice spokesperson claimed that FOIA applicants are now quicker to litigate, then blamed overly-litigious requesters for straining the workloads of FOIA professionals and bogging down ordinary citizens’ FOIA requests. The Transactional Records Access Clearinghouse at Syracuse University (TRAC) finds the underlying claim to be unsubstantiated and counterfactual. In TRAC’s recent empirical study comparing FOIA lawsuits in 2015 and 2019, TRAC found that not only were requesters not jumping into court immediately, requesters were actually waiting on average six months—a full month longer than they had five years ago—before filing a FOIA lawsuit. The statute provides that agencies need to respond within 20 business days. Additionally, the study documented that the increase in FOIA lawsuits over the five-year period was due to FOIA officials’ failure to respond to requests in a timely manner as required by law.
The FOIA Project

The coronavirus is disrupting the nation’s already backlogged Freedom of Information Act process. The FBI announced on Tuesday that, “due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information / Privacy Act requests,” nor are they “sending out electronic responses” through their online portal until further notice. FOIA requests can still be mailed in. The FBI's FOIA page apologizes for the "inconvenience." Katie Townsend, the legal director for the Reporters Committee for the Freedom of the Press, called the bureau's move "absurd." "Especially at times like this, government transparency is essential to public trust, and agencies should be working to provide timely public access to records and information through FOIA," she said in a tweet. 
Washington Examiner

Texas Gov. Greg Abbott suspended a part of the Texas Open Meetings Act — which guarantees the public can access and participate in government meetings — on Monday in the midst of the coronavirus pandemic. All sections of the Texas Open Meetings Act remain in place except for the requirement of a physical gathering space for people to watch the meeting and ask questions. Virtual meetings were always an option, but a public space to watch or listen to the meeting was required. This suspension nixes that.
Texas Tribune

Hours after Chicago Mayor Lori Lightfoot’s administration said it would automatically reject all Freedom of Information Act requests submitted by the public due to reductions in city services caused by the coronavirus emergency, the mayor reversed course and said she would follow the Illinois attorney general’s guidance on the issue. “Due to the unprecedented nature of the COVID-19 pandemic, the city of Chicago is reducing nonessential services and requiring staff to work from home where possible to protect their health and safety — all while working to ensure operational continuity for our critical city services,” Lightfoot’s administration said in a statement. “That said, FOIA remains an important public service, which is why Mayor Lightfoot has directed her administration to ensure that all FOIA requests are reviewed and considered in the coming days, with each response evaluated on a case-by-case basis.”
Chicago Tribune
"The study documented that the increase in FOIA lawsuits over the five-year period was due to FOIA officials’ failure to respond to requests in a timely manner as required by law."


editorials & columns
"This is not a carte blanche. This is not an opportunity or invitation to ram through business and ideas away from the prying eyes of the public."
Notwithstanding the governor’s executive order Tuesday directing state and local officials to enforce a ban on 10 or more people gathering in public, the General Assembly can meet only in public — in the plain-view sense of the word. The Constitution and state law require it, with the former making a narrow exception for the legislature not convening because of “an enemy attack upon the soil of Virginia.” The open meetings law prohibits the legislature from convening via electronic hookup, such as telephone and television. There is an exception for offseason meetings of General Assembly panels. Members can participate by telephone — only if the meeting has been advertised in advance and present is the minimum number of members required for business to proceed.
Jeff Schapiro, Richmond Times-Dispatch

Albemarle County made the right call in delaying budget action until May 14. Charlottesville should consider something similar. County Executive Jeff Richardson said the delay will give officials time to further evaluate any fiscal impacts from the current health emergency and to extend public comment opportunities. The COVID-19 crisis has disrupted the public’s ability to review, and comment on, budget plans for next year. Without adequate public involvement, the budget process would be undemocratic and the budget results subject to added suspicion and resentment. Public input has been dislocated in two ways. First is the obvious issue of distraction and shift in priorities. When residents are worried about basics such as maintaining their health and having enough to eat in case of a quarantine, they don’t have time or energy to give to budget analysis. Additionally, some opportunities for the public to learn about or comment on the budget have been cancelled or restricted. Ever-tightening rules about social distancing and the numbers of people allowed at gatherings have curtailed meetings in both Albemarle and Charlottesville.
The Daily Progress

We need to allow for flexibility as they figure out how to achieve the right balance between serving the public by keeping meetings open and accessible and serving the public by protecting our health and the health of those we will later encounter. This is not a carte blanche. This is not an opportunity or invitation to ram through business and ideas away from the prying eyes of the public. In fact, the counterbalance to flexibility is the public body’s obligation to be actually MORE transparent.
Megan Rhyne, Virginia Mercury

The fewer questions that are asked of public officials, the less accountable they are to constituents. An editor once explained FOIA to me in a way that was very empowering, and I’ll pass it along to you, because you deserve to be similarly empowered to wield FOIA as a tool of government transparency. Here’s the thing: “Asking the question” is protected under FOIA. Utilizing FOIA does not need to be adversarial, nor is it only valuable when you suspect a public body of wrongdoing. FOIA can simply help citizens be better informed about how public institutions — such as local schools, nonprofits, law enforcement agencies, town councils and the like — operate on a daily basis. What can you learn using FOIA? A lot!
Bristol Herald Courier