Transparency News 6/25/19

Tuesday
June 25, 2019

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state & local news stories

"The EDA never 'satisfactorily responded' to FOIA requests, likely because the authority does not know how much it owes the town."

Even though the [Virginia Beach municipal building] shooter, DeWayne Craddock, died in a gunbattle with police on May 31, his records and personal information is still protected by the Freedom of Information Act’s (FOIA) Personnel Records Exemption.  Deputy city attorney Roderick Ingram said there are some exemptions with conditions that would invalidate the exemption — the death of an employee is no such situation. “For example, the law says we can withhold documents about contract negotiations until the contract is signed,” he said. “Once the contract is signed, then the records can be released.” According to the city’s Open Data Portal, there are at least 16 official FOIA requests for information pertaining to the nine-year public utilities engineer with more requests “pouring in,” Ingram said. Ingram also said although Martingayle’s email “regards public records,” it was not an official FOIA request. Had Martingayle submitted a formal FOIA request it would have garnered a response within five business days as prescribed by the law saying, “we are going to withhold those records pursuant to the personnel records exemption,” Ingram said. However, the ability to waive the exemption is within the discretion of the city, Ingram noted.
Southside Daily
(NOTE: FOIA does not distinguish between "formal" and "informal" requests.)

James City County will spend $102,328 for a Freedom of Information Act online request system, which is intended to simplify and expedite requests for public information. Using the new system, people will be able to make Freedom of Information Act requests, monitor data collection by county staff, pay for the request and receive the request all at one online portal, according to a county memo. Staff expects the system will be rolled out for public use in three to four months. People still will be able to submit information requests by phone, mail, email and fax, Ania Eckhardt, the county's FOIA officer, said. The county selected GovQA as the vendor for the online open records system. Several other Virginia municipalities also utilize GovQA’s system.
The Virginia Gazette

A federal judge in Charlottesville will reconsider an earlier decision allowing a defamation suit to proceed against InfoWars and other far-right entities. Brennan Gilmore, an activist and former Foreign Service officer, sued Alex Jones, InfoWars and several others in March 2018 for defamation. After Gilmore witnessed and filmed the Aug. 12, 2017, car attack that killed counterprotester Heather Heyer, the defendants started spreading conspiracies about him, leading to death threats against him and his family, according to the suit.
The Daily Progress

The Town of Front Royal has filed a $3 million civil lawsuit against the Front Royal-Warren County Economic Development Authority and its former director Jennifer McDonald in attempts to recover overpayments the town made to the EDA. In a complaint filed Friday in Circuit Court, Town Attorney Doug Napier states that in May 2018 the town learned it had been overbilled an unknown amount by the EDA for projects including the Front Royal Police Department’s headquarters, Leach Run Parkway and the West Main Street extension. Napier states the town is owed “at least hundreds of thousands of dollars" and that the town “diligently sought” to learn exactly how much it overpaid through multiple Freedom of Information Act requests. While McDonald was still employed at the EDA, Napier states the authority responded to the FOIA requests “with false, non-original, or non-responsive documents, apparently furnished from McDonald.” In 2019, Napier states that the EDA never “satisfactorily responded” to FOIA requests, likely because the authority does not know how much it owes the town or because it does not have money to pay back the town.
The Northern Virginia Daily

stories of national interest

The Supreme Court limited public and media access to government records Monday by expanding a federal law's definition of what can be deemed confidential. At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harmif publicized. The high court adopted the broader definition. Associate Justice Neil Gorsuch wrote the 6-3 decision, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.
USA Today

The U.S. Supreme Court ordered documents unsealed Monday in a death penalty case out of Alabama after a motion was filed by the Reporters Committee for Freedom of the Press and NPR. The blacked-out information, a rarity for the Supreme Court, involves the drugs and protocol Alabama uses for executions. The filings were redacted before the execution of convicted murderer Christopher Price earlier this month. The deletions were done at the insistence of the state of Alabama, the reporters committee noted. The Supreme Court has found itself mired in bitter debates about the death penalty, but it previously hasn't hidden those disputes from the public.
NPR

Chicago Police released investigative files and nearly 70 hours of video Monday related to the case of Empire actor Jussie Smollett. Included is a video that shows an encounter with police where Smollett is still wearing a white rope around his neck.
Newsweek
 

editorials & columns

“Secrecy is poison to democracy.”

Arkansas Supreme Court Justice Josephine Linker Hart last week perfectly summed up our own feelings on why Freedom of Information laws are so important: “Secrecy is poison to democracy.” Justice Hart wrote the dissenting opinion in the court’s split opinion in favor of the city of Fort Smith in the 2017 Freedom of Information Act case alleging misuse of public meeting requirements. The court ultimately sent the case back to the circuit court because, as Justice Shawn A. Womack writes, “the definition of ‘public meetings’ in the FOIA does not provide the same affirmative textual clarity to support a definitive conclusion that emails can constitute a public meeting, as the majority has held here.” Robert Steinbuch, one of the co-authors of the Arkansas Freedom of Information Act textbook, is even still scratching his head over this one. “What the court’s ruling gets wrong is in determining whether a substantive exchange took place,” Steinbuch said. 
Times Record

In Food Marketing Institute v. Argus Leader Media, the Supreme Court held today that the Freedom of Information Act allows a federal agency to withhold from disclosure records submitted by a private entity when the submitter keeps the records secret and the agency promises to keep the records from disclosure. The decision is significant in two regards. First, it will broaden the reach of Exemption 4, making it easier for private records to be kept from disclosure. Food Marketing Institute will benefit businesses in regulated industries who are frequently asked or required to provide information to government agencies that is confidential but does not meet the definition of “trade secret” that federal courts apply to Exemption 4. But it will frustrate news media, watchdogs and competitors who will be less likely to have their FOIA requests met. Notably, the majority never explained that the Argus Leader submitted its FOIA request as part of its investigation into SNAP-related fraud. That investigation will now have to proceed without access to the SNAP data. The decision’s influence will vary among administrations and even among agencies within the same administration, depending on the extent to which agencies provide assurances that they will keep submitted records private. But it will narrow access to information the government holds.
Mark Fenster, SCOTUSblog