FOIA Friday: What Virginia officials withheld or disclosed, June 2–9, 2023
One of the less noticed features of the Virginia Way is the long-running tendency of the commonwealth’s leaders to conduct their decision-making behind closed doors. While the Virginia Freedom of Information Act presumes all government business is by default public and requires officials to justify why exceptions should be made, too many Virginia leaders in practice take the opposite stance, acting as if records are by default private and the public must prove they should be handled otherwise.
In this feature, we aim to highlight the frequency with which officials around Virginia are resisting public access to records on issues large and small — and note instances when the release of information under FOIA gave the public insight into how government bodies are operating.
Judge tosses FOIA case after Chesterfield argues Va. police departments can’t be sued
A Chesterfield County judge dismissed a lawsuit over whether officer names can be redacted from a county police roster after siding with a government lawyer who argued Virginia police departments can’t be sued under the Freedom of Information Act.
Virginia police transparency activist Alice Minium brought the case after the Chesterfield Police Department refused to reveal the names of more than 500 officers at the lieutenant rank or below. The county is arguing those officers’ identities can be shielded because they could potentially work undercover.
After Thursday’s hearing, Minium said she intends to refile the suit in a modified form and accused Chesterfield officials of “dragging their feet.” She said she hasn’t met similarly strong resistance in other localities where she’s sought the same records.
“Which I think is a little bit embarrassing for Chesterfield,” Minium said.
A court hearing in the case was already delayed once due to issues with serving legal notice to the parties being sued. On Thursday, Deputy County Attorney Julie Seyfarth told the judge the police department is “not a legal entity” because it’s part of the county government.
“They have named the wrong defendant,” Seyfarth said, adding the proper defendant in the case would be the county itself.
She pointed to existing Virginia case law upholding her argument that litigation cannot be brought against police departments except when the General Assembly has explicitly authorized it.
Andrew Bodoh, an attorney representing Minium in the case, said Virginia’s FOIA law clearly enables people who request public records to bring legal action against any government entity who has those records. The state’s legal definition of “public body,” he said, is intentionally broad to cover every government actor, and citizens shouldn’t have to fine-tune lawsuits to figure out which public body is “supreme” for FOIA purposes.
“We don’t care about the labels,” Bodoh said, describing what he sees as the legislature’s intent with FOIA. “What we care about is who has the records.”
Bodoh said the Supreme Court of Virginia has taken up multiple FOIA cases against police departments, but Seyfarth insisted those cases advanced that far because other localities hadn’t raised the argument Chesterfield is making.
Judge Stephen Bloom, who said he had been assigned to the case less than 24 hours before Thursday’s hearing, asked the two sides if he could take time to ponder their arguments and set another hearing in July. Bodoh objected, saying FOIA cases are supposed to be heard in a speedy manner.
Bloom then ruled for the county, granting a motion to dismiss the suit.
“I’m sorry you forced me to do that,” the judge said.
Watchdog agency says requests from governor are ‘investigative notes’
The Office of the State Inspector General denied a FOIA request from the Virginia Mercury this week seeking copies of any written requests for investigations the watchdog agency has received from Gov. Glenn Youngkin.
The Mercury sought the records because they could potentially shed light on why Youngkin’s request for an investigation into a 2022 snowstorm produced a 29-page OSIG report, but no report was produced after Youngkin’s more recent request for an investigation into the hiring of a former Virginia State Police trooper who went on to kill three people in California.
Virginia’s Freedom of Information Act includes an exemption for “investigative notes, correspondence and information furnished in confidence” to state agencies that perform audit or investigative work.
In an email, Inspector General Michael Westfall said formal requests for investigations made by the governor and “any entity” are considered investigative notes and exempt from public disclosure.
The Mercury’s efforts to track FOIA and other transparency cases in Virginia are indebted to the work of the Virginia Coalition for Open Government, a nonprofit alliance dedicated to expanding access to government records, meetings and other state and local proceedings.
Another big FOIA bill from Richmond’s gas utility
Glen Besa of the Sierra Club’s Falls of the James chapter on May 23 requested public records on the total natural gas purchased, sold and lost in 2022 by Richmond Gas Works, as well as records showing how much the municipal utility paid for gas it purchased for distribution and resale between 2020 and 2022, and from whom. On May 25, a representative from the Department of Public Utilities provided an estimated cost of $242.29 for the records and said Besa would be notified of any necessary adjustments.
On June 7, the department sent Besa the records with a final price tag of $713.10 — a cost almost three times the estimate. Besa said the Sierra Club would pay the bill but was surprised by the increase. It was the second time the utilities department had attached a price far above its estimate to records requested by people affiliated with the Sierra Club’s Beyond Methane RVA campaign, which seeks to move the city away from natural gas. In March, another member received a surprise $3,500 bill for a request initially estimated to cost less than $100.
Loudoun School Board says sex assault report still covered by attorney-client privilege
According to reporting by Loudoun Now, a majority of the Loudoun School Board still believes an independent investigation it commissioned to look into how the district handled two high-profile sexual assault cases in 2021 should be considered privileged attorney-client information, despite a recent judicial ruling to the contrary.
The report was written by Fairfax law firm Blankingship & Keith and most recently has been sought by Virginia Attorney General Jason Miyares as part of the prosecution of former Loudoun Superintendent Scott Ziegler.
“Although the circuit court has now issued contradictory opinions about the B&K Report, and there is another Freedom of Information Act petition pending about the B&K Report that will be heard in August, a majority of the Board believes it is still appropriate to continue to assert attorney-client privilege and attorney work product exemptions in response to FOIA requests,” a press release from the School Board said.