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FOIA Friday: What Virginia officials withheld or disclosed, May 19-26, 2023


FOIA Friday: What Virginia officials withheld or disclosed, May 19-26, 2023

May 26, 2023 | 12:03 am ET
By Staff Report
FOIA Friday: What Virginia officials withheld or disclosed, May 19-26, 2023
File cabinets. (Getty)

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. 

Access to criminal investigative files in inactive cases

In January 2022, a journalist working on a story in conjunction with ABC News requested criminal investigative files from the Richmond Police Department related to a 2007 burglary. The man who reported the burglary died four years later in what police determined was a suicide. At the time of the journalist’s request, state law required law enforcement agencies to provide such records for cases that weren’t ongoing. RPD delayed sending the files for 15 months and then notified the journalist that a law passed by the General Assembly in the interim allowed a crime victim’s immediate family member to seek an injunction preventing the release of the records – which the mother of the man did. (The law also exempts such files from mandatory disclosure.)

On May 22, Richmond Circuit Court dismissed the mother’s request for the injunction because the journalist made her FOIA request prior to the passage of the new law restricting access to investigative files. The new law, the court found, is “prospective only.” In an April filing, Richmond Police also opposed the injunction, conceding the law shouldn’t be applied retroactively and “the prior version of the applicable statutes required RPD to disclose” the files. 

Windsor police files

A May 24 hearing on whether the town of Windsor should have to turn over policing records it considers “privileged and protected” to the Virginia Office of the Attorney General was rescheduled, and no new date has been set, according to attorney general spokesperson Victoria LaCivita. 

The records are being sought as part of a lawsuit that began under former Democratic Attorney General Mark Herring, who claimed the Windsor Police Department was engaging in “discriminatory, unconstitutional policing” by disproportionately stopping Black drivers, among other allegations. The current attorney general, Republican Jason Miyares, has continued the lawsuit in a modified form. 

In March, according to The Smithfield Times, attorneys for the office argued the town of Windsor hadn’t turned over all the relevant documents it has, including complaints filed against Windsor police officers and the personnel records of two officers who in 2020 “held a Black Virginia National Guardsman at gunpoint and pepper-sprayed him during a traffic stop.” In turn, the town has argued that it has no authority over records held by the police chief and has asked that the state confirm it “has sequestered or destroyed” all documents previously turned over by the chief. 

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. 

More details on doomed (and costly) VCU Health deal

Documents obtained by Richmond BizSense through Freedom of Information Act requests reveal a tangle of problems related to a failed $325 million project to replace Richmond’s dilapidated former Public Safety Building — an effort that has left VCU Health on the hook for at least $80 million. The records show Richmond officials accused developer Capital City Partners, which is also involved in Henrico County’s $2.3 billion GreenCity project, of withholding information about problems for three months and sent the company a notice of default on the agreement. A complicated series of obligations remains for VCU Health, which along with Virginia Commonwealth University is conducting a review of the original deal through a third-party law firm. 

Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: [email protected]