Category Archives: Open Government

Virginia Secedes from National Elections Organization

Posted on May 13, 2023 by | 22 comments

by Jim McCarthy

A February 25 article in Bacon’s Rebellion, “Forget Waldo, Where’s ERIC?” by James Wyatt Whitehouse raised questions about the volunteer national election clearing house organization entitled Electronic Information Registration Center, or ERIC. The BR piece highlighted the experience of the Alabama Secretary of State:

On February 15, 2023, Alabama Secretary of State Wes Allen paid a visit to the ERIC headquarters in Washington, D.C. It is important to note that Mr. Allen withdrew Alabama from participation in ERIC just a few weeks before his visit. Mr. Allen had this to say about his visit to the Connecticut Avenue headquarters of ERIC, Inc.: ‘I was in DC for a meeting of the National Association of Secretaries of States and, since I was in town, I went to see the ERIC Headquarters. What I found was that there was no ERIC headquarters at that address. There were no employees. There were no servers. There was no ERIC presence of any kind. Instead, I found a virtual office that is rentable by the day. What it was missing was people, servers, and any sign of the ERIC team.’

The absence of existential staff and the existence of a virtual office prompted subsequent questions concerning ERIC’s information security and its utility to member states. As noted, Mr. Allen pulled the trigger on his state’s membership weeks before asking his questions. In 2012, Virginia was a founding member of ERIC under the administration of Governor Bob McDonnell.
Continue reading →

22 Comments

Posted in Elections, Electoral process, Governance, Government Oversight, Open Government, Transparency, Uncategorized

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Let The People In

Posted on May 1, 2023 by | 23 comments

Dr. Judith Brooks-Buck, Suffolk City School Board

by Dick Hall-Sizemore

The Virginia Supreme Court has again ruled against a local government for violating the Freedom of Information Act (FOIA).

The case arose as a result of Deborah Wahlstrom deciding to attend a day-long retreat of the Suffolk City School Board focused on board training and strategic planning. The meeting was publicly advertised and was to be held in a city school. At some point after she arrived and took a seat in the room in which the meeting was to be held, she was told that members of the public could not be in the room and could only view a video feed of the meeting from another room. She remained in her seat. Board Chair Judith Brooks-Buck then approached her and told her that she couldn’t be there because “this is a closed meeting.” Subsequently, she and the Superintendent of Schools John Gordon told her to exit the room and return to the lobby. She refused, citing her legal right to be present in the room.

As the discussion continued and got a little more heated, the superintendent threatened to call the police. Wahlstrom remained in the room. The police were called and the superintendent explained to the police that Wahlstrom was “an enemy of the school division.” The police officer escorted Wahlstrom out of the building and told her she had to leave the property entirely. She was not even allowed to view the meeting virtually. Continue reading →

23 Comments

Posted in Courts and law, Open Government, Virginia Freedom of Information Act, Virginia history

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Public Hearing, Private Decision

Posted on March 1, 2023 by | 14 comments

by Joe Fitzgerald

The Bluestone Town Center (BTC), according to council members who voted 3-2 to approve it, was decided in secret meetings between those council members and the applicants. At Tuesday’s open meeting in which they voted to approve BTC, those council members rather shamelessly admitted to those sessions.

City staff and the city manager effectively sat on their hands during the discussion, which brought questionable numbers and questionable rhetoric from rookie council members Dany Fleming and Monica Robinson, respectively. It was left to Councilman Chris Jones and Mayor Deanna Reed to present the arguments against the development with an assist from City Attorney Chris Brown.

The city manager was mostly silent throughout the conversation.

Also mostly silent was Councilwoman Laura Dent. She made the motion to grant the rezoning BTC sought, and followed the motion with a rambling explanation of what she seemed to say was one of the best things about the project for her, the promise of solar energy panels. Her motion effectively released the developers from their legally binding proffer to provide the panels, but she said she believed they would be installed anyway based on her private discussions with the developers. Continue reading →

14 Comments

Posted in Business and Economy, Economic development, Finance (government), Governance, Housing, Land use & development, Open Government, Uncategorized

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Forget Waldo! Where is ERIC?

Posted on February 25, 2023 by | 31 comments

by James Wyatt Whitehead, V

In 2012, seven states, including Virginia, formed the Electronic Registration and Information, Inc. (ERIC), with assistance from the Pew Charitable Trusts. Today, ERIC’s membership has risen to 32 states and the District of Columbia. ERIC’s mission is to assist states in maintaining accurate voting rolls.

Every 60 days, states that are members of ERIC send voting roll data to ERIC for analysis. Reports are generated and returned to the states who can then take any necessary action. The data sent appear to be the garden variety of voter information one would expect: who has moved in? Who has moved out? Who has died?

Security of the data seems to be of high importance to the leaders of ERIC. Membership in ERIC requires a one-time fee, plus annual dues. The budget requirements for ERIC are modest. What is not to like? ERIC provides a useful service to state election officials. Accurate voting rolls advance the common interests of all citizens.
Continue reading →

31 Comments

Posted in Central planning, Democracy and Western Civilization, Demographics, Elections, Individual liberties, Open Government, Politics, Public corruption, Uncategorized

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Want Info? Check Only, Please.

Posted on February 17, 2023 by | 38 comments

Del. Danica Roem (D-Prince William) Photo credit: Virginian Pilot

by Dick Hall-Sizemore

A recent article in the Richmond Times-Dispatch illustrates how governments will fight any attempt to amend the Freedom of Information Act (FOIA) in a way that would make it easier for citizens to obtain information.

Del. Danica Roem (D-Prince William) has been one of the more persistent legislators seeking to amend the FOIA to make information on government activities more accessible to citizens.  With her background as a journalist, she knows more about how the FOIA functions than most legislators.

One of the chief frustrations of citizens seeking information on their governments’ activities are the fees government agencies are authorized to charge as a condition of providing requested documents. Roem has introduced legislation in the past that would have capped the fees a government agency could charge. These bills went nowhere, and it did not matter if the Democrats were in the majority (HB 2000, 2021 Session) or the Republicans (HB 599, 2022 Session). This year, she took a more modest approach. Continue reading →

38 Comments

Posted in General Assembly, Open Government, Transparency, Uncategorized, Virginia Freedom of Information Act

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Miyares Reminds Republicans the Difference a Year Makes

Posted on January 16, 2023 by | 11 comments

by Shaun Kenney

If Virginia Republicans needed a sizzle reel, this was it.

With news that leftist Commonwealth Attorneys are openly refusing to enforce the law in some cases, the threat to the rule of law and the problem of selective enforcement is greater now than ever before.

Which is why a long list of actual accomplishments is enough to lift the spirits of anyone kicking the dirt about what Virginia Republicans might be in future:
Short list?

• Miyares actually reminds us of his constitutional oath (something his predecessor set aside rather quickly);
• Launching Operation Ceasefire;
• Keeping repeat offenders off Virginia’s streets;
• Listening to and working with local law enforcement across Virginia;
• Protecting consumers from bad corporate actors;
• $1 billion in settlements while tackling the opioid crisis, specifically targeting the cheap availability of fentanyl — which is more of a problem than most people realize;
• Protecting Virginia energy ratepayers;
• Touring Virginia public schools regarding school safety;
• Perhaps the marquee issue: investigating Loudoun County Public Schools for their horrific and heavy-handed treatment of concerned parents.

There are also these: (1) Virginia Republicans are moving forward with a focus on process rather than agenda; (2) Miyares knows Virginia like the back of his hand; and (3) Miyares intends to move in coalition. Continue reading →

11 Comments

Posted in Crime , corrections and law enforcement, Culture wars, Elections, Ethics, Governance, Law enforcement, Open Government, Uncategorized

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FOIA Council Responds on Request to UVa for Threat Assessment Team Records on Shooter

Posted on December 22, 2022 by | 30 comments

by James C. Sherlock

On Sunday I asked the FOIA Council to provide an advisory opinion on the University of Virginia’s decision that information about that school’s threat assessment team deliberations in the case of the November shooter, Christopher Jones, will not be released as I requested.

I received the answer this afternoon, which is far quicker than I anticipated. The Council suggests a more binding route. I quote:

Dear Mr. Sherlock:

In this instance, it appears that there may be some miscommunication or misunderstanding given that it appears that you have asked for threat assessment team information and certain other information pertaining to Mr. Jones, but in reply the University has cited the scholastic information exemption rather than the threat assessment team information exemption.

You also mentioned that the University indicated that redaction of these records would be so extensive as to effectively render them meaningless. You are correct that the threat assessment team information exemption requires that certain information be made available after certain types of incidents, and it would appear to apply to such threat assessment team records after an incident such as this one that resulted in student deaths.

However, the University is also correct that scholastic records are exempt from mandatory disclosure (and although the University did not appear to cite other provisions of law, note that certain student contact information is actually prohibited from release pursuant to subsection B of § 2.2-3705.4, and there are also various provisions of law outside of FOIA that may also affect access to student records).

It is possible that either or both of these exemptions could apply in different scenarios depending on the actual contents of the records, but without knowing those contents, it is not possible to render an informed opinion regarding whether these records are exempt from disclosure or must be produced.

To that end, you asked that this office review the 65 records withheld by the University in this matter and render an opinion based on that review. The Virginia Freedom of Information Advisory Council is a state legislative branch council that was created to issue opinions on the operation and application of the Freedom of Information Act (FOIA), to publish educational materials, and to provide training about FOIA. Continue reading →

30 Comments

Posted in Courts and law, Education (higher ed), General Assembly, Individual liberties, Media, Open Government, Threat Assessment, Virginia Freedom of Information Act

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Dead Students, UVa, and the Virginia Freedom of Information Act – Part One – Only One Client

Posted on December 18, 2022 by | 28 comments

Clifton M. Iler
University Counsel UVa

by James C. Sherlock

Updated Dec. 18 at 16:30

The deck is stacked against the press, at least in the first step.

The University of Virginia, unsurprisingly, considers it not in its interests to release information to the press about the work of its threat assessment team in the case of Christopher Darnell Jones.

Mr. Jones, after that team failed to act, shot five people, killing three.

UVa’s Virginia Freedom of Information Act (FOIA, the Act) Officer works in the University Counsel’s office. The University Counsel’s job under Virginia law in civil matters is to defend the University. Protect it from things inimical to its interests.

The fact that this office also fields FOIA requests is and must be informed by that primary responsibility. That office will never knowingly break the law, but it will search it for provisions favorable to its client’s interest.

The office has only one client: the University.

Virginia’s FOIA law is dense. Most of its 48 pages are occupied with exceptions to the general duty to release information requested.

Agency attorneys are thus positioned to find an exception to repulse attempts at getting information that government agencies don’t want made public. Even if there is another part of that same law that arguably supports the request. The key modifier is “arguably.”

Such as information responsive to my FOIA request, which has been denied by the University Counsel’s office. I don’t blame them, I just disagree. They may prove right in the end. But the end is not yet here.

I will appeal to the FOIA Council, which contains Members of and works for the General Assembly. Different client.

If the information is ultimately to be released, we then will fight the next battle. Agencies get another bite of the apple. They get to make redactions they deem appropriate under the law.  

The University’s FOIA office has done nothing wrong.

Rather, I find a structural problem with a FOIA system that requires the press to ask an agency’s defense attorneys for information inimical to the interests of their clients.  And then lets those same attorneys redact prior to release.

It cannot work in favor of the freedom of information, so it doesn’t.

I am going to publish a series about my takeaways from this experience.

That at least you can read about. Continue reading →

28 Comments

Posted in Education (higher ed), General Assembly, Governance, Media, Open Government, Threat Assessment, Virginia Freedom of Information Act

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That Transparency Will Cost You

Posted on November 2, 2022 by | 83 comments

Robert Barnett, President, Virginia NAACP.   Photo credit: Richmond Free Press

by Dick Hall-Sizemore

Attorney General Jason Miyares promised “to increase transparency” in regard to elections. In fact, this was one of the motivations behind the creation of the Election Integrity Unit. However, it seems that this transparency comes with a price.

As reported by the Richmond Times-Dispatch, the Virginia NAACP filed a Freedom of Information Act (FOIA) request for records related to the establishment of the Election Integrity Unit, its expenditures and activities, and for records of documented cases of election fraud in Virginia. The AG’s office responded that the cost of providing the records requested would be $20,000.

The FOIA statutes authorize an agency to “make reasonable charges not to exceed its actual cost incurred” a condition of providing the material requested. I do not know what material the NAACP requested nor the basis upon which the AG’s office calculated the cost, but $20,000 seems pretty high. It has been my personal experience that agencies pad these estimates as a way of discouraging requests. The NAACP could have challenged the reasonableness of the cost in court, but that would have taken time. Therefore, the organization paid. Continue reading →

83 Comments

Posted in Governance, Open Government, Transparency

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Democracy Dies in Drabness

Posted on July 16, 2022 by | 25 comments

City of Charlottesville office building… no, my bad, that’s an East German Stasi office building.

by Jock Yellott

Charlottesville’s City Hall used to be open to its citizens. We could go talk to people. Ask questions. Learn.

No longer. Front door locked. A guard in an air conditioned box. A citizen has to justify going inside. Where? Seeing whom? Why?

The guard calls upstairs to where I’m supposed to go, but no answer. She calls somebody else to let me in the door. I climb the stairs to the second floor and find… a newly installed second locked door. With camera. And a buzzer system.

I need to deliver something to the City Attorney. Buzz. Nobody answers.

The City Council Clerk? Buzz. Nobody answers. No surprise there, the clerk’s office door is usually shut with lights off. Last time the job was open was 2018, salary advertised at $70,532.80 to $137,538.96. My tax dollars at work. Or, not. No way to know who’s actually working if we can’t go in City Hall. Continue reading →

25 Comments

Posted in Open Government, Public safety & health

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Who Needs the General Assembly? Let the Budget Conferees Do It.

Posted on May 30, 2022 by | 15 comments

Sen. Janet Howell (D-Fairfax), chair of Senate Finance and Del. Barry Knight (R-Virginia Beach), chair of House Appropriations. Photo credit: Richmond Times Dispatch

by Dick Hall-Sizemore

Although legislating through the budget, a practice that used to be frowned upon, is not new, this year’s budget conferees are taking the practice to a new dimension.

The amendments released by the budget conferees include the following new provisions in the “General Provisions” section. In most cases, the Code of Virginia is amended. The remaining cases involve just language in the Appropriation Act.

  1. Changes to the tax code. These have become a standard practice.  This year there are provisions to increase the standard deduction, eliminate the state portion of the sales tax on groceries, increase income tax credits for military benefits, and make significant changes to the statutory  language regarding housing opportunity credits.
  2. University housing. To the extent that institutions of higher education operate student housing during breaks, requires them to allow eligible foster students to stay in them free of charge.
  3. Casino referendum. Prevents the city of Richmond from having a second referendum on casinos until November 2023.
  4. Private school. Exempts a private school from licensing requirements.  (The school was previously exempted until repeal of the applicable statutory provision in 2020.)
  5. Games of skill. Changes the definition of games of skill.
  6. Marijuana and hemp. Establishes a criminal penalty for possession of four ounces to one pound of marijuana. Changes requirements for labeling of products including industrial hemp. This is the first time that I remember the budget bill being used to amend the criminal code and impose a new criminal penalty.

Continue reading →

15 Comments

Posted in Budgets, General Assembly, Open Government, Transparency

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Some Basic Transparency Education Needed

Posted on May 12, 2022 by | 30 comments

Eric Moeller, Commonwealth Chief Transformation Officer

by Dick Hall-Sizemore

One of Governor Youngkin’s “Day One” actions was the establishment of the Commonwealth Chief Transformation Officer as a member of his cabinet, along with the Office of Transformation within the Office of the Governor.  Executive Order Number Five lays out the functions of that official and his office:  “The primary responsibilities of the Commonwealth Chief Transformation Officer will be to help build a culture of transparency, accountability, and constructive challenge across our government; ensure employees at all levels of government are reminded that our government works for the citizens of Virginia….”

Eric Moeller was appointed the Commonwealth Chief Transformation Officer.  In building “a culture of transparency,” I suggest that Mr. Moeller start on the fifth floor of the Patrick Henry Building where the Office of the Governor and offices of cabinet members are located.  The first order of business should be a class on the basic requirements of Virginia law regarding transparency and accountability. Continue reading →

30 Comments

Posted in Open Government, Transparency, Uncategorized

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Transformation Has a Long Way to Go

Posted on March 23, 2022 by | 4 comments

Eric Moeller, Chief Transformation Officer

by Dick Hall-Sizemore

Eric Moeller, Governor Youngkin’s Chief Transformation Officer, has his work cut out for him. In Executive Order No. 5, the Governor said that the chief responsiblities of the position would be to “to help build a culture of transparency, accountability, and constructive challenge across our government.”

As for building a “culture of transparency and accountability,” Mr. Moeller should start with the Department of Education and Department of Health. The Virginia Mercury reports that officials in several agencies have turned down numerous FOIA requests it has submitted. DOE and VDH seemed to be erecting the most obstacles.

To be fair, agencies in previous administrations have also freely invoked FOIA exemptions, justifiably or not, in response to requests for information or documents. Contributors to this blog have fought with the University of Virginia. I have had skirmishes with the Dept. of Corrections. On the other hand, some agencies have been very cooperative. James Sherlock has complimented VDH staff on their help and I have had good responses from VCCS, among others.

In summary, agencies invoking the “governor’s working papers and correspondence” exemption is not new; it has been done under governors in the past. But Governor Youngkin promised us things would be different under him.  So, go to it, Eric — start transforming that culture into one of transparency and accountability. The Monroe Building, home of the Dept. of Education and the Madison Building, home of the Dept. of Health, as well as the Patrick Henry Building, home of the Office of the Governor, would be good places to start.

4 Comments

Posted in Governance, Government Oversight, Open Government

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FOIA Council Response on Open Meeting Requirements in Discussions of Local Government Contracts with Public Unions

Posted on March 21, 2022 by | 9 comments

Courtesy collectivebargaining.com

by  James C. Sherlock

I submitted questions to the Virginia Freedom of Information Advisory Council concerning FOIA open meetings requirements applicable to local government sessions discussing contracts with unions.

I received a very prompt and thorough reply.  

The following is the response of Alan Gernhart, Esq., Executive Director. Continue reading →

9 Comments

Posted in Governance, Government workers and pensions, Labor & workforce, Open Government, Public employee unions

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Loudoun School Board Flouts Law, Constitution

Posted on August 9, 2021 by | 25 comments

Loudoun County School Board meeting… before the restrictions. Photo credit: Loudoun Times

by Emilio Jaksetic

According to The Virginia Star, the Loudoun County School Board has issued new procedures for its public meetings that improperly restrict the right of Virginians to comment at public meetings.

Citing “ongoing security threats” the school system website declared: “Only people signed up to speak to the School Board will be allowed to enter the building. For everyone’s safety, no public viewing area will be open during the public comment portion of the meeting.” Also: “Although the School Board is committed to public input, there remains concern about the safety of all participants in the public-input process. The safety and security of all staff, students and visitors remains our highest priority.”

Any School Board rules or procedures limiting speech at public meetings must comply with the First Amendment of the U.S. Constitution. (See the Attorney General Opinion of April 15, 2016.) Further, criticisms of governmental officials — including personal attacks — are protected speech under the First Amendment of the U.S. Constitution. Accordingly, public criticisms of Loudoun County Public Schools and the Loudoun County School Board are protected by the First Amendment and cannot be impeded by the School Board. Continue reading →

25 Comments

Posted in Open Government, Transparency

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