Category Archives: Open Government

Eclipsing Speech in RVA

Richmond City Hall

by Jon Baliles 

Last month, City Council applied a few new stringent guardrails to public comment at Council meetings by altering their Rules of Procedure under the guise of “streamlining” meetings.

Now, I am all for free speech, but I also understand that people showing up to Council meetings to push for a ceasefire, fight world hunger, or colonize Mars (i.e., things Council can’t do anything about) takes up valuable time on issues that Council should be addressing (or trying to address). City Council is granted specific powers, and resolving world issues is (thankfully) not one of them. The business of local government is local and decidedly unsexy: trash pickup, potholes, schools, housing, public safety, transit, development, etc.

Council used to limit each public comment session at each meeting to eight speakers who sign up beforehand with the City Clerk with a brief description of their topic and are each given three minutes to speak. The new rules do not apply to people speaking to issues on the Consent Agenda or Regular Agenda or budget meetings; but lately, almost all of these eight Public Comment slots have been taken by people calling for or against issuing an official resolution for a ceasefire in Gaza, even though Council has not discussed any such resolution. Continue reading

The Letter

by Joe Fitzgerald 

“Gimme a ticket for an aeroplane.”

Depending on your age, you may think of this as the opening to the Box Tops biggest and most iconic hit. If you don’t follow pop music, you may think any song that begins with “gimme” might be from a news story about a county school board chair.

The line of course kicks off the 1967 hit, “The Letter.” Those two words are being bandied about now in reference to a document the Rockingham County School Board (RCSB) says people can’t be allowed to see.

The Letter was apparently written to the RCSB from the law firm that represented it beginning when LBJ was president and ending last week. “To the RCSB” is the certain part. It may have been from the firm, or from one attorney in the firm.

I have not seen The Letter. I have not talked to anyone who has seen The Letter.

But a lot of people seem to know what is in The Letter. If it was written to the five people on the county board, and each one of them had a single conversation about it, and each of the people spoke to . . . etc. More people have heard about what was in The Letter than have actually seen it. But the degrees of separation mean the knowledge of what’s in The Letter has been paraphrased more than once.

The single thing from The Letter that everybody seems to know is that The Letter and not the county School Board’s secret actions ended the firm’s relationship with the county board. Everybody knowing it does not make it true, but if it is not true, the School Board should perhaps show it was not fired as a client. The board could show that by releasing The Letter. Continue reading

Tough Question: What’s Going On at the Virginia General Assembly?

by Gordon C. Morse

Forty years ago, I wrote an essay for the Richmond Times-Dispatch — “The Long and the Short of the Assembly” — that noted “a growing sense that the Virginia General Assembly is not performing satisfactorily,” that it had “devolved into an unhappy spectacle.”

Revisiting that essay recently immediately gave me a headache. The question then and now is whether Virginia’s process for considering proposed new laws or enacting changes to existing laws provides sufficient opportunity for the public, as well as the legislative membership, to understand what’s happening at any given moment and, at some level, participate?

It has long been the habit in Virginia – based on 18th, even 17th century inclinations – to simply get lawmaking done, and as quickly as possible. Having sufficient public “access” was not a major hang-up.

To put it another way, doing legislative work in Virginia was always regarded as important, but there were always other, equally important, things to do. Growing and harvesting crops, for instance. Well into the middle of the 20th century, Virginia remained an agrarian economic/social construct. The legislative calendar reflected that reality.

That changed (sort of) with the 1970 revisions to the Virginia Constitution and there’s no need to dive deep on that subject here, except to say that there were, even then, lingering doubts about the efficacy of unrestrained democratic institutions. This concern was most dramatically expressed when, during the 1901-02 Virginia Constitutional Convention, a proposal to hold the General Assembly to a single meeting once every four years was only narrowly defeated.

But a growing state has growing needs — as my prior boss Gov. Gerald L. Baliles once liked to put it — and the remedies enacted more than 70 years ago, which go to the specific lawmaking structure, may no longer be adequate. (That’s an understatement.) Continue reading

“Blessed“ Is the Second RVA Casino Referendum

by Jon Baliles

Early voting has begin in Virginia and the Richmond casino advocates have gone all-in with the mayor and City Council to make sure the referendum got back on the ballot and now are betting the house with an absurd amount of money to make sure the referendum passes this time.

Jimmy Cloutier at Virginia Investigative Journalism has an interesting piece on the all out effort by the casino advocates to buy their way to a victory at the polls  this time around. He points out that two out-of-state companies (Urban One, based in Maryland and Churchill Downs, based in Kentucky) have already raised $8.1 million which “dwarfs the amount of money raised in every Virginia legislative race and ballot initiative in state history, according to an analysis of campaign finance data by OpenSecrets.” Continue reading

Roanoke County Quietly Extends Contract For $109,000 Year Registrar But Questions Persist

by Scott Dreyer

For many historical and cultural reasons, America has traditionally been what sociologists call a “high-trust” society. As reported in this report from the Pew Research Center, cultures with high trust (such as Canada and Sweden) usually have low crime and corruption while the reverse (such as South Africa and Peru) is also true.

Unfortunately, polls show Americans’ trust in major institutions has been on a downward slope for the past 15 years or so. Gallup first measured confidence in institutions in 1973 and has done so annually since 1993. A Gallup poll from June 2022 showed significant declines for 11 of the 16 institutions tested and no improvements for any.

Those who expressed “a great deal” of confidence in the three branches of the federal government, newspapers, TV news, big tech, and the criminal justice system were all at 26% or below.

On the issue of voting, most Americans have generally trusted the system, although documented cases of stolen elections exist. One example is the 1948 Democrat primary Senate runoff in Texas. Then-Congressman Lyndon Johnson (D) was initially behind until some mysteriously “uncounted ballots” were found in a ballot box called Box 13. Johnson then won with an 87-vote margin, earning him the nickname “Landslide Lyndon.” Johnson went on to defeat the Republican candidate in November and from the Senate later became John F. Kennedy’s vice president and then president after JFK’s assassination. Continue reading

Scandal in Plain Sight – Virginia’s Failed Regulation of Law-Avoiding Nursing Home Owners

by James C. Sherlock

One of the most important and heart-wrenching decisions families make for their elderly loved ones is whether they are able to keep them in their homes as they get older and sicker.

Sometimes that is not feasible for a long list of reasons in each case.

More than 30,000 Virginians live in nursing homes.

Both the federal government and Virginia regulate them.  The Virginia Department of Health, for both the Commonwealth and the federal government, inspects.

We should be able to expect patients to receive at least basic standards of care. A high percentage in Virginia have not .

In a five-star system, the Centers for Medicare and Medicaid Services (CMS) rates 98 of Virginia’s 289 nursing homes at one star – defined as much below average. More than a third.

Nationwide, only the worst 20 percent receive a one-star rating.

The last time I reported, in October of 2021, those figures were 54 one-star facilities out of 288. Nineteen percent.  So some of our nursing homes have gotten precipitously worse.

The ratings are backward-looking a couple of years, so the measured declines discussed here did not start recently.   By definition of the way that Medicare compiles records and assigns scores, some have been bad for a long time.

People have suffered and died from the lack of proper care and effective oversight. Continue reading

Virginia Secedes from National Elections Organization

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.
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Let The People In

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

Public Hearing, Private Decision

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

Forget Waldo! Where is ERIC?

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

Want Info? Check Only, Please.

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

Miyares Reminds Republicans the Difference a Year Makes

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

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

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

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

Clifton M. Iler
University Counsel and Senior Assistant Attorney General at the University of Virginia

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

That Transparency Will Cost You

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