FOIA Friday: Disclosing dollar amounts of local government settlements

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. 

Records of local government settlement amounts

A subcommittee of Virginia’s FOIA Advisory Council on Tuesday considered a proposal to require local governments to keep a record of the amount of any legal settlement they pay, either directly or through an insurance company, and to disclose that record if requested under FOIA. The idea was put forward during the last General Assembly session as House Bill 1880 but died in a House subcommittee. 

Megan Rhyne, executive director of the Virginia Coalition for Open Government, requested the change to state law after Franklin County in 2019 told a Roanoke Times reporter that it had no record of a settlement the county reached with a former employee in a sexual harassment lawsuit. The county’s insurance company, VACORP, later provided a report showing it paid more than $280,000 to settle the claim. Franklin consistently said it had no record of the settlement amount. (Mercury Editor Sarah Vogelsong is on the board of directors for the Virginia Coalition for Open Government.) 

“We started hearing from other reporters around the state that this same kind of maneuver was being used, and we felt that that was in direct contravention of a court case from 1990 that said even if the terms of the settlement are confidential, the financial records that show what was paid, that’s public,” said Rhyne. 

Alan Gernhardt, executive director of the council, said part of the issue lies in the definition of a public record as various types of records “prepared or owned by, or in the possession of a public body or its officers, employees, or agents.” 

Unlike local governments, insurance companies or pools they belong to are not considered public bodies subject to FOIA. 

“The word ‘possession’ is what’s tripping us up,” said Rhyne. “Because the locality is saying, we don’t possess this record. The insurance company, the risk pool has it.” 

Del. Mike Cherry, R-Colonial Heights, who serves as the FOIA Council’s chair, asked whether the proposal as it appeared in HB 1880 fixed the problem it sought to solve. 

“With respect to this particular issue, I think it does,” said Gernhardt. “I didn’t see any problems with the draft. … I haven’t heard any complaints with the draft.” 

Richmond Police Department makes general orders public

The Richmond Police Department has begun publishing its general orders, the rules and policies the agency sets for officers’ conduct including use of force. 

According to the Richmond Times-Dispatch, the department was required to release its general orders under a legal settlement with a group of activists and journalists related to how RPD handled the George Floyd protests in the summer of 2020. A First Amendment Policy outlining how officers should treat members of the media has not been posted, despite passing a deadline imposed in the settlement by more than a month. 

While some police departments post their general orders online, Richmond police have previously charged people seeking copies of its orders high fees. 

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