FOIA Friday: Spotsylvania closed meeting and Fauquier records withholding

What Virginia officials withheld or disclosed, Sept. 8–Sept. 15, 2023

By: - September 15, 2023 12:04 am

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. 

Three Spotsylvania School Board members say closed meeting violated law

Three members of the Spotsylvania School Board refused to certify a nearly three-hour closed session, saying the board had discussed issues that weren’t publicly disclosed as the reason for the closed-door conversation.

According to The Free Lance-Star, one board member said the issues “included school finances, teacher shortages, staffing, athletic fields, and other pending litigation that was not the litigation that had been disclosed before entering the closed meeting.” 

Under the Virginia Freedom of Information Act, public officials are allowed to go into closed session only if they identify the purpose and subject matter of the meeting and the specific exemption in the law allowing the discussion to be private. A public body has to vote to enter closed session, must “restrict its discussion during the closed meeting only to those matters specifically exempted from [public disclosure] and identified in the motion,” and after the conclusion of the meeting must certify that all the rules were followed. 

Transparency and media groups back challenge to Warrenton records withholding 

Numerous national, state and local news and transparency organizations have filed or signed onto amicus briefs challenging a Fauquier Circuit Court decision that the town of Warrenton could withhold more than 3,000 records related to a special use permit Amazon is seeking for a 220,000 square foot data center. The group seeking the records, Citizens for Fauquier County, has appealed the ruling to the Virginia Court of Appeals. 

The Virginia Coalition for Open Government has filed one brief, as has the Reporters Committee for Freedom of the Press. (Mercury Editor Sarah Vogelsong is on the board of VCOG.) Twenty-two organizations have signed onto the committee brief, including the Virginia Press Association, Piedmont Journalism Foundation, Prince William Times, Fauquier Times and Tribune Publishing Company, which owns The Virginian-Pilot and Daily Press. 

The Fauquier judge had ruled that 3,150 emails from the town’s mayor and manager could be withheld under FOIA’s working papers exemption for various executive officers. After reviewing what he described as a “small sample” of the documents provided by the town, Judge Alfred Swersky said there was “no indication of bad faith on the part of the town or its counsel.” 

The Reporters Committee for Freedom of the Press argues the Fauquier court interpreted the working papers exemption too broadly and failed to require the town to adequately prove that all 3,000-plus records met that exemption. The Virginia Coalition for Open Government offers similar arguments, noting Virginia FOIA “assigns the burden of proof to the government to establish that it may lawfully withhold public records, instead of requiring the petitioner to prove otherwise.” 

“This burden-shifting provision is an essential feature of VFOIA,” the Coalition wrote. “Because the government has access to the disputed records and the public usually does not, the petitioner in VFOIA litigation would rarely prevail if the petitioner were required to prove that disputed records were not exempt from disclosure. This would flip the Act’s pro-transparency purpose on its head.” 

A bipartisan proposal for a federal shield law for journalists

Virginia Commonwealth University’s Capital News Service reported that a bipartisan group of congresspeople, including Virginia Republican Rep. Ben Cline, are backing a proposal for a federal shield law for journalists.

Shield laws protect journalists from being forced to reveal confidential information or sources in court. The PRESS Act being considered by Congress would outline a few exemptions to that rule — for example, information that could prevent an act of terrorism against the U.S. — and also prevent data on reporters’ personal devices from being seized without notice. 

Capital News Service notes that “Virginia is one of 10 states without a formal shield law” and the federal proposal “may provide a model or incentive for a shield law at the state level.” 

City of Suffolk launches public records portal

The Suffolk News-Herald reports that the city of Suffolk has launched an online portal where members of the public can submit requests for government records. 

“Our citizens are entitled to this information and this software assists us in streamlining that process to provide it to them, allowing us to be even more efficient as we continue to provide the transparency that our citizens deserve,” said Suffolk spokesperson and FOIA officer Jennifer Moore.  

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


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