FOIA Friday: More details about rights restoration and the status of transition teams

What Virginia officials withheld or disclosed, Nov. 3–Nov. 10, 2023

By: - November 10, 2023 12:03 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. 

More details about rights restoration

According to The Richmond Times-Dispatch, Gov. Glenn Youngkin’s administration turned over additional documents about rights restoration to the Virginia NAACP ahead of a Freedom of Information Act lawsuit the organization plans to bring against the governor’s office. 

The Virginia NAACP has alleged the administration did not produce all the documents it was required to turn over in response to a request for records on changes to Virginia’s rights restoration process. The Youngkin administration in turn said it made “a good faith effort to work with the NAACP” and turned over additional records not required under the state’s FOIA law. 

In a Nov. 1 letter, Deputy Attorney General Stephen Popps wrote the Virginia NAACP that the administration was providing more documents “in an exercise of discretion.” 

A court hearing in the case has been postponed until Nov. 15. 

Richmond turns over tree records ahead of FOIA lawsuit hearing 

After TV news station WTVR filed a Freedom of Information Act lawsuit against the city of Richmond, officials released a set of records documenting the condition of a tree in a public park that killed a municipal maintenance worker when it fell during storm cleanup this September. 

City officials had previously refused to release risk assessments, inspection reports or documented complaints related to the tree, saying a FOIA exemption that allows the withholding of “criminal investigative files” applied to the case because the federal Occupational Safety and Health Administration is reviewing the death — even though OSHA investigations are not considered criminal reviews. 

According to the TV station, Richmond officials turned over the documents one day before a court hearing on WTVR’s lawsuit. Those records showed there had been numerous complaints about the tree. One, filed 16 days before the worker’s death, said there were “new large cracks at the base and it looks like it is falling over and could really injure someone.” The tree was referred for removal Aug. 31, but a city spokeswoman said it hadn’t yet been put on the official removal list. 

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.

FOIA Advisory Council says transition teams may not be public bodies 

Virginia’s FOIA Council found that transition teams for elected governors who haven’t yet taken office “may not be public bodies (unless they are principally supported by public funds)” and that “many, if not all, of their records probably would not be ‘public records’ subject to the requirements of FOIA since their activities would be considered political business as opposed to public business.” 

The opinion was sought by transparency activist Josh Stanfield, who in November 2021 sought records from six General Assembly members, a former Virginia finance secretary and the state Department of General Services related to then-Gov.-elect Youngkin’s transition team. After most of the General Assembly members said they would not release any records, citing an exemption in Virginia’s FOIA law, Stanfield contacted the council to ask whether documents and communications of a transition team are considered public records subject to release under the Freedom of Information Act. 

In a 10-page opinion released Wednesday, the council noted that because a governor-elect “has no official authority or capacity until he is sworn into office,” his transition team may not be a public body. However, it continued, “public bodies” include those “supported wholly or principally by public funds.” Whether transition teams meet that criteria was uncertain, the FOIA Council wrote. 

“It is unclear what amount of financial support, if any, the Governor-elect’s transition teams received from public funds,” the council wrote. “Unfortunately, given this factual background, our office does not have sufficient information on the sources of funds to determine whether the transition teams were supported wholly or principally by private or public funds. Thus, our office is unable to state definitively whether the transition teams are or are not public bodies based on support by public funds.”

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


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