FOIA Friday: What constitutes public business, Loudoun settlement disclosures – Virginia Mercury

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. 

General Assembly FOIA bills: Gloss v. Wheeler

A bill clarifying that three or more members of a public body can be at a meeting together without that event legally being considered a public meeting as long as they don’t “discuss or transact any public business” cleared the Senate General Laws and Technology Committee this week. 

Senate Bill 36 from Sen. Mamie Locke, D-Hampton, was proposed in response to the Supreme Court of Virginia’s ruling last year in Gloss v. Wheeler. In that case, the court found five members of the Prince William Board of Supervisors had violated FOIA by participating in a police citizens’ advisory board meeting about local protests over the killing of George Floyd without complying with public meeting requirements laid out in state law. 

During one meeting of the FOIA Advisory Council in December, Del. Mike Cherry, R-Colonial Heights, said the ruling “has had a chilling effect among many in local government about what they can and can’t do in terms of literally just going to a Christmas party.” 

But while transparency groups say they support clarifying the definition of a public meeting, they have raised concerns that additional language defining public business could have far-reaching effects that could block access to public records. 

The newest version of Locke’s bill would define public business as “activity that a public body has undertaken or proposed to undertake on behalf of the people it represents.” 

Megan Rhyne, executive director of the Virginia Coalition for Open Government, noted that state law defines public records as various writings and records that are prepared, owned or possessed by a public body or agent “in the transaction of public business.” That could lead to government officials interpreting what records they have to release under FOIA too narrowly, she said, potentially blocking the release of reports or information not yet specifically raised by the public body.

“We really think this is actually a pretty big change,” said Aimee Perron-Seibert, a lobbyist for the Virginia Press Association, during a Jan. 24 hearing. “It’s a big deal to define public business, and we’d rather take some more time to do that.” 

The committee nevertheless passed the bill on a 15-0 vote. It also passed another bill from Sen. Richard Stuart, R-Westmoreland, clarifying that the definition of a public meeting does not apply to local political party meetings.  

“This is an effort to try to allow them to attend their political meeting, whatever party it is, without it being deemed an illegal meeting,” said Stuart Wednesday. 

A bill from Sen. Danica Roem, D-Manassas, intended to place a cap on the fees public bodies can charge to fulfill FOIA requests also remains alive, albeit in watered-down form. 

“I have made a world of compromises and concessions on this,” Roem told the General Laws committee Wednesday. 

Roem’s original legislation would have prohibited public bodies from charging people for the first two hours of a records search in response to a FOIA request as long as the requester hadn’t filed more than four records requests during the last 31 days. It also would have capped hourly fees for FOIA responses at $33 per hour unless the public body successfully argued to a court that it needed to charge more. 

After backlash from local government groups, Roem proposed a substitute version that would prohibit bodies from charging a fee to fulfill the first hour of the first FOIA request a person makes every year and increase the cap to $40 per hour, with exceptions. It would also order public bodies to document all requests they receive that take longer than 30 minutes to fulfill and ask the FOIA Council to study whether the parts of the law concerning fees “should be permanently amended to make access to public records easier for requesters.” 

The bill would have a sunset date of July 1, 2025, a period intended to allow the completion of the study. 

Daily Wire sues Loudoun schools over disclosure of settlement figure

The right-wing media outlet Daily Wire is suing Loudoun County Public Schools over its refusal to disclose how much it paid to settle a case brought by a sexual assault victim at Broad Run High School against the division. 

This October, reporter Luke Rosiak filed a Freedom of Information Act request with Loudoun schools seeking a copy of the contract settling the victim’s claims. According to the Daily Wire’s lawsuit, the division refused to produce the record, which it said was exempt from FOIA because it is an “identifiable student scholastic record,” contains information directly related to a particular student and is “a legal memoranda/work product compiled specifically for use in litigation.” 

Rosiak then filed another FOIA request seeking “financial records” related to any legal settlement Loudoun schools entered into in 2023. The division said it had “no records that are responsive to” the request. 

Augusta County appealing ruling requiring disclosure of meeting recording

According to the Augusta Free Press, the Augusta County Board of Supervisors voted 6-1 to appeal a local judge’s recent ruling ordering the board to turn over a recording of a closed session meeting. 

Judge Thomas Wilson IV previously found the board had not been specific enough in its reason for going into a March 20, 2023 closed meeting. Wilson said the personnel matter exemption cited by the board “does not contain the particularity I believe the [FOIA] statute requires.” 

The Free Press is one of the news outlets that has been seeking the recording. 

Spotsylvania School Board places superintendent on leave in closed meeting

The Free Lance-Star reports that the Spotsylvania County School Board voted in closed session to place controversial Superintendent Mark Taylor on administrative leave.

The vote was taken despite the fact that the Virginia Freedom of Information Act says public bodies can only take action on issues discussed during a closed session once they reconvene in public.  

One board member refused to certify the closed session, saying it had violated FOIA. 

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