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. 

Police try to conceal video of shooting that killed man in mental health crisis

The parents of Charles Byers, a man who was fatally shot by Chesterfield County Police officers last year during a mental health crisis, are criticizing the police department for trying to block the release of records showing what happened to their son, according to Richmond TV station WTVR.

Byers had been hospitalized for mental health treatment and was under a 72-hour temporary detention order but was arrested after an alleged scuffle at the hospital. After a brief stint at the Richmond jail, he was released and was fatally shot 36 hours later in a second encounter with police.

The Chesterfield police department has denied FOIA requests for body camera footage filed by WTVR and the Richmond police officer who arrested Byers at the mental health hospital. A lawyer for the Richmond officer is seeking the footage and other Chesterfield investigative files to help defend his client in a civil lawsuit filed by Byers’ family.

After denying the attorney’s FOIA request, the agency said it would take a court subpoena to access the records. The attorney filed a motion for a subpoena. Chesterfield police are attempting to block that too, arguing its files are irrelevant to the litigation.

“I just don’t understand what’s taking so long,” said Byers’ mother Peggy Byers. “My son is dead, and I want answers. We all want answers.”

Hopewell chemical plant claims its pollution is confidential

The AdvanSix chemical plant in Hopewell, which the Richmond Times-Dispatch reports has a “long history of leaking harmful chemicals,” didn’t disclose its pollution calculations in its application for a state permit, claiming the estimates are confidential business information.

Environmental groups and the local NAACP chapter are pushing back, arguing the lack of information about pollution makes it impossible for the nearby community to fully understand the risks of the plant and weigh in on the permit.
It’s unclear if state environmental regulators are going to insist on making that information public or go along with the plant’s request to shield it.

“The whole point of a permit like this is to ensure that they’re in compliance,”  Southern Environmental Law Center attorney Mark Sabath told the newspaper. “Some of these steps are not much better than nothing at all.”

Judge backtracks on release of closed meeting recording

A retired judge who ordered Augusta County officials to release a recording of an improperly closed meeting of the county Board of Supervisors is apparently having second thoughts, according to the Augusta Free Press.

Despite ruling in January that the recording should be made public, the judge reversed his own decision late last week after listening to the audio and concluding it “contains information and statements that at times specifically identified county employees.” Those employees, the judge ruled, have an “expectation of privacy” even if the board didn’t follow the law while closing its meeting.

At the meeting, the board was discussing the resignation of one of its members.

 <infobox>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.</endbox>

A FOIA fix for erroneous voter purges?

It’s not often that state lawmakers require the government to create new records that are explicitly public under FOIA, but that’s part of the General Assembly’s response to last year’s erroneous purges of the state’s voter rolls.

After it became clear last fall an unknown number of eligible voters with past felony convictions had been wrongly removed from the rolls, voting rights groups and media outlets spent weeks trying to get more information from the state about how many voters might have been impacted.

State officials ultimately revealed that roughly 3,400 voters had been impacted, but advocates blasted Gov. Glenn Youngkin’s administration for failing to be transparent and forthcoming about the problem.

Legislation recently sent to Youngkin’s desk meant to prevent a repeat of the faulty voter removals includes a FOIA-specific provision requiring election officials to create a record every time a voter’s registration is canceled that includes the reason for the cancellation. 

The pending law says those records, which must be kept for at least four years, are open to public inspection and copying under FOIA, giving outside groups and voters themselves more power to check the work of election officials when they believe a mistake has occurred.

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