FOIA Friday: Judge sets trial date in Richmond transparency case, news editor wins plate reader case

Yahoo

02-05-2025

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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.
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.
A trial date has been scheduled for Sept. 23 in a transparency case involving the city of Richmond's former Freedom of Information Act officer, who said she was fired in retaliation for refusing to flout FOIA laws and raising concerns about possible FOIA violations during her tenure.
Connie Clay, the former Richmond FOIA officer, also said in her lawsuit against the city that her former supervisor, then-city director Petula Burks, instructed Clay to withhold information requested under the Act. Burks, who resigned from her role with the city last summer, is also named in the suit filed in March 2024.
On Tuesday, Judge Claire G. Cardwell set the discovery process to begin on May 27 at 11 a.m. The three-day jury trial is to start on Sept. 23. The judge asked both sides to fully cooperate in the process.
'I understand strong advocacy,' Cardwell told attorneys on Tuesday, as quoted by the Richmonder. 'But without pointing fingers in either direction, I would like counsel to start anew.'
'To the extent you can work together on administrative matters, please do so,' she added.
Richmond attempted to dismiss the case in January, but was denied by Cardwell, according to a report by VPM.
'Although Plaintiff's Complaint does not explicitly connect her good faith disclosures of suspected wrongdoing to defendants' retaliation and discrimination toward her, the Court may reasonably infer this alleged conduct flowed from her disclosures of suspected FOIA violations,' Cardwell wrote in her Feb. 5 order.
A Roanoke Circuit Court judge recently ruled that the city of Roanoke violated the Freedom of Information Act and is required to fulfill a renewed request for traffic camera footage of Cardinal News Executive Editor Jeff Schwaner's vehicle, Cardinal News reported.
Schwaner requested information from Flock Safety's License Plate Reader, which was footage of his car from Roanoke police, on Feb. 21. He filed the same request for 15 other law enforcement agencies. Flock Safety provides the license plate reading hardware and maintains the data.
In response, the city and the Botetourt County Sheriff's Office filed a motion in the Roanoke City Circuit Court asking the court to decide whether it was obligated to provide the footage under FOIA.
Another issue raised during the court proceedings is that camera data automatically erases after 30 days. As a result, the data Schwaner sought in February did not exist, the city said.
Judge Leisa Ciaffone 'did not find that the city 'willfully and knowingly' denied the request in a way that would make it subject to additional penalties that can be assessed when FOIA is violated,' Cardinal News reported.
However, she dismissed all the city's arguments for not fulfilling the FOIA request. She also ruled that the FOIA law outweighed local policies and contracts that localities may have with third parties like Flock Safety.
'The court finds that Mr. Schwaner has substantially prevailed on the merits and grants his reasonable attorney's fees and costs associated with this action,' the judge wrote.
John Koehler, Schwaner's attorney, told Cardinal News that they are pleased with the court's ruling that the city must release the data.
'Transparency in government gathering of data about the public is necessary to assure that the benefit that can be derived from the effort is worth both the expense and the impact on the community,' Koehler said.
Schwaner added that at the core of this request was a single idea: 'that the public has as much a right to know what's going on in public as anybody.'
WDBJ7 did reach out to the city of Roanoke for comment on the case, but the city declined to comment out of deference to the circuit court.
Gov. Glenn Youngkin is considering legislation that would put restrictions on the use and data retention of license plate readers and exempt system data from disclosure. Youngkin has until Friday to rule on the proposal.
Congressman Gerry Connolly, D-Va., is requesting information from the Centers for Disease Control and Prevention regarding why the agency's public records staff was placed on administrative leave until their jobs are eliminated June 2.
The CDC layoffs come after hundreds of federal workers including health agency workers were fired amid President Donald Trump's administration's restructuring of the federal government.
The letter, which was published by NPR and directed to CDC's acting director Dr. Susan Monarez, states FOIA ensures that the public has a 'right' to access federal agency information. Since its enactment in 1967, it has been crucial to ensuring government transparency and accountability.
'As a result, there are currently zero personnel available to process FOIA requests received by CDC,' Connolly wrote in his April 24 letter. 'The elimination of staff responsible for facilitating FOIA strongly implies an effort by the administration to prevent the public from obtaining information about their government that they are entitled to request.'
Connolly requested a response by May 8. He announced earlier this week his plans to retire.
Richmond water remains safe to drink after the recent installation of a new pump increased fluoridation levels at its treatment plant, the city announced on Monday.
The announcement, made roughly three months after Richmond faced a debilitating water crisis as state lawmakers returned to begin the 2025 General Assembly session in January, leaving thousands without drinking water.
On April 23, the city discovered the fluoride levels did increase, but at no point did samples collected in the distribution system indicate the fluoridation level exceeded the Maximum Contaminant Level (MCL) of 4.0 mg/L within the region, which is the highest level allowed in drinking water by the U.S. Environmental Protection Agency.
The city said the optimal target is 0.7 mg/L.
Hanover County said in a statement it was 'disappointed by the lack of communication' from the city, and that they didn't learn of the incident until four days later. The locality said the Virginia Department of Emergency Management notified its officials about the fluoride leak on the evening of April 27. In response, Hanover determined through its own testing that its system was well within the MCL with 1.6 ppm.
Mayor Danny Avula, who took office at the start of the year, said in a statement that he was disappointed that the city's Department of Public Utilities did not notify the Department of Health within the required 24-hour period.
The city said the Department of Public Utilities is creating new state standard operating procedures for the water treatment plant.
'I'm disappointed with our failure to communicate,' Avula said. 'This incident damages the work we're doing to rebuild trust — not only with the residents of Richmond, but our communities, and our regional partners, including Henrico, Chesterfield, and Hanover. We must do better.'
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