FOIA arguments are not uncommon

Published 8:07 pm Tuesday, January 8, 2019

Screaming, threats, even assault have resulted

By Diana McFarland

Managing editor

Smithfield Town Council member Randy Pack wasn’t alone in publicly expressing anger and frustration over closed session information being made public.

Alan Gernhardt with the Virginia Freedom of Information Advisory Council ticked off several stories of elected officials threatening others, getting into screaming fights and trying to punish fellow officials over closed sessions — and one case where a male official, frustrated with a fellow female official, instead hit her husband and got arrested. 

Subscribe to our free email newsletter

Get the latest news sent to your inbox

However, there is no law prohibiting an elected official from telling the public the contents of a closed session as that falls under the free speech provision of the First Amendment in the U.S. Constitution, said Gernhardt. {mprestriction ids=”1,2,3,4,5,6″}

That means that Pack’s inference that a code of silence is required until the entire council decides to make a closed session item public is incorrect.  

Meanwhile, Virginia’s FOIA law is silent on members of elected bodies disciplining other members, said Gernhardt.

In his Dec. 4 public speech condemning Smithfield Town Council member Denise Tynes for answering questions from the press about a lease amendment with a private organization, Pack noted there was no physical punishment, legal ramifications or other punishment that could be inflicted on Tynes. 

On the other hand, Pack said that talking about closed session items disturbed the trust among council members and that they may now worry about expressing their true feelings. 

Pack’s criticism was public. In Virginia, a public body cannot use a closed session to discuss the performance and discipline of a fellow member unless it has the authority to do so. 

That authority, at least in the case of Smithfield, would be included in the town charter, said Gernhardt.

Smithfield’s charter does not include that provision. 

Generally, any penalty would have to come from constituents on Election Day, not from fellow elected officials, said Gernhardt.

Virginia’s FOIA law is clear, however, on the need for closed session items to be certified as legal after a meeting, said Gernhardt. 

Under FOIA, elected officials are required to publicly report anything that was discussed during a closed session that they believe exceeded the law’s authorization, which for the sake of local government, is generally limited to competitive contract negotiations, real estate purchases where public discussion would impact negotiations, prospective business inquiries, consultation with legal counsel on specific legal matters or litigation and personnel issues.

Senator Scott Surovell, D-36th, plans to re-introduce a bill in this year’s General Assembly, that deals with the certification process. 

The bill would allow a court to impose a civil penalty of $500 on each member of a public body if it is found that one or all of them voted to certify a closed meeting that was not in accordance with FOIA requirements. 

The penalty would be paid into the state’s literary fund. 

The other part of Surovell’s bill would impose a $100 penalty per record on public officials who fail to provide public records in accordance with FOIA because that person intentionally altered or destroyed the requested records prior to the expiration date on keeping such records. 

The bill died in committee last year. 

Surovell said he is working with the Virginia Press Association on the bill this year. The Virginia Freedom of Information Council studied the bill but passed it on with no recommendation this year, said Gernhardt.

The Council saw issues with implementation, in that people could be caught inadvertently, rather than intentionally, breaking the law, said Gernhardt. 

Gernhardt has seen situations where a closed session was certified, but an official later said the group had strayed off topic.  {/mprestriction}