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Wednesday, December 2, 2015

As of 2015 Open Government and Transparency in Virginia……it Does Not Exist!


Update: 

Editorial: Access blocked to court records, which should be public, February 19, 2016

Original Post:

A few days ago the Richmond Times Dispatch had an article about FOIA requests to local Richmond area entities Responses to FOIA requests vary across region http://www.richmond.com/news/article_1816b1a4-bafb-531c-8d02-ae10fc1287c5.html being denied. 

Last month I finally contacted (I should have done it months ago) the Virginia Supreme Court for some data that I had been looking for, for a very, very long time but everyone I had previously contacted (Virginia State Police, Virginia Crime Commission, Virginia Criminal Sentencing Commission) claimed they didn’t have it. 

My request was:
 

I- Total number of circuit court petitions filed by Virginians for removal from Virginia State Police (VSP) Sex Offender Registry? 
  • 2006
  • 2007
  • 2008
  • 2009
  • 2010
  • 2011
  • 2012
  • 2013
  • 2014

Of these circuit court petitions how many were granted/approved or denied? 
 
  • 2006
  • 2007
  • 2008
  • 2009
  • 2010
  • 2011
  • 2012
  • 2013
  • 2014
 
II- Total number of circuit court petitions filed by Virginians who are listed on the Virginia State Police (VSP) Sex Offender Registry to obtain permission to be on school or daycare property?
 
  • 2006
  • 2007
  • 2008
  • 2009
  • 2010
  • 2011
  • 2012
  • 2013
  • 2014

Of these circuit court petitions how many were granted/approved or denied?
  • 2006
  • 2007
  • 2008
  • 2009
  • 2010
  • 2011
  • 2012
  • 2013
  • 2014 

Here is the reply I received 4 days later from the Virginia Supreme Court: 

Your request for data regarding the total number of circuit court petitions filed by Virginians for removal from the Virginia State Police Sex Offender Registry, and of those, the number that were granted/approved or denied, was forwarded to me for response.

Please be advised that the circuit court clerks are by statute the custodians of the records "deposited in their offices as well as records stored in electronic format whether the storage media for such electronic records are on premises or elsewhere."  Va. Code § 17.1-242.  Accordingly, you will need to contact the circuit court clerks regarding your request for these records.  Contact information for the circuit court clerks is available on Virginia's Judicial System Website at
http://www.courts.state.va.us/directories/circ.pdf.
 
There are 120 Circuit Courts in Virginia! 

Do you have any idea how long that would take me to request, follow-up on, gather and compute? 

Plus instead of one possible fee for my inquiry which could be extremely costly I could be charged 120 separate fees equaling an even greater amount! 

The Virginia Supreme Court HAS to know this information, why would VA Code prohibit them from dispersing it? 

It’s just like the VSP hiding behind a FOIA exemption (August 1, 2015 http://goo.gl/8BdRGu and October 26, 2013 http://goo.gl/TbW2vT ) that allows them to deny any request for data from the Virginia Sex Offender Registry if they deem its personal (of each Offender) information. 

….And the II request is information the Virginia Legislature should have known back in January 2015 BEFORE they voted to pass HB1366 into law OR before Governor McAuliffe signed it into law! 

So I sent the results of my VA Supreme Court FOIA request to both the RTD reporter of the recent article and to the Virginia Coalition for Open Government and I learned there is a pending court case on this exact issue.  

I was advised: 

The case is against the OES [Office of the Executive Secretary] of the Virginia Supreme Court for access to a database of court case disposition data. This is data that used to be given routinely but now is being withheld. The OES definitely HAS the database but they are making the argument that it’s not really the custodian of the data because this is information the clerks are required to keep and they give it to the OES essentially as a courtesy. 

If you go to the clerks, they will say that these are records required by law to be maintained, and as such they are not covered by FOIA. They are covered instead by the courts-of-record title that allows them to charge more for access. On the other hand, records not required to be maintained by the clerks, like administrative records, ARE subject to FOIA. Confusing for sure. 

So, all of that is to say that just because you (or I or anyone or no one) thinks that a particular set of records should be in the OES’ possession doesn’t mean they are. And even if they are, if they are there as a courtesy, and not because a law directs the OES to maintain the records, then they would reside with the clerks of court. 

Cumbersome? You bet! Unique to the records you seek? Not at all. The OES and the clerks of court are behind the times in that they are making all of their records less accessible, not more so. 

As it stands now, though, you would need to contact the clerks themselves to get the data you seek. 

And I was sent this: 

FOIA: Judge denies court office's request to dismiss Daily Press lawsuit, November 11, 2015

Its 2015………. and in Virginia the General Assembly Sub-Committee and Full-Committee hearings are NOT streamed live on-line or available to watch or listen to after the fact because the Legislature doesn’t want them to be recorded. The floor-sessions (House and Senate are live-streamed on-line BUT they are NOT available to watch after the fact, http://www.pilotonline.com/news/government/politics/virginia/va-in-minority-with-no-legislative-video-audio-archives/article_0ff56ce9-7233-594b-9fa9-8a1bfb1a2a31.html . There are non-recorded voice voices to “kill bills” in the first Sub-Committee hearing so constituents can not look up how their elected-official voted http://www.opengovva.org/blog/rules-v-spirt-not-mention-fairness . And there have been many articles in the past on the number of bills that are “killed” by never being added to a Committee docket known as “by stealth” http://www.fredericksburg.com/news/virginia/in-virginia-general-assembly-many-bills-die-by-stealth/article_bfbd12c0-bd25-11e4-a211-af13f90df680.html , while other bills are sent to the Finance and Appropriations Committees to die without ever having to give a reason and how the Virginia House Courts of Justice Committee hears/decides the most bills each session giving that one Committee “super power” across the entire Legislature. 

Plus FOIA requests in Virginia across the board are denied and those that are granted can come with extremely excessive fees……… oh and don’t forget if you aren’t a Virginia resident you can not submit a FOIA request looking for Virginia data. 

Citizens and advocates can’t hire attorneys to challenge these frivolous denials for important and must-know data and we have no other options available, when you are denied there is no appeal process, there is no group or organization that will fight for your valid request and these Virginia Departments, Commissions and Government Branches know it. 

Virginia is living in the dark ages when it comes to transparency (The case for improved transparency) and citizen involvement in the democratic process.  

But let’s not forget Virginia’s issues with prosecutorial integrity, mandatory minimum sentencing, a high rate of Alford pleas, a low rate of jury trials, lifetime revocation of rights for felons, the 21-Day Rule, our Parole Board, our Rules of Discovery, the limitations for a Writ of Actual Innocence, our exonerated compensation cap for those wrongfully convicted and incarcerated, the low number of full-pardons by Virginia Governors for those who could and should have received them, our high-rate of referring students to our criminal justice system and our labeling college men who are accused of sexual misconduct but not convicted in their college transcripts. Just to mention a few. 

Well, I hope the scheduled court date of February 16, 2016 for the cases against the Office of the Executive Secretary of the Virginia Supreme Court by the Daily Press brings about a small amount of change here in my home State.  

Virginia Legislators repeatedly pound their chests claiming Virginia is a State that leads the first to take on tough issues and initiatives that other states then follow. 

Not when it comes to Open Government and Transparency, it that we lag woefully behind and we should not only be ashamed of that fact but we should be working hard to fix instead if ignoring and denying it! 

Mary Davye Devoy