(C) Virginia Mercury This story was originally published by Virginia Mercury and is unaltered. . . . . . . . . . . FOIA Friday: Chesterfield FOIA policy scrutiny, King George data center park debate • Virginia Mercury [1] ['Staff Report', 'More From Author', '- April'] Date: 2024-04-05 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. Senator invites stakeholder feedback on VCEA, plans to keep it under wraps Sen. Dave Marsden, D-Fairfax, invited a group of stakeholders to share their opinions and feedback about the Virginia Clean Economy Act, and told them he planned to use a Virginia FOIA exemption to keep their comments shielded from public view. In an April 4 phone interview with the Mercury, Marsden said he wrote to dozens of invitees that he wanted their feedback on the VCEA, so that he can better understand the challenges of implementing it, four years after the measure was passed by the legislature. Marsden was chief co-patron of the VCEA in 2020, which established a slate of renewable energy and efficiency measures aimed at reducing pollution that contributes to climate change and achieving zero-carbon electricity generation by 2045. The invitees included representatives from six categories: environmental groups, electric and gas utilities, local and state government, the business community and solar and wind developers. His goal, Marsden said, was to “see what are the roadblocks from being able to move forward with the clean energy projects that the VCEA calls for, because I’m hearing there are a lot of roadblocks for them.” The stakeholders’ feedback, solicited ahead of a VCEA summit Marsden is planning for this September or October, would inform any legislation he will introduce in the future. “These meetings and your feedback will be part of the confidential working papers as I consider legislation,” Marsden wrote in his stakeholder invitation. “My intent is to keep the shared records confidential pursuant to the working papers and correspondence exemption, Code § 2.2-3705.7 (2).” Virginia FOIA’s working papers exemptions allows elected officials to release their working papers if they want but doesn’t require them to do so. When asked why the stakeholder feedback would be included in his working papers instead of being made available for public view, Marsden said it is “standard procedure” for legislators to request this type of information from individuals and groups, and that he wanted invitees to offer candid feedback. “We consulted with Alan [Gernhardt],” executive director of the Virginia FOIA Advisory Council, “about the language in our invitation to stakeholders,” Marsden said. “We went out of our way to be transparent.” Marsden added that the fall VCEA summit would be open to the public and offer opportunities for citizens to share their opinions and questions related to VCEA issues. Megan Rhyne, director of the Virginia Coalition for Open Government, told the VirginiaScope, an independent political newsletter, that Marsden’s move is unusual and preemptively inhibits transparency. “We prefer to see people evaluating FOIA requests on a case-by-case basis based on content, and not just saying, ‘These will be withheld as my working papers,’” Rhyne said. Judge: Chesterfield’s FOIA policy “clashes” with state transparency law’s intent In an ongoing lawsuit between a Chesterfield County woman and the county government and police, a judge said the locality’s standard practice of withholding some information it is not explicitly mandated to share with the public “clashes” with the pro-transparency directive laid out in Virginia’s FOIA law. WTVR reported that retired judge William Shaw issued an opinion in a lawsuit by Chesterfield Charlotte Carter, who in 2022 sought country police records including body camera footage and officers’ reports related to an incident at her home. Carter said the Chesterfield Police Department initially denied her request and then told her it would cost $24,000 to fulfill her requests, an amount she deemed excessive. “It’s been almost a year and a half now that I’ve been fighting this and trying to get these documents. I don’t feel 24k is a reasonable assessment,” Carter told WTVR. “I can see where people can be easily dissuaded from accessing public records when this is what you have to go through to get them.” Chesterfield County’s website says “[I]t is the county’s practice to invoke all exemptions that are applicable to any request for records,” in an effort to “treat all citizens the same way, to the greatest extent possible.” In his order to allow Carter’s case against Chesterfield’s county government, police and police chief Jeff Katz to move forward, Judge Shaw appeared to take issue with the county’s practice of withholding information that it has the discretion of releasing. “On its face the county’s policy clashes with the policy of openness under [FOIA],” Shaw wrote. 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. New hope for Amazon data center campus in King George? A project to build an Amazon data center park in King George County may soon be back on track, after the county’s attorney told the company the project could be saved if Amazon is willing to consider four requests put forward by the county’s leaders. Former King George County Board of Supervisors chair Richard Granger and other county leaders signed a performance agreement with Amazon Data Services in December 2023 for the company to construct a data center complex on 869 acres of land bordering U.S. Route 3. In January of this year, however, under the leadership of newly-elected board chair T.C. Collins and with three new members, the board voted to reconsider the agreement. “ADS had not signed the agreement at the time of the Board’s vote to reconsider it, but the agreement contains a “counterparts” clause, meaning that a copy with only one party’s signature is enforceable to the same degree as one with all parties’ signatures,” reported the Fredericksburg Advance. ADS signed the agreement and sent it to the county’s attorney Jan. 8. While the county and the company disagree on whether they have a standing agreement, county attorney Richard Stuart wrote to ADS that the county may be willing to “resurrect” the deal if ADS will consider and discuss stipulated commitments, including: that ADS will provide residents with at least 2,000,000 gallons of treated drinking water per day; that a portion of the property will remain undeveloped; and that “‘better’ buffers will be installed on the east side of the highway to shield the complex from view,” according to Stuart’s letter, which the Advance obtained through a FOIA request. County supervisors were slated to discuss the matter at their April 2 meeting. Have you experienced local or state officials denying or delaying your FOIA request? 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