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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.
Tech companies, localities use secret deals, researchers find
A search for secret agreements between localities and tech companies pursuing to bring data centers to the state proved fruitful for a Virginia professor and his students, the group of them announced this week. But the jurisdictions involved say those non-disclosure agreements are used frequently in economic deals.
Eric Bonds, a sociology professor at the University of Mary Washington, and his students Viktor Newby and Victoria Gallaway noticed localities in the state approving data centers, which are the warehouses storing the internet’s processors proliferating with skyrocketing energy and water needs.
Details of those needs were scant, said Gallaway in an interview with The Mercury, leading the UMW trio to submit Freedom of Information Act requests with localities in the greater Fredericksburg area for any non-disclosure agreements with tech companies or data center companies.
The group’s search proved successful — they found that non-disclosure agreements, which prevent parties who sign on to them from sharing any details of arrangements, were used in the city of Fredericksburg and counties of Caroline, Louisa, Orange, Culpeper and Stafford, according to a news release from Bonds and the students.
Spotsylvania County was working on a response to their inquiry, the trio said, as King George County was “largely non-responsive,” and the town of Culpeper said it did not use any NDAs.
In one NDA with Culpeper County, the organization was listed as “The Company.” In Orange County, officials declined to share 157 pages of correspondence between the county administrator and the director of economic development, out of fear of violation of the NDA.
Bonds said in the release that his concern is that “the use of NDAs is part of the reason public discussion has been so limited.”
“Locally, landowners and homeowners are going to be impacted by the construction of new electrical utility lines and water pipelines,” said Bonds. “Up until recently, these projects were approved with very little public debate about the cumulative environmental impacts.”
But NDAs are used all the time, explained the FOIA officer in Culpeper County, as a way to prevent bidding wars over land a large tech company may be interested in. Officials in King George and Louisa counties echoed those reasons, with the latter saying regulation 2.2-3705.6 allows for NDAs to be used.
“Once performance measures, investments and incentives terms neared finalization, project information was brought before the board for approval,” said Cindy King, community engagement manager with Louisa County. “Public notices were provided, and a public hearing was held to ensure transparency. Details, including the cooling method and water supply needs, were discussed openly.”
Josh Levi, president of the Data Center Coalition, voiced those competition concerns while adding they may prove beneficial to the public.
“An NDA between a locality and a company does not restrict information shared with the locality, including information related to water or power,” Levi said. ”On the contrary, the protections provided by NDAs may result in an increase in the amount and detail of information shared with localities as projects are considered.”
Louisa County reviews “water supply requirements in detail,” King added, noting that power needs involve the Rappahannock Electric Cooperative. Similarly, Chris Hively, town manager for Culpeper, said water needs had been publicly discussed in September meetings, and power needs involve consultation with Dominion Energy.
King George County media relations manager Amy Southall said the locality “holistically reviews information” on project proposals. And Andrew Spence, Stafford County’s chief director of information services, said the county “has conducted a thorough assessment of the community’s and Amazon Web Service’s water needs.”
As for the lack of response from King George County, Southall said the locality “values transparency… to maintain trust with its residents.”
After telling Bonds no NDAs were found once an initial search concluded, Southall said that two were found and notice to him was given on Thursday, two days after Bonds made his information public and The Mercury inquired about it.
“The county is seeking its legal counsel to advise on the FOIA request,” Southall said. “Once a determination is made, Mr. Bonds will receive updated information on the status of his request.”
Officials in the counties of Caroline and Orange did not respond to requests for comment.
Richmond wrongful termination lawsuit not getting its day in court
The former Freedom of Information Act officer for the city of Richmond is saying the city is delaying its wrongful termination lawsuit so it gets passed “onto the next administration,” according to the Richmond Times Dispatch.
Connie Clay, the city’s former FOIA officer for six months after being fired in January, filed her lawsuit in March, saying the termination was illegal after whistleblowing the city was breaking public records laws.
The city’s attorneys received a 30-day extension to review Clay’s claims, and then filed a demurrer, which seeks to see if a case has merit to proceed, saying the allegations are baseless.
Since then, over a six-month span, a court date hasn’t been set, despite a Nov. 19 date being secured on the court’s docket. A city spokesperson declined to provide comment to The Times-Dispatch.
Mayor Levar Stoney is serving in the final year of his first term and he is seeking the Democratic nomination for Virginia’s lieutenant governor next year. A new mayor will be elected on Nov. 5.
Have you experienced local or state officials denying or delaying your FOIA request? Tell us about it: info@virginiamercury.com
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