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Virginia Department of Education weeks behind on public record requests

Two people seated at a long table with their names displayed: "Mrs. Jillian Balow" (left); "Dr. Tammy Mann" (right). Behind are maps of Virginia related to education
Crixell Matthews
VPM News
State Superintendent of Public Instruction Jillian Balow (left) attends a 2022 Board of Education meeting. The Department of Education, which Balow leads the operations of, responded weeks late to several public records requests, including from VPM News.

VDOE cited staffing shortages and high request volumes for at least three delayed FOIA responses, including to VPM News.

The Virginia Department of Education has taken more than seven weeks to respond to several public records requests, ignoring a state law that sets a clear timeline for responding.

They include requests submitted in late November through mid-December from a law professor, local news site The Roanoke Rambler and VPM News.

Under state law, public bodies like VDOE have five business days to respond to requests. Officials can cite reasonable reasons for a delay and receive a seven-day extension. Anything beyond that requires sign-off from a judge or an agreement with the person or group requesting the documents.

Spokesperson Charles Pyle said in a Monday email that the department made a “good faith effort” to respond to three VPM News requests dated Nov. 30, Dec. 7 and Dec. 12 “given recent staffing challenges and the volume of requests from you and other writers.”

Pyle declined to say how many requests are overdue.

Rebecca Askew, VDOE’s Freedom of Information Act officer, provided documents in response to the Nov. 30 request on Monday, Jan. 23 — about 21 business days after it was due. She said others were sent over the weekend but appeared to have been delayed by an internal email migration to Microsoft Outlook.

As of publication time on Monday night, VPM News had not received documents related to its two other requests.

“We have now hired a second FOIA specialist,” Askew said in an email Monday. “Once that person is up and running, our backlog will begin to clear.”

Washington and Lee University law professor Chris Seaman said Monday he was still waiting for documents he requested Nov. 30. The request related to email exchanges involving Sheila Byrd Carmichael, an education consultant involved in a controversial update to Virginia’s history standards.

“While I have been understanding of the delay, it's time for them to put up or shut up.” Seaman said in an interview.

Henri Gendreau, editor of the The Roanoke Rambler, said he put in a request Nov. 7 seeking emails from the State Board of Education related to Gov. Glenn Youngkin’s planned overhaul of policies regarding the treatment of transgender students by public schools. When VDOE cited a cost of more than $300 for the records on Dec. 6, he submitted a pared-down request the next day.

On Jan. 6, VDOE sent Gendreau a batch of records that didn’t relate to his request, the editor said. Askew noted the mistake and said she would provide him with the correct documents, but Gendreau said she has yet to do so.

“It’s frustrating,” Gendreau said. “I think it reveals how toothless Virginia’s FOIA laws are.”

Open government advocates have criticized the Youngkin administration and some state agencies for their sweeping use of exemptions to shield records from scrutiny. The tactic sparked lawsuits last year from the nonprofit American Oversight and a range of media outlets, including NPR, the Richmond Times-Dispatch and the Reporters Committee for Freedom of the Press on behalf of VPM News.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, said in an email that requesters could petition a judge to force VDOE to hand over the documents and fine the agency up to $2,000 if the delay was “willfully and knowingly made.”

“Agencies should not be dragging out the response time without taking advantage of those tools — either asking a court for more time or working it out with the requester,” Rhyne said.

Ben Paviour covers courts and criminal justice for VPM News with a focus on accountability.