Judge backs town of Warrenton in VFOIA lawsuit

Citizens for Fauquier County lost a lawsuit it filed against the Town of Warrenton seeking access to thousands of emails under Virginia’s Freedom of Information Act.  

Judge Alfred D. Swersky announced his ruling Tuesday, Feb. 7 in favor of the Town of Warrenton in a case brought by CFFC under the Virginia Freedom of Information Act, according to a press release from Stephen Clough, town clerk and FOIA officer for the town. 

The release said Swersky denied all the relief sought by CFFC and approved the town’s reading of the Freedom of Information Act. “The judge wrote in his informal opinion that he had reviewed the documents that the town had submitted to him and found that the town correctly withheld those records,” the release said. The judge will forward a letter to counsel with his formal ruling “in the near future.” 

The ruling came two weeks after a Jan. 25 hearing regarding the CFFC lawsuit demanding documents pertaining to Amazon Web Services' application to build a data center in Warrenton.  

The CFFC was seeking correspondence between town officials and AWS representatives about the company’s pending special-use permit to build a data center on a 42-acre industrial parcel on Blackwell Road.  

Swersky, retired from the 18th Circuit Court in Alexandria, heard arguments from Martin Crim, counsel for the Town of Warrenton, and Michael Brady, counsel for CFFC, in Fauquier County Circuit Court. Specifically, CFCC was seeking 3,142 emails pertaining to Amazon’s application. CFFC submitted Virginia Freedom of Information Act requests and received dozens of pages of documentation, but the town has withheld some, claiming they are exempt from VFOIA.  

The town maintained that “working correspondence” from the town managers – Brandie Schaeffer, who has since resigned and is currently working for Amazon Web Services; Chris Martino, current interim town manager; Tommy Cureton, who served for a brief time as acting town manager; and Mayor Carter Nevill are all exempt from VFOIA.   

A Jan. 5 brief from the town addressing the lawsuit defends the use of the word “or” in the VFOIA statute, which says the exemption includes correspondence from a mayor or a chief executive officer. The brief says, “If the General Assembly had intended for each locality to select either their mayor or chief executive officer to have the correspondence and working papers exemption, it would have said that.”  

Brady described the town’s position as a “breathtakingly broad interpretation” of VFOIA rules and maintained that the town manager or the mayor may be exempt, not both, and the rest of the emails should be released.   

The judge wrote in the informal opinion, “For the reasons I expressed at the hearing held on Jan. 25, the relief sought by the Petitioner will be denied. I interpret the word ‘or’ in Title 2.2, Section 3705.7 to mean ‘and.’” 

He added, “The court cannot rewrite the statute to impose its thoughts on which party should be exempt nor is the court in a position to know which officer should be exempted without legislative guidance.” 

CFFC had wanted the Town of Warrenton to provide the requested emails free of charge. The suit originally asked for a $2,000 penalty to be paid by Steven Clough, the town’s VFOIA officer, for each document improperly withheld, but that part of CFFC’s demands had been retracted. “That was never a significant part of the lawsuit, and it pales in comparison to the importance” of the missing emails, CFFC President Kevin Ramundo said Feb. 6. 

At the Jan. 25 hearing, Swersky asked the two attorneys for further legal arguments on which town officials should be exempt from VFOIA requests. Understanding the potential for a Warrenton Town Council vote on the Amazon application on Feb. 14, Swersky asked for arguments by Feb. 1 so he could provide a ruling soon after.  

Ramundo said that after the hearing, the judge asked Brady “to ask Crim to consider responding to the idea that our counsel be able to review the withheld materials.”  

Crim responded with a brief filed Feb. 2, reiterating that the wording of the statute allows for the mayor or the town manager to be exempt from VFOIA review.  

In response to the request about Brady seeing the emails, Crim wrote, “Nothing in VFOIA authorizes the court to order an ‘attorney’s eyes only’ review of public records.” His response expresses concerns that the emails could be unintentionally leaked and “The Respondents therefore oppose any such arrangements in this case.” 

Decision delayed  

Swersky was originally expected to deliver his opinion on the CFFC lawsuit Jan. 25, but the judge said repeatedly that the decision was too important to decide lightly and that the relevant statute does not provide clarity on which individuals should be exempt from a FOIA request.  

Swersky said, “I can’t believe the absence of authority on this. I would have believed it would have come up before this. There is no guidance for it” in the statute.  

As part of the back and forth in the case, the town had given the judge 10 emails to help him decide whether to release them all; the emails that were provided were meant to be representative of the 3,142 emails in question.   

Brady strongly objected to the town’s providing only 10 emails and asked that the judge be provided with all 3,142. He said, “It is the judge’s obligation to review all the materials to decide whether they should have been withheld. … The CFFC wants to participate in the choice of emails seen. … A representative sample has not been provided. … The CFFC has not been permitted to see the emails and help decide. The town hasn’t done that work. At some point, the town has to fulfill the burden of proof and let the judge see the emails,” not just 10 out of 3,142.   

In the Jan. 20 brief, Brady wrote, “Not only does this method provide the very party whose withholdings are in question the complete power to cherry-pick the documents for the Court’s review, it also only permits the Court to review approximately 1% to 2% of the total documents withheld, which inherently cannot be a statistically accurate sampling of the whole.”  

After the judge’s Feb. 7 decision, Mayor Carter Nevill responded, “I have always been confident in the town’s faithful application of and adherence to the Virginia Freedom of Information Act. I appreciate the hard work of staff in shouldering the burdens of this lawsuit, and I thank Judge Swersky for reaching this decision.”  

Ramundo said, “CFFC continues to believe our case is strong in laying out how the town illegally withheld thousands of documents regarding its communications with Amazon.” He said he and CFFC’s attorney will withhold further comment on the case or possible options going forward until they receive the formal opinion from Judge Swersky.

Reach Robin Earl at rearl@fauquier.com