Judge rules Virginia county must turn over recording of closed meeting

A Virginia Circuit Court judge ruled on Jan. 11, 2024, that the Augusta County Board of Supervisors violated state code when it entered a closed session on March 20, 2023, and so must share a recording of the session with the media.

The ruling came in response to two lawsuits filed by news organizations and journalists after the county refused to comply with their Freedom of Information Act requests for the recording. The county has voted to appeal the ruling.

According to Dec. 21, 2023, testimony in the case, described in media reports, the March 20 closed session of the Board of Supervisors concerned member Steven Morelli, who had submitted his resignation shortly before the meeting. The motion to close the session cited an exemption for discussions of personnel matters, but did not give any other reason for closing it to the public.

Another board member, Scott Seaton, made a recording of the session without the knowledge of his colleagues; he had also secretly recorded several other closed sessions since he took office on Jan. 1, 2020.

When the board found out about the secret recordings, it demanded that Seaton turn them over, citing Virginia’s FOIA. Seaton voluntarily turned the recordings over to the board on Aug. 9, but the board did not make the recordings available to the public.

Breaking Through Media and its editor, Samuel Orlando, and Augusta Free Press managing editor and founder, Chris Graham, subsequently filed two separate FOIA requests in August for the recording of the March 20 session. The parties also requested recordings of the other closed sessions that had been secretly recorded by Seaton. When the county failed to comply, both news organizations separately sued.

The Augusta Free Press reported that Judge Thomas Wilson IV, in his Jan. 11 ruling, agreed with Graham’s contention that the recordings, “having been turned over to the County, are now County public records.” Because they were not Seaton’s private property, the recordings were subject to FOIA, the judge ruled.

In a separate but related ruling on Breaking Through Media’s suit, Wilson wrote that under Virginia state code a body seeking to move into closed session must first satisfy three requirements, including specifically identifying the subject matter of the session.

Wilson wrote that the Augusta board claimed a personnel exemption for the closed session, and simply listed “Board of Supervisors” as the subject. That subject, Wilson agreed with Breaking Through Media, was “too cryptic, is merely a general reference to the subject matter, and does not contain the particularity I believe the statute requires.”

Wilson therefore found that the portion of the meeting discussing Morelli’s resignation was not exempt from Virginia’s FOIA, and ordered the county to provide the portion of the recording involving Morelli to the petitioners.

However, Wilson denied Breaking Through Media’s request for Seaton’s other recordings, agreeing with the county that none of the sessions “discussed the specific topics identified in the FOIA request.” He also rejected Graham’s argument that the personnel exemption did not apply to the meeting because Morelli had resigned. Wilson agreed with the county’s argument that under Virginia law, officials have until midnight to rescind their resignations and therefore, Morelli remained a supervisor at the meeting.

The Board of Supervisors voted Jan. 24 to authorize an appeal of Wilson’s order, the Augusta Free Press reported.

A representative of the board told the U.S. Press Freedom Tracker that once Wilson’s final order is entered, the county will seek a stay of the order until the case can be decided by an appellate court.

Graham of the Augusta Free Press, in an email to the Tracker, said, “We're still waiting for the wheels of justice to grind on this.”