Augusta County, in a new response to our challenge in Augusta County Circuit Court to the local government’s denial of a Freedom of Information Act request related to a March 20 closed meeting of the Board of Supervisors, makes the claim that the recording of the meeting made by board member Scott Seaton should be treated as “privileged.”
“Whether Dr. Seaton’s conduct was lawful or whether it constituted a crime is not the issue. Regardless of the lawfulness of his actions, the wiretap statute specifically preserves the constitutionality and privileged nature of his recordings,” reads the response, submitted on Thursday by counsel Rosalie Pemberton Fessier, of the Staunton law firm TimberlakeSmith.
At issue is a recording of the March 20 meeting, in which board members discussed the resignation of board member Steven Morelli, that was made by Seaton, who the Board of Supervisors revealed in July had been recording the board’s closed sessions for two years, the reason being, according to Seaton, to serve as his meeting notes.
The Board of Supervisors voted 6-1 at a July 12 meeting to censure Seaton for the recordings, conceding in its resolution of censure “that the recording during the closed meeting is not illegal, and that Dr. Seaton has not violated any laws, by doing so.”
But Fessier attempted to relitigate that point in her Thursday bench memorandum, challenging, again, as she did during a Sept. 5 hearing in Augusta County General District Court, whether Seaton had a legal right to record the closed sessions.
“The fact that Dr. Seaton made a secret recording of the closed session does not constitute a waiver or otherwise change the confidential nature of the record itself. Virginia’s wiretap statute applies to the interception or use of oral or electronic communications by private citizens as well as law enforcement,” Fessier wrote, citing state code section 19.2-62 to buttress her argument.
Conveniently left out of the memo:
It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
This is also from state code section 19.2-62.
Seaton, under the state code section, would be considered a “party to the communication,” as a board member participating in the discussion.
The recording was made legally, as the Board of Supervisors has already conceded, and as a legal record of the meeting that is now in possession of the county government, it should be subject to FOIA.
That’s our reading of how relevant state law should apply, but Fessier, in her memo, made the rather remarkable claim that because the matter discussed in the closed session involving the resignation of Morelli was not the only topic discussed behind closed doors at the March 20 meeting, “the entire record can be withheld, regardless that it contains exempt and nonexempt information.”
“Disclosure of the audio recording, which is an exempt record, would reveal not only discussions about Mr. Morelli which are at the heart of the Petitioner’s case, but also discussions of other exempt matters. The exemptions related to closed sessions apply to the entire record,” Fessier wrote.
It would seem to stand to reason, using this analysis from Fessier, that public bodies could get away with using closed sessions to discuss business that Virginia’s FOIA law would otherwise require be done in open, public sessions.
Basically, as long as a public body could claim that it was discussing something legally exempt under FOIA, any records of the closed meeting – minutes, if they were kept, recordings – would be exempted from any public scrutiny.
Freedom of information laws are on the books to set the limits on what public bodies can discuss behind closed doors, and thus outside public view.
But Fessier argues, seemingly counter to the letter and the spirit of Virginia’s FOIA law, that “(i)njunctive relief under FOIA is an ‘extraordinary and drastic remedy [and] is not to be casually or perfunctorily ordered.”
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Chris Graham
