Scott Seaton doesn’t need a formal Freedom of Information Act request to give access to digital copies of his recordings of closed-session meetings of the Augusta County Board of Supervisors to anybody who would want them.
Per Megan Rhyne, executive director of the Virginia Coalition for Open Government, Seaton “can turn over the recordings any time he wants.”
“He doesn’t need a FOIA request directed at him. He doesn’t need the county’s FOIA officer asking for them in response to a FOIA request from the board, a citizen or a reporter. His hands are not tied,” Rhyne wrote in a post on Substack. “If he’s asked for them in order to respond to a FOIA request, he can disclose them himself, or he can forward them to the powers that be.”
The recordings, reportedly dating back to the beginning of Seaton’s tenure as the Wayne District representative on the Board of Supervisors in 2020, are the focus of a resolution approved last week by the full BOS, which wants “possession, custody and control of any and all public records” in the possession of Seaton.
The board voted 6-0 last week to assert its right to “possession, custody and control” of the recordings, to include “any and all public records created during a closed meeting, public records created outside of any closed meeting pertaining to the subject of the closed meeting, any and all communications pertaining to the subject of the close of a closed meeting, and any and all communication mentioned information distributed and or discussed during a closed meeting, and recordings regardless of any FOIA exemption that might apply.”
Seaton, in response, is saying that he will only turn over custody of the recordings if ordered to do so by a state court, setting up an anticipated, and perhaps protracted, legal battle.
In the meantime, we at AFP have made a formal FOIA request to Seaton for access to copies of the recordings, and also made a separate FOIA request for access to a copy of the recording of the March 20 closed session, which was held the day that Steven Morelli, then the South River representative on the Board of Supervisors, stepped down from his seat.
It has emerged since, confirmed by an impromptu comment from Board of Supervisors chair Michael Shull at a BOS meeting last month, that the resignation may have been spurred by accusations against Morelli involving sexual harassment.
We reached out for guidance after last week’s BOS vote to the Virginia Freedom of Information Act Advisory Council, whose executive director, Alan Gernhardt, opined to us that the request by the board for control and custody of the recordings appears “to present a novel question” legally.
“Unfortunately, FOIA does not really answer the questions involved in this situation,” Gernhardt wrote in an email response to AFP. “The term ‘public record’ as defined in Code § 2.2-3701 includes all records ‘prepared or owned by, or in the possession of a public body or its officers, employees, or agents in the transaction of public business,’” Gernhardt wrote. “However, FOIA does not define the term ‘custodian,’ and my understanding is that in this instance, the individual board member has the records, but the question remains who is the legal custodian of the records (i.e., the member? the Board? the County as a legal entity?).”
Rhyne, in her Substack post, offers the view that recordings are public records, similar to how notes typed on a laptop or handwritten into a notebook are public records, and that no matter the format, they are subject to FOIA.
“So yes, the county board can make a FOIA request for the recordings,” Rhyne wrote. “They have FOIA rights like everyone else does. They can ask Seaton directly or they can file their request with, say, the FOIA officer, the county administrator or maybe the county attorney. If they do the latter, one of those folks would ask Seaton for the records, and Seaton should turn them over, not because the county has a right to possess and control the records, but because the county has a right to access public records that is the same as any citizen’s or reporter’s right to access public records through FOIA.”
Share
Chris Graham
