Home The judge was clear in Augusta County FOIA case: ‘I am ordering compliance’
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The judge was clear in Augusta County FOIA case: ‘I am ordering compliance’

Chris Graham
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I was first told last week that Augusta County leaders were saying privately that they didn’t consider the Jan. 11 order to turn over recordings of an illegally held closed Board of Supervisors meeting to be a court order, but rather, an opinion.

I brushed this off as being fantasy on whoever would have been saying it, because I’ve actually read the court order, which was written by retired Judge Thomas J. Wilson IV, who heard the cases involving AFP and Breaking Through Media in Augusta County Circuit Court after Judge Shannon T. Sherrill recused himself from the case.

I’m trying to think through what is unclear about these words:

“The County will be ordered to provide the tape or recording of the portion of the March 20 closed session involving (Steven) Morelli to Petitioners.

“There is no need for an injunction – I am ordering compliance, which is sufficient.”

Seems pretty clearcut, right?

Not so, to Middle River Supervisor Gerald Garber, and presumably the others in the Augusta County 6.

“One of the things I’ve heard on the street is that there has been a court order entered against us, and there hasn’t been, but I expect it to be,” Garber said at last night’s Board of Supervisors meeting, as the preface to making a motion to have the county appeal the court order.

The cases filed by AFP and Breaking Through Media have been making their way through the local courts for months now. Both organizations filed requests under the Virginia Freedom of Information Act in August requesting that the recordings be made public, and after the county denied the requests, both filed suit.

The AFP case was the first to get a hearing, in Augusta County General District Court on Sept. 5. Judge Rupen R. Shah upheld the county’s decision to keep the recordings private, ruling that the recordings were not subject to FOIA because they were made by Wayne District Supervisor Scott Seaton “for simply self-serving purpose,” and that they were “not a record of the agency nor is kept in a normal course of its business.”

Wilson, in his decision in our appeal of Shah’s Oct. 12 ruling, held that the recordings, “having been turned over to the County, are now County public records and no longer the private property of Dr. Seaton.”

With that as a foundation, Wilson sided, in the Breaking Through Media case, with the contention brought by the plaintiff’s counsel, Amina Matheny-Willard, that the county had illegally gone into closed session to discuss the Morelli resignation.

On this point, Matheny-Willard cited a 2020 Virginia Supreme Court decision, styled Cole v. Smyth County Board of Supervisors, in which the high court had sided with the petitioner, Cole, in a case involving a closed meeting of that board of supervisors held to discuss the possible closing of the county library system.

The Board of Supervisors ultimately voted 6-1, with Seaton, as usual, the 1, to authorize County Attorney James Benkahla to file an appeal of the circuit court ruling.

In the meantime, we’ve had a standing court order that is now two weeks old, and that is not being enforced.

Note that Wilson didn’t stay his order – to repeat, he wrote: “There is no need for an injunction – I am ordering compliance, which is sufficient.”

We’re two weeks past the county having been ordered to turn over the recordings.

This isn’t a game where we’re making up the rules as we go along, and everybody decides which rules to follow and which they want to ignore just on their own, or is it?

Chris Graham

Chris Graham

Chris Graham is the founder and editor of Augusta Free Press. A 1994 alum of the University of Virginia, Chris is the author and co-author of seven books, including Poverty of Imagination, a memoir published in 2019, and Team of Destiny: Inside Virginia Basketball’s Run to the 2019 National Championship, and The Worst Wrestling Pay-Per-View Ever, published in 2018. For his commentaries on news, sports and politics, go to his YouTube page, or subscribe to his Street Knowledge podcast. Email Chris at [email protected].