Thomas J. Wilson, IV Recalled Cirouit Judge January 11,2024 ‘Amina Matheny-Willard, Esquire ‘Amina Matheny-Willard, PLLC 999 Waterside Drive, Suite 2525, Norfolk, VA 23510 Counsel for Breaking Through Meda «nd Santuel Orlando, Petitioners Rosalie Pemberton Fessier, Esquire TinmberlakeSimith 25 North Central Avene P.O. Box 108 Staunton, VA 24402 Counsel for Augusta County, Defendant Seott Seaton 18 Government Center Lane Verona, VA 24482 Defendant, prose Re: Breaking Through Media LLCand Samuel Joseph Orlando, Petitioners s. Scout Seaton and Augusta County, Defendants Case No.: CL.23002339-00 (Augusta County) Dear Counsel and Dr. Seaton: ‘This case involves Virginia Freedom of Information (FOIA) cequests made by Petitioners ‘ayainst Augusta County and one ofthe members af the County Board of Supervisors Set Sesion (horeaftor “Seaton”). Potitoners filed a civil action asserting FOIA violations. The quests laldressed a closed session of the Board of Supervisors meeting held on March 20, 2023, as wel as other closed sessions, identified by topic in “Exhibit A” of the Petition, and apparently conducted between January 21, 2020, and June 2, 2023. All the subject clesed sessions were soeretly recorded by Seaton. The recordings have been tumed over to the County, and the secondings constitute public records of the Counly. Petitioners seek release of those reconlingsOn rE OUA Rests wete not timely responded to by Defendant, constituting 3 iti (OA violation. The request was made directly to Seton, who filed ofan U5,is FOIA compliance oficer ofthe County. The County ha apllished prose ming the rar eres tee fo whom the request should be made. Had Peitioner allowed tnsceedne gy sri ubtnbed protocol, the Court infers thatthe response would have bon timely, although nat necessarily suflicient as hereafter set forth. spat eter ruling, dhe Court breaks the closed meting into two groups—the fist being the meetings set forth in the Exhibit A referred wo above (hereafter the “Extibin, meetings"), and fhe econ bsing the March 20,2023, meeting (which was also mentioned in Tah (on hereafter the “March 20th meeting”), EXHIBIT A MEETINGS Aarne the Exhibit A metings (excuding March 20), the Court hoard testimony fom item Metz. who indicated tha none ofthe elosed sessions discussed te specie topics MARCH 20th MEETING facially, the March 20th meeting and closed session is the gist of the subject case jrlfoners assert that the consoling issue is whether the Board lawfly entered eon session; siete closed sion was illegal andthe recording sought has no shield undee FOLA ant cisclosure 28 9 public record. The County asserts that it complied with the ideattied, and there was pr the closed session Applicable Law and Analysis: rere General Assembly, the provisions of the Virginia FOIA. should be Hberlly FOLK sh ek Bates OF govemmental factions, However, exemptions ote Vega ranted e nowy eosrued.! Additonal, the defendants) must prove te apie ity ‘of an exempticn by the preponderance af the evideroe, ec petite fo eter into a closed meeting is govemed by Va. Code 22-3712(A), which \was made effetive in 2017, and states "Coe: Sth eum art of Speirs, 298 Ya, 625, 5362020 sting Va Cade 422.3704)No closed meeting shall be held unless the public body proposing to convene such ‘meeting has taken an affirmative recorded vote in an open meeting approving ‘moto tha () identifies the subject matter, (i) states the purpose ofthe meeting a¢ ‘authorized in subsection A of § 2.2-3711 or other provision of law and ii cites the applicable exemption from open meeting requirements provided in subsection ‘A of § 2.23711 oF other provision of law. The maiters comtined in such motion shal be set forth in detail in the minutes ofthe open meeting. A general reference {0 the provisions ofthis chapter, the authorized exemptions from open meeting requirements, or the subject mater of the closed meeting shall not be sufficient ta satisty the requirements for holding a closed meeting. (emphasis added). ‘The Cole ease, cited by Plaintiffs counsel, has some applicability here, as wel. In thet. ‘ase, the Court looked at the plain Zanguage of the statute and beld that a gencrl reference tothe subject mater was insufiient to satisfy the statute. As Cole indicates, closed sessions ane Permitted only in certain, limited circumstances. When invoking an exemption, the procedue from Va. Code § 2.2-3712(A) nuist be entirely followed: the subject matter, the purpose, and the applicable statutory exemption of the closed meeting must be identified in an open meeting? Further, as Va, Code §2.2-3712(A) and Cofe show, a mere general reference to the subject matter, Purpose, and‘or exemption is insufticient to satisfy the requirements for entering a closed session [tis roteworthy, though, that in Cofe, the Board of Supervisors discussed an issue in the closed session tht was entirely different from the stated topic for the closed sesion, Le, {ivsatened ligation, Specifically the Board discussed whether to disband the lal library board, which iteventuslly did. In the present case, however, forthe personnel exemption forthe cleved ‘session, the County simply listed one of the subject matters as “Board of Supervisors”. That Stalement i 00 cryptic, is merely a general reference to the subject matte, and docs not contin ihe particularity {believe the statute requires, Ms. Matheay-Willard’s closing brief ison poi with this isue, and 1 adopt her argument regarding the lack of particularity in the identifcation of the “Board of Supervisors” subject matter ‘The exermptions were also invoked in regard to subject matters other than the “Board of Supervisors These were designated with more particularity than “Board of Supervisors”, hough, ‘and were not nearly as cryptie or general Accordingly, the only portion ofthe meeting that was in violation ofthe Virginia FOIA is the portion that discusses Moreli, a member of the Board of Supervisors, who was identified in the evidentiary heating See Cleo 63 (ching Vs, Coe §223712(). a7CONCLUSION ‘The County will be ordered to provide the tape or record 20th closed session involving Morell to Petitioners, of the portion ofthe Mare ‘Ther: is no need for an injunetion—1 am ordering compliance, which is sulficien, Petitioner may be entitled to attomey's fees and costs, Counsel and the pro se defendant should confer with Heather Griffin in the Augusta County Circuit Court to arrange a ime and date forthe ‘undersigned to conduct such a hearing, and for entry ofthe final order inthis ease Very Truly Yours, Sree Thomas Wilson, 1V Recalled Cite Judge uw Copy: Cour