Circuit Court judge denies Citizens for Fauquier County's records request for emails related to Amazon data center

Judge Alfred Swersky announced Tuesday he plans to issue a formal opinion denying Citizens for Fauquier County’s request to obtain over 3,000 emails sent between town officials and Amazon representatives.

The request is related to Amazon's proposal to build a 220,000-square-foot, single-story data center in Warrenton at the intersection of Blackwell Road and Lee Highway behind Country Chevrolet. A vote on the proposal is expected Feb. 14.

“Due to time constraints, I am advising you of my opinion in this matter by email to be followed by a formal opinion letter,” Swersky told the Citizens for Fauquier County nonprofit and the town of Warrenton’s attorneys in an email.

“For the reasons I expressed at the hearing held on January 25, 2023, the relief sought by the Petitioner will be denied,” he added. “I interpret the word 'or' in Title 2.2, Section 3705.7 to mean 'and.' The statute, if interpreted otherwise, would be confusing and without any guidance as to which party would get to choose which officer would be exempt, and there is an absence of any guidance to a court as to which officer would be exempt.”

The nonprofit's lawsuit against the town of Warrenton alleged Town Clerk Stephen Clough violated the Virginia Freedom of Information Act by withholding 3,150 emails -- 3,142 by former town manager Brandie Schaeffer and eight by Mayor Carter Nevill -- which Clough said are immune to Freedom of Information Act requests under the state’s executive privilege clause.

CFFC requested the court expedite the hearing, arguing Schaeffer’s emails are a matter of public interest and should be made public before the Town Council votes on Amazon Data Services' request for a special-use permit to build the data center. A public hearing and possible vote is scheduled for Feb. 14 in the Fauquier High School auditorium.

Schaeffer left her position in Warrenton in July to go work for Amazon Web Services, the tech giant's data center arm.

In early January, Nevill handed over the eight emails to the nonprofit days before the town was scheduled to appear in court on Jan. 10.

Additionally, the nonprofit's legal counsel, Michael Brady of Whiteford, Taylor & Preston, said in a brief to the court that the town misunderstood the meaning of the conjunction “or” in Virginia Code 2.2-3705.7, which reads:

“Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in the Commonwealth.”

Furthermore, the nonprofit contended that the “scope of the withholding” was too broad, and emails received by the town’s executive officer do not qualify as “working papers.”

Brady argued the law does not dually shield Schaeffer and Nevill from a Freedom of Information Act, or FOIA, request. Instead, the word “or” designates that only one person may be eligible for an exemption, not the mayor and town manager.

Town Attorney Martin Crim told Swersky he should dismiss the case because the nonprofit had “misinterpreted” the law, arguing the nonprofit had no basis for its position.

Swersky met with the nonprofit and town’s legal counsel on Jan. 25 and asked for more clarity on any legal guidance or precedent that granted him the power to determine who is the chief executive.

Swersky said he would review several examples of emails the town withheld before issuing his opinion. It is unclear if the town’s legal counsel allowed the nonprofit to review sealed copies of the emails provided to the judge.

According to Swersky’s email, he said the “court cannot rewrite the statute” without guidance from the state legislature.

“Further, I find that the withholding of the documents under the chosen exemptions by the town are appropriate as examples of the types of documents that are being withheld,” Swersky said. “I recognize the small sample size; however, there is no indication of bad faith on the part of the town or its counsel. The documents will be held under seal by the Clerk until further order of this or any other appropriate court.”

Swersky denied Citizens for Fauquier County's claims for relief, including the following:

• The town produce all records not exempt by the law.
• The town waive all processing fees for gathering the records.
• For Clough to incur a $2,000 civil penalty “for each public record found to have been withheld in violation of VFOIA."
• The town to pay CFFC’s legal fees.
• Grant additional “legal and equitable relief.”

Mayor Carter Nevill said in a press release he appreciated the “hard work of staff in shouldering the burdens of this lawsuit” and thanked Swersky.

“I have always been confident in the Town’s faithful application of and adherence to the Virginia Freedom of Information Act,” he said.

Kevin Ramundo, president of Citizens for Fauquier County, told FauquierNow that his organization “continues to believe that our case is strong and laying out how the town illegally withheld 1000s of documents regarding its communications with Amazon.”

“We will withhold any further comment about the decision or options available to us until the judge provides a formal opinion,” he added.

Swersky said he would forward a formal letter to the nonprofit and the town of Warrenton’s attorneys “in the near future.”