Kevin Ramundo

Kevin Ramundo, president of Citizens For Fauquier County, speaks out against the proposed Amazon data Center during a Warrenton Town Council meeting on Nov. 9. 

Citizens for Fauquier County and the town of Warrenton are expecting a judgment soon from the Fauquier County Circuit Court regarding the environmental nonprofit’s request to review over 3,000 emails between former Town Manager Brandie Schaeffer and Amazon representatives under the Freedom of Information Act.

The lawsuit, filed by Citizens for Fauquier County legal counsel Michael Brady of Whiteford, Taylor & Preston L.L.P. in late December, accused Town Clerk Stephen Clough of violating the Virginia Freedom of Information Act by withholding thousands of “documents and communications” related to the proposed Amazon data center development behind the Country Chevrolet.

According to the nonprofit's suit, Clough claimed the 3,150 emails, 3,142 involving Scheaffer and eight involving Mayor Carter Nevill, fall under “working papers and correspondence” of the “mayor or chief executive officer,” which are immune to FOIA requests.

Last week, before Friday's hearing, Nevill released the eight documents in which he discussed the following topics with Amazon representatives:

  • If the propose data center could double as a solar farm
  • Thanking Becky Ford, manager with Amazon Web Services Economic Development department, for meeting with him and encouraging one-on-one conversations with the rest of Town Council
  • A request to meet with AWS in-person to discuss “Dominion Energy power line proposals”
  • A forwarded email to Ford from Piedmont Environmental Council Director of Land-use Julie Bolthouse, who inquired with the mayor about Amazon’s recent purchase of a 41-acre property behind the Country Chevrolet and a “load letter” from the tech company to Dominion Energy

After listening to oral arguments from CFFC and the town of Warrenton’s attorneys Friday, Circuit Court Judge Alfred Swersky of Alexandria asked to review a small portion of the 3,142 emails involving Schaeffer before he made a final ruling.

During the hearing, Brady and Warrenton Town Attorney Martin Crim argued about 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.”

Brady argued the law does not dually shield Schaeffer and Nevill from a FOIA request. Instead, the use of the word “or” designates only one town executive may be eligible for an exemption.

Schaeffer left the town last year to go work for Amazon.

“The town takes the position that ‘or’ means ‘and,’” Brady said during the hearing. “If you want not to give stuff, that's the interpretation.”

Swersky expressed skepticism over Brady’s argument and asked whether the same logic would apply if an organization or person presented a FOIA request to “the Office of the Governor, the Lieutenant Governor, or the Attorney General.”

“Do I interpret it differently if it's the town executive,” Swersky asked Brady during the hearing.

Brady told Swersky he believed there were “many interpretations of the law,” but noted in this case, the law “cut in [Citizens for Fauquier County's] favor.”

In a court briefing filed by the town of Warrenton on Jan. 5, Crim argued the nonprofit’s position relies too heavily on a 2022 opinion from the Virginia Freedom of Information Advisory Council, which states “a locality may not switch back and forth as to which public official may exercise the exemption.”

Crim told Swersky that the advisory council’s opinion was “grounded in a misinterpretation of the law” and, therefore, should have “no force of persuasion in this circumstance.”

“Failure to follow an advisory opinion does not violate the law,” Crim said during the hearing.

Crim also argued the suit conflates the “correspondence and working papers exemption,” which he claimed are “two separate categories of documents.”

“The petitioner asserts that the Town cannot withhold documents under the correspondence exemption unless they meet the restrictions on ‘working papers’ in the statute,” Crim stated in the town brief. “Petitioner offers no basis for this position, and no basis for it exists for it in this statute.”

Brady argued Crim had taken a “broad view of working correspondence” and that not every email a town executive is copied on falls within the scope of the law.

Swersky asked Crim what information the emails “generally” contained. Crim said it was mostly correspondence between Schaeffer and Amazon about the next steps regarding the company’s application for a special-use permit to build a data center on its property.

Crim noted that the issue of tax revenue was among the topics discussed in some of the email chains.

Swersky asked Crim for several examples of correspondence between Schaeffer and Amazon he could look at before making a ruling. Swersky noted he would only look at some documents because it would take too long to read through 3,142 emails.

“That’s the only way I know how to do it,” Swersky said.

Brady asked the judge if his firm could also access whatever documents Crim provided to the court.

“It’s concerning that we don’t know what was exempted and why,” Brady said.

Swersky said he would look at the documents before allowing Brady to access them.

A second hearing date has not yet been scheduled.

(1) comment

Sam

The law's requirements are one thing. Good governance is another, and good governance requires transparency. Why would citizens re-elect those who would spend our money and our time to keep our information from us?

Carter, we've supported you, but this crosses an important line. It is now time for change, the sooner the better. I'd've never guessed you'd do this, but you have and so it is time to resign and make way for those who will run our government with us watching.

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