Augusta County wins FOIA Circuit lawsuit reconsideration, March 20 recording remains private

This story is part of our ongoing coverage of the March 20 Augusta County Board of Supervisors closed session and its continuing effects on the county. To catch up from the beginning, click here .

STAUNTON – Since its last opinion, the Augusta County Circuit Court has completely reversed course on releasing a 2023 closed session recording.

Breaking Through Media LLC and Samuel Orlando previously sued Augusta County to obtain a recording of the March 20, 2023, Board of Supervisors closed session secretly recorded by Supervisor Scott Seaton. After losing the case in general district court, Orlando appealed the case.

In January, recalled Circuit Judge Thomas Wilson IV wrote Augusta County must provide the closed session recordings because the board improperly entered a closed session . The supervisors voted to appeal the decision. Before moving up to the state's appellate courts, Augusta County's attorney in the case, Rosalie Pemberton-Fessier, filed a motion to reconsider before Wilson’s opinion became the final ruling.

“In this case, the court is ordering the disclosure of what would otherwise be an exempt record on the basis of a technical procedural violation of the motion to go into closed session, not because the purpose or reason for going into closed session was improper,” reads the county’s request for reconsideration.

The county argued, “Disclosure of an otherwise exempt record is not the appropriate remedy for technical violations of this nature.”

On Feb. 28, the parties appeared in the Augusta County Circuit Court. Pemberton-Fessier expanded on the court filing, saying the closed session was “leaked” and someone identified in the recording had been “harassed” because of it.

Breaking Through’s attorneys argued the recording should still be released with county employee names redacted. Attorney Zachary Lawrence argued the county’s goal is to “protect members who have done wrong.”

“What the county has done in this action is waste countless hours of this court’s time and money derived from the hardworking people of Augusta County; they have done this to protect either [sic] those ‘plainly incompetent’ public servants who deserve little protection,” wrote defense attorney Amina Matheny-Willard in a responding court filing. “They seek to compound this harm by the filing of the motion for reconsideration and this is behavior which should be responded to in the most strident and scolding of terms. The motion is without merit.”

According to December hearing in the same case, the closed session was entered, in part, due to former supervisor Steve Morelli’s resignation.

Wilson had not heard the recording when he wrote the first letter. At the end of the February hearing, he told both parties, “I don’t know what’s in there.” Before ending the hearing, he said he would listen to it so he can make an “informed” decision.

Hearing the contents seems to have changed Wilson’s mind in the case.

“In the end, the contents of the recording, reviewed in camera by the court, establish that the closed session was an entirely appropriate personnel matter which should have been conducted in closed session, and the recording will not be provided to petitioners,” wrote Wilson in a new opinion filed March 15. “The mere fact that the county made a technical mistake/violation in going into session does not change the proper personnel closed session into one where the contents get provided to petitioners. That would violate the expectation of privacy that the subject personnel were, and are, entitled to. Accordingly, petitioners have not substantially prevailed on the merits of the case.”

Therefore, Augusta County’s reconsideration request “will be granted” by the court. The court “will not grant an injunction or order the release of the subject recording, or any part thereof, finding that it is entirely exempted.”

Attorneys fees for Breaking Through LLC were also denied. Wilson cited a lack of establishing reasonable attorney fees, paralegal costs, and the limited success of the case as reasons to deny passing attorney’s fees to the county. The invoice for Breaking Through’s attorney fees totals the cost at $21,632.45.

Lyra Bordelon (she/her) is the public transparency and justice reporter at The News Leader. Do you have a story tip or feedback? It’s welcome through email to lbordelon@gannett.com . Subscribe to us at newsleader.com .

This article originally appeared on Staunton News Leader: Augusta County wins FOIA Circuit lawsuit reconsideration, March 20 recording remains private