Warrenton, VA (September 11, 2023) - - - Citizens for Fauquier County (CFFC) has filed its appeal of a circuit court ruling which allowed the Town of Warrenton to withhold thousands of public records related to the Amazon Data Services’ data center special use application. The circuit court reached that decision by construing a narrow Virginia Freedom of Information Act (VFOIA) exemption too broadly, and not requiring the Town prove that the withheld public records were exempt. The Town approved the special use permit on February 15th, 2023.
CFFC filed its appeal of the VFOIA ruling to the Court of Appeals of Virginia on September 1, 2023. The brief not only objected to the circuit court’s decision to deny the public records requests, it discussed how the trial court failed to live up to the promise of the VFOIA to “afford every opportunity to citizens to witness the operations of government,” and thereby ensure that “the public is to be the beneficiary of any action taken at any level of government.”
On Friday, September 8, two friend of the court briefs were filed in support of CFFC on behalf of a total of twenty-four (24) national, state and local media and transparency organizations. One amicus curiae brief was submitted by The Virginia Coalition for Open Government (Coalition) and the other by The Reporters Committee for Freedom of the Press (Reporters Committee) on its own behalf and for twenty-two (22) other media and transparency organizations (Full list attached.)
In commenting on the appeal, CFFC President, Kevin Ramundo, said, “CFFC undertook this litigation because the Town of Warrenton was violating the VFOIA and undermining the public interest by withholding public records related to the most consequential land use decision in Warrenton’s history. In matters large and small, CFFC believes that government must be open and transparent if it is to be accountable to its citizens and we are very appreciative that so many prominent organizations have agreed and are now supporting this effort to restore the promise of governmental transparency and accountability.” He added, that, “The Town appears to continue to violate these principles as evidenced most recently by its unprecedented redaction of 45 pages of Amazon’s site development plan for its data center.”
The brief by the Reporters Committee described the decision by the Fauquier County Circuit Court as being “in direct conflict with FOIA’s command to narrowly construe any exemptions to disclosure,” a “cornerstone” of FOIA. The Reporters Committee agreed with CFFC that the Town had not carried its burden of showing the withheld public records were properly exempt, noting that on the record before the circuit court, it “could not have determined that key limiting principles of the exemption were met.” The Reporters Committee wrote that the decision “interferes with the ability of journalists to cover issues squarely of public concern, such as the interaction between local government and private corporations.” The Reporters Committee urged the Court of Appeals to reverse the lower court decision and “rule in favor of disclosure.”
The brief by the Virginia Coalition for Open Government added that the Circuit Court disregarded key provisions of the VFOIA, including the provision that places the burden of proof on the government to establish that an exemption applies “to encourage transparency and discourage gamesmanship.” The Coalition noted that the Circuit Court’s extraordinary approach of allowing the Town to select what the judge would review in determining the legitimacy of what was withheld without involvement by CFFC or any “guardrails on how those selections should be made” allowed the Town “to referee its own withholding,” a “scheme that is vulnerable to manipulation.” The Coalition, noting that this “error risks infecting other cases regardless of which exemption is at issue,” urged the Court to reverse and so “stop that mischief before it starts.” The Coalition is represented by attorneys from the Southern Environmental Law Center.
CFFC is represented in this matter by attorneys from the Richmond, Virginia office of Whiteford, Taylor & Preston L.L.P. The firm consists of over 200 lawyers across 17 offices nationally.
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Founded in 1968, Citizens for Fauquier County is the oldest non-profit dedicated to preserving the natural, historical and agricultural resources of Fauquier County and to protect the county’s unique quality of life through education, leadership and advocacy. The organization is non-partisan and represents hundreds of families and individuals active in conservation efforts.
The Virginia Coalition for Open Government engages citizens to monitor the actions of their state and local governments as part of the democratic process. The coalition is a non-profit, non-partisan membership organization that presses for access to public records, meetings and judicial proceedings.
The Reporters Committee for Freedom of the Press was founded by leading journalists and media lawyers in 1970 when the nation’s news media faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources. Additional amici are news media organizations, publishers, and groups dedicated to protecting the freedom of information interests of the press and the public.
Press Contacts:
CFFC: Kevin Ramundo, ramundok@gmail.com; 704-965-2424
VCOG: Megan Rhyne, mrhyne@opengovva.org; 540-353-8264
Supporting Amici:
Virginia Coalition for Open Government
Reporters Committee for Freedom of the Press
Piedmont Journalism Foundation
Axios Media, Inc.
Fauquier Times
Freedom of the Press Foundation
Gannett Co, Inc.
The Media Institute
National Freedom of Information Coalition
National Newspaper Association
National Press Club Journalism Institute
The National Press Club
National Press Photographers Association
The News Leader Association
News/Media Alliance
Nexstar Media Inc.
Online News Association
Prince William Times
Society of Environmental Journalists
Society of Professional Journalists
TEGNA Inc.
Tribune Publishing Company
Tully Center for Free Speech
Virginia Press Association