Citizens for Fauquier Cty. v. Town of Warrenton

81 Va. App. 363

904 S.E.2d 213

CITIZENS FOR FAUQUIER COUNTY

v.TOWN OF WARRENTON, Virginia, et al.

Record No. 0414-23-4

Court of Appeals of Virginia, Arlington.

July 30, 2024

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY, Alfred D. Swersky, Judge Designate

Michael H. Brady (Dale G. Mullen; Michelle E. Hoffer; Whiteford, Taylor & Preston, L.L.P., on briefs) for appellant.

John D. McGavin (Kara A. Schmidt; Martin R. Crim; McGavin, Boyce, Bardot, Thorsen & Katz, PC; Sands Anderson P.C., on brief), for appellees.

Amicus Curiae: Commonwealth of Virginia; Graham K. Bryant, Deputy Solicitor General (Jason S. Miyares, Attorney General; Erika L. Maley, Solicitor General; Michael Dingman, Assistant Solicitor General, on brief), for appellees.

Amici Curiae: The Reporters Committee for Freedom of the Press and 22 Media and Transparency Organization (Lin Weeks; Bruce D. Brown; Katie Townsend; Gunita Singh; Reporters Committee for Freedom of the Press, on brief), for appellant.

Amicus Curiae: Virginia Coalition for Open Government (Spencer Gall; Tyler Demetriou; Deborah Murray; Southern Environmental Law Center, on brief), for appellant.

Present: Judges Malveaux, Raphael and Frucci

OPINION BY JUDGE STUART A. RAPHAEL

The petitioner here seeks mandamus against the Town of Warrenton under the Virginia Freedom of Information Act to obtain emails relating to an Amazon datacenter project. Petitioner challenges the Town’s decision to withhold more than 3,100 emails based on several statutory exemptions. One exemption permits withholding the "[w]orking papers and correspondence of … the mayor or chief executive officer of any political subdivision." Code § 2.2-3705.7(2) (emphasis added). Reading the or to mean and, the Town claimed the exemption for both its mayor and its town manager (the Town’s chief-executive officer). To avoid having to review all the withheld emails, the trial court invited the town attorney, over petitioner’s objection, to choose a small sample of the emails that would be representative of the larger set. The court then reviewed those emails in camera, without requiring the Town to provide any information to petitioner about what was in the emails, how they were chosen, or why they were representative. Based on that sample, the trial court dismissed petitioner’s mandamus action, concluding that all exemptions invoked by the Town were appropriate for the entire set of withheld emails.

Finding that the trial court committed two errors, we reverse and remand for further proceedings. We hold that the correspondence exemption in Code § 2.2-3705.7(2) provides a single exemption for political subdivisions, like the Town, in which the mayor is not the chief-executive officer. We further hold that the trial court erred when it permitted the Town to pick the sample for in camera review without providing any evidence to show that the sample was representative.

Background

Petitioner Citizens for Fauquier County is a non-stock corporation formed in 1968 "with the mission to preserve the natural, historic and agricultural resources of Fauquier County." In 2022, petitioner grew "deeply concerned" about a proposal by Amazon to construct a 220,000 square-foot datacenter "at the gateway to the Town [of Warrenton], where Blackwell Road and Lee Highway meet." The project required a special-use permit.

Petitioner submitted two public-records requests to the Town—one in July and another in October 2022—seeking (among other things) information about the Amazon proposal and correspondence between town officials and Amazon. The Town produced certain records but withheld others based on the following statutory exemptions:

• "Working papers and correspondence of … the mayor or chief executive officer of any political subdivision," Code § 2.2-3705.7(2);

• "[I]nformation protected by the attorney-client privilege," Code § 2.2-3705.1(2);

• "Proprietary information, voluntarily provided by private business pursuant to a promise of confidentiality from a public body," Code § 2.2-3705.6(3); and

• "Personnel information concerning identifiable individuals," Code § 2.2-3705.1(1).

In November 2022, the Town informed petitioner that "3,142 [e]mails or email chains" were being withheld under these exemptions. Petitioner claims that the "total" number of records withheld was 3,150, Pet. ¶ 26, which the Town admitted in its answer.

In pre-litigation discussions, the Town took the position that the working-papers-and-correspondence exemption in Code § 2.2-3705.7(2) allowed it to exempt the correspondence of both the mayor and the town manager, whom the Town charter identifies as the "chief executive officer." 1964 Va. Acts ch. 47, at 79 (§ 6-1). Petitioner responded that the Town could claim only one exemption and that, according to a 2002 opinion of the staff of the FOIA Advisory Council—Advisory Op. AO-02-02 (Oct. 30, 2002), https://perma.cc/3R9Z-7ACH—the exemption covered only the town manager (the chief-executive officer). The Town clerk was not moved, responding that the 2002 opinion "is clearly contrary to the plain meaning of the statute."

Dissatisfied with that response, petitioner filed a verified petition for mandamus. Petitioner disputed the Town’s claim to two exemptions under Code § 2.2-3705.7(2). Petitioner also claimed that the Town was abusing the exemption by applying it to emails on which the chief executive was merely copied or that were received as part of a broader distribution. It further claimed that the exemption was waived if the documents had been further disseminated "to various nongovernmental, nonexempt, third parties."

The trial court conducted a hearing on January 6, 2023, receiving without objection the pre-litigation correspondence between the parties. Neither party offered any other evidence. The town attorney informed the court that, the day before the hearing, the Town had voluntarily produced the eight emails of the mayor that the Town had withheld under the correspondence exemption. But the Town insisted that it was entitled to claim the exemption for both the mayor and the town manager.

When the trial court asked for a general description of the withheld documents, the town attorney proffered that they were emails about the steps for Amazon to gain approval for the proposed datacenter, the special-use permit that was required, and the tax revenue that might be generated by the project. The trial court then invited the town attorney to provide five exemplar emails for each exemption claimed so the court could review them in camera.

Petitioner’s counsel countered that the Town had not carried its burden to prove that the documents were exempt. Petitioner also voiced concern about letting the town attorney pick the sample and about the small sample size. That process would leave petitioner "entirely in the dark" about what was being considered. The court asked, "How about 10 of each category, … if that makes you feel any better?" The court made clear that it was "not going to read 3,100-plus emails." The court added, "I trust Mr. Crim [the town attorney] to get me examples. Make it 10, Mr. Crim." Petitioner’s counsel proposed that the court allow him to review the withheld documents under an attorney-eyes-only restriction. The trial court reserved considering that, saying it wanted to "look at them first and … decide."

The town attorney submitted the examples under seal for in camera review. Those documents remain under seal here. The emails themselves comprise 142 pages. The town attorney represented that the emails spanned five subjects: "Town Manager Correspondence," "Attorney Client Privilege," "Taxes," "Trade Secrets," and "Personnel Correspondence." The Town did not submit an index to identify the persons in the to, from, or cc fields. Nor did the Town submit a letter or affidavit explaining how the Town chose the samples or why they were representative of the larger set.

In a supplemental brief, petitioner argued that the court should evaluate whether the correspondence exemption had been waived for emails that were disseminated to others. Petitioner also renewed its objections to the way the court was conducting the in camera review. Petitioner noted that the process gave the town attorney "complete power to cherry-pick" the sample and that the sample was not statistically representative. Petitioner proposed several alternative methods, such as requiring the town to supply a Vaughn index of the withheld documents, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); reviewing a "random sample" supported by an accompanying affidavit; or permitting attorney-eyes-only review by petitioner to enable the parties to jointly submit a representative sample.

At the next hearing, the trial court expressed concern about whether the correspondence exemption applied to the mayor or the town manager. The court discerned no standard to choose between those two officers. The court was "shocked" at the lack of authoritative guidance on the question.

In a supplemental response, the Town argued that "[n]either the FOIA Council nor the court has the power to require a local government officer to claim or designate ownership of an exemption." To the Town’s thinking, that compelled only one conclusion: "Both the mayor and the chief executive officer of the Town (i.e., the Town Manager) are entitled to the exemption for correspondence and working papers."

The trial court agreed with the Town. It issued a letter opinion concluding that or means and in "the mayor or chief executive officer" exemption in Code § 2.2-3705.7(2). The court reasoned that, because there was no "standard" telling courts how to choose between the mayor and chief executive, the exemption must apply to both. And having reviewed the sample emails in camera, the court found that the Town’s claimed exemptions were "appropriate." The court "recognize[d] the small sample size" but saw "no indication of bad faith on the part of the Town or its counsel" in choosing the...