Judge dismisses FOIA petition against supervisors

Konick calls decision ‘seriously flawed’

On March 15, Judge Alfred D. Swersky, a substitute judge in Rappahannock’s 20th Judicial Circuit, issued an opinion letter dismissing a petition for a declaratory judgment and enforcement of Virginia’s Freedom of Information Act (FOIA) by the county’s board of supervisors.

In her petition issued last September, local llama farmer Marian Bragg alleged that the board and four of its five individual members violated FOIA during the closed portion of several supervisor meetings last summer and fall by improperly discussing topics that were not exempt from the FOIA law.

According to meeting minutes, the reason for the closed-door sessions was to discuss hiring a replacement for County Attorney Peter Luke. Certain personnel discussions are considered sensitive and are exempt under FOIA, meaning they can be held outside the public’s view.

In addition, Bragg’s petition maintained that the supervisors’ procedures for going into and reporting out of the closed sessions were improper.

In granting the supervisors’ request to dismiss the petition, Swersky cited “a procedural defect in the initiation of these proceedings,” specifically not complying with a statutory requirement that the petition “be accompanied ‘by an affidavit showing good cause.”

Konick reacted to the opinion in an email received last Monday,

“It’s so unfortunate,” he wrote, “that instead of going to hearing and getting a ruling on whether or not the Board’s closed session meetings last year were lawful under the Freedom of Information Act, the County decided to waste some $30,000 in legal fees on procedural posturing that resulted in a ruling on a purported technical defect in the pleadings – not on ANY of the merits of the case.

“We believe the Judge’s decision was seriously flawed and have accordingly filed a Motion for Reconsideration. My client is confident that what we consider to be the errors in the Letter Opinion will be rectified and that the public’s right to know what its government is doing will be upheld.”

Upon receipt of the Motion for Reconsideration, Swersky instructed Commonwealth’s Attorney and County Attorney Art Goff and former County Attorney Peter Luke to submit responses to the motion by March 30. The judge left the door open for possible oral arguments at a later date.

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About Patty Hardee 169 Articles
Writer, consultant, actor, director, recovering stand-up comic, Patty covers the county’s courts and other topics of interest for Rappahannock News. She lives with her grape-growing husband Bill Freitag in Flint Hill.