ANALYSIS OF MAY 17, 2018 SUPREME COURT OPINION
(Posted May 17, 2018) The long losing streak is over; a citizen wins an appeal in a Freedom of Information case for the first time in several years. The decision in Bragg v. Rappahannock County is unanimous, and the chief justice provides the story.
As my readers no doubt know, FOIA requires that meetings of government bodies such as boards of supervisors must occur in public. There are exceptions, for which the body can recess behind closed doors to what’s generally called executive session. But when a body does that, it can only discuss specifically exempted matters — for example, advice from its lawyers on whether to settle pending litigation. Upon its return to open session, the members must certify that the board discussed only exempt matters in the executive session.
Bragg is a citizen who got word that on several occasions, the county board had discussed nonexempt matters in executive sessions. She secured a smoking-gun memo from one of the supervisors, acknowledging that the board had indeed discussed in private matters that should have been open to the public. Bragg filed a petition against the board and attached the acknowledgement as an exhibit.
The board filed a motion to dismiss, claiming that the petition was improper in form, since it has to be accompanied by an affidavit showing good cause. The board insisted that the language of the notarial certificate was inadequate. Here’s what it said:
THIS DAY personally appeared before me, the undersigned Notary Public, Marian M. Bragg, who, upon being duly sworn by me, stated under oath that all of the allegations in the attached Petition for Enforcement of the Virginia Freedom of Information Act are true and correct, except to the extent therein stated to be on information, and to such extent she believes them to be true.
The board argued that this “on information and belief” stuff was wholly inadequate for a FOIA petition, and besides, the petition didn’t indicate the source of the information. A judge designate bought that argument and dismissed the petition.
To predict how the appeal came out, all you need to know is this statutory tidbit: “when an affidavit is required in support of any pleading or as a prerequisite to the issuance thereof, it shall be sufficient if the affiant swear that he believes it to be true.” Code § 8.01-280. There was nothing wrong with the notary’s certificate. And the source of Bragg’s information, assuming that’s required in a petition, is fairly obvious: the board member’s acknowledgement. In a brisk 7 1/2 pages, the justices send this case back to Little Washington for a hearing on the merits.