Augusta County Board of Supervisors demands Scott Seaton hand over closed session recordings

VERONA — The Augusta County Board of Supervisors unanimously passed a resolution Wednesday night to assert its rights to the possession, custody and control to public records from Wayne District supervisors Scott Seaton. Those records are the recordings Seaton took of closed sessions of the board and any associated communications and notes related to those recordings.

The vote was unanimous during the special called meeting because Seaton was absent from the proceedings. In a phone call with The News Leader, Seaton said that he was currently out of the state visiting family, and that he believed the resolution was illegal.

"The board's going to do what the board's going to do," Seaton said, adding, "Me being there, getting away from my family? No, family’s important to me."

At their last meeting, members of the board asked Seaton to turn over the recordings to the county to determine what the contents were and to confirm the dates on the censure resolution against Seaton. Seaton told The News Leader he would only turn the records over to the board with a court order.

What's in the resolution?

The resolution passed by the board cited the Virginia Freedom of Information Act (FOIA), which defines public records as "all writings and recordings that consist of letters, words, or numbers, or their equivalent" in whatever form they may take including notes, photographs, and other methods of data compilation in the possession of a public body or its officers.

The board believes that means the recordings of closed sessions are public records, and therefore belong to the county. The resolution does state that the records may be lawfully exempt from disclosure to any person not in attendance at the closed sessions

The board is requesting any and all recordings, notes, and communication related to the recordings dating back to Jan. 1, 2020 when Seaton first took office. The resolution gives Seaton seven days to provide the records, and authorizes board chair Michael Shull to submit a FOIA request to Seaton on behalf of the board.

It's currently unclear if Seaton is being asked to turn over copies of his recordings, notes, and communication or the actual files that are on his device.

Why did the board take this action?

"This is to gain information on what is out there," said Shull. "Not only for our protection, but it’s also for the protection of these personnel that’s in this building."

Shull said the decision was to protect the taxpayers of Augusta County when it comes to personnel, legal issues, and potential business activity in the county. He pointed at potential businesses coming into the area, where county staff are required to sign disclosure agreements to not share sensitive information for prospective businesses. If those records were made public, Shull said that businesses would not want to work with Augusta County.

He made the same reference in terms of appointments to the county's boards and commissions. Shull believed that if discussions on appointments were done in open session, fewer people would be willing to apply to be on those boards.

According to Shull, Seaton indicated to the board previously that he would continue to record the closed sessions, and cites that as a reason for why the board was reticent to enter closed session.

The board as a whole had very few comments on the resolution.

"If Dr. Seaton would have been here tonight, I think the board would have made comments and I think that’s why the board is kind of holding off until probably the next meeting when we make comments," Shull said.

Shull took issue with the potential security of the phone Seaton used to record the devices, which Seaton received through his job at the University of Virginia. He said that the files could be on a server somewhere that an information technology professional would be able to access them.

Seaton: 'they approved an illegal resolution'

"I was made aware that they approved an illegal resolution that has no basis in Virginia law," Seaton told The News Leader. "In fact, it actually contradicts Virginia law." He questioned whether county attorney James Benkahla had written the resolution, asking, "Why is he advising bad stuff to six members of the board and not equally representing seven members of the board?"

County administrator Tim Fitzgerald indicated to The News Leader that Benkahla had largely been handling the resolution for the board.

Seaton specifically referenced an opinion from the Virginia Freedom of Information Advisory Council in Haymarket back in 2010. In that opinion, the mayor of Haymarket demanded members of the town council hand over documents and notes taken during a closed session.

In the opinion, executive director Maria Everett opined, "Generally, it is my understanding that sometimes public bodies distribute materials considered confidential or sensitive to members for use during a closed meeting and then take them back at the conclusion of the meeting. While this practice appears to be widespread and long-standing, FOIA does not address it."

Seaton's contention is that FOIA is for the public's access to government processes, not the government's access to his notes. He said that the obligation to maintain these records belonged to him, and the county had no authority to demand and maintain his records. Virginia is a one-party consent state for audio recording, and Seaton contended that recording government officials doing government work couldn't be unethical. He plans to continue recording closed sessions.

"Most of these meetings, except for the personnel exemption, need to be released," Seaton said. His stance is that the county has rarely gotten solicitations from businesses to move into the area, and that the personnel and business exemptions did not constitute a bulk of the closed sessions.

"Particularly the ones about me and a former board member," he said, "We're elected officials. We need to have lots of sunshine on what we do in our government roles."

He said that he would release the records to a member of the public through a FOIA request, but he would maintain his own copies.

"If they want to release that information, I’m responsible for delivering it for release," he said, maintaining his stance that he would only turn the records over to the board with a court order or for a FOIA request from a member of the public. "Their intent is to have sole custody and care of these files. They don’t have that right."

Seaton is currently in the process of retaining legal counsel.

"I think we have a board that’s just out of control and not realizing the expenses that they are going to incur possibly for themselves, possibly for taxpayers," Seaton said, adding later, "I was kind of hoping I’d have at least three sensible people step up and say 'No, we don’t need to do this.' But apparently we don’t have three sensible people on the board."

—Akhil Ganesh is the Government Reporter at The News Leader. You can contact him at aganesh@newsleader.com and follow him on Twitter @akhildoesthings.

This article originally appeared on Staunton News Leader: Augusta County Board of Supervisors demands Scott Seaton's closed session recordings via FOIA