MARIAN M. BRAGG
BOARD OF SUPERVISORS OF RAPPAHANNOCK COUNTY, ET AL.
THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY Alfred D. Swersky,
W. LEMONS, CHIEF JUSTICE
appeal, we consider whether the Circuit Court of Rappahannock
County ("circuit court") erred by dismissing a
petition to enforce the Virginia Freedom of Information Act,
Code §§ 2.2-3700, et seq.
("FOIA"), on the basis that the petition failed to
comply with Code § 2.2-3713(A) because it was not
properly supported by an affidavit showing good cause.
Facts and Proceedings
M. Bragg ("Bragg") filed an amended petition
against the Rappahannock County Board of Supervisors and its
individual members (collectively, the "Board"),
alleging that the Board "engaged in a pattern of
systematically violating the open meeting requirements of
FOIA." The alleged violations stemmed from five closed
meetings, which the Board allegedly held for the purpose of
discussing, among other things, how it would replace the
outgoing County Attorney. Bragg alleged, "on information
and belief, " that the Board violated FOIA because it
improperly discussed "public business matters"
during the closed meetings and then, after the meetings,
certified that the discussions were exempt from the FOIA open
petition, Bragg asserted that Board member Ronald L. Frazier
("Frazier") acknowledged the Board improperly
discussed certain public business matters during the closed
meetings. Frazier's full acknowledgment (the
"Frazier Acknowledgement") was notarized and filed
as an exhibit to Bragg's petition. It stated, in relevant
I acknowledge that the Board's closed session meetings .
. . included discussion of public business matters not
lawfully exempted from open meeting requirements under [FOIA]
with respect to the filling of the County Attorney position.
I acknowledge that the Board violated [Code §
2.2-3711(B)] and [Code § 2.2-3712(H)] when it decided,
resolved or voted [on the non-exempt matters] in one or more
of the  closed session(s).
I acknowledge that it was imprudent and in error to vote to
certify at the close of each of the aforesaid meetings that
the Board's closed session meetings included only
discussion of public business matters lawfully exempted from
open meeting requirements under [FOIA] with respect to the
filling of the County Attorney position, and to the extent
non-exempt business was discussed . . ., it was error on my
part to fail to state the substance of the departure from the
requirements of [Code § 2.2-3712(D)].
addition to the Frazier Acknowledgment, Bragg also filed an
"Affidavit and Verification in Support of Petition for
Enforcement of Virginia Freedom of Information Act" (the
"Bragg Affidavit"). The Bragg Affidavit was both
signed by Bragg and notarized. It stated:
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.
(emphasis in original).
Board responded to the petition by filing a demurrer, plea in
bar, and motion for summary judgment and dismissal. The
circuit court issued a letter opinion on March 15, 2017, in
which it granted the Board's motion to dismiss. The court
held that "[t]here [was] a procedural defect in the
initiation of the  proceedings" because the petition
was not supported "by an affidavit showing good cause,
" as required by Code § 2.2-3713(A). The circuit
court found that the Frazier Acknowledgment was not a proper
affidavit because "[t]here [was] no showing that the
document was sworn and it contain[ed] no
jurat." The court further held that, even if the
Frazier Acknowledgment were in "proper form, " the
document nevertheless failed to "furnish the [requisite]
good cause" because it contradicted Frazier's prior
certifications, pursuant to Code § 2.2-3712(D), that the
closed meetings were lawful.
circuit court also held that the Bragg Affidavit was not an
"affidavit showing good cause." The court first
found that the Bragg Affidavit failed to comply with Code
§ 8.01-280 because the oath excluded the allegations in
the petition that were "stated to be on information,
" which constituted the "gravamen" of
Bragg's petition. The court further ruled that the Bragg
Affidavit was insufficient because the "petition, and
hence the affidavit, fail[ed] to set forth the basis of