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Orange County could be sued for alleged FOIA violations

What first started as concerns over how new development in Orange County could damage the environment has turned into a larger conversation about government transparency across Virginia.

And it could mean Orange County will have to defend itself in court.

On Nov. 10, the Piedmont Environmental Council, a nonprofit group that advocates for protecting the land and waters of Virginia, filed a lawsuit against the county alleging it violated the Virginia Freedom of Information Act by denying it access to “documents pertaining to a local rezoning application.”

Approved in April, that application allowed for the rezoning of 2,500 acres in the Germanna-Wilderness area, the largest rezoning effort in the county’s history.

Piedmont Environmental Council says the proposed development, known as Wilderness Crossing, would be built on gold mines that have never been cleaned of contaminants such as mercury, arsenic, cadmium and lead.

“PEC recommends that Orange County seriously consider how the toxic legacy of gold mining at this location could impact the health, safety and welfare of future residents and downstream communities,” reads a post on its website.

Additionally, the group has concerns about how industrial development could affect local taxes, infrastructure, traffic and the habitat.

And it wanted to learn more about what exactly was actually going to be built on the land.

So it submitted a Freedom of Information Act request to get details.

The group has recently learned that the development will be Amazon data centers, but that was only known after it threatened a lawsuit. When the Piedmont Environmental Council made its original FOIA request, the county provided few specifics.

“In its initial responses, Orange County redacted sender and recipient names and random words in emails without explanation,” reads a PEC statement announcing its decision to sue. And the county would not release nondisclosure agreements, meaning the public could not learn who was buying the land or what it would be used for.

“What exactly is being proposed for this Wilderness Crossing project?” Don McCown, a land use field representative for the council, wanted to learn. “Can you tell us how many buildings? How tall are they? What’s your plan? Details like that.”

Orange County would not provide those details, presumably because it had signed an NDA with Amazon.

“It’s our position that’s not how good government is supposed to work. And that’s kind of the whole point of FOIA. Government is not supposed to keep these things secret,” McCown told The Daily Progress.

While information about the project can be protected by the NDA, the council argued that the NDA itself should at least be shared with the public. That way everyone would know who signed the NDA, which would give an idea of which private group was building on the land (in this case Amazon) and which government official signed the agreement.

“If the Orange County Board of Supervisors is allowed to hide critical information on the largest rezoning in county history, using nondisclosure agreements to withhold even a description of the types of information being kept secret, it sets a precedent that will, in effect, allow governing decisions to be conducted behind a veil of secrecy, undermining the democratic process for generations to come,” Piedmont Environmental Council President Chris Miller said in a Nov. 10 statement.

Additionally, the council asked for a “privilege log,” which McCown said a government entity must provide when it denies access to certain documents under FOIA law.

“It’s a description of what they’re withholding and the reason why,” McCown said. “It’s supposed to cite the exceptions from FOIA they’re claiming. We never got that.”

But the lawsuit appears to have made the county more willing to divulge information. An open court hearing was scheduled for Nov. 17. One day before, the Piedmont Environmental Council and Orange County reached an agreement: The county would allow PEC to view the nondisclosure agreements.

“In addition, the county has agreed to re-review other requested documents referenced in our complaint and to provide us, by Dec. 8, a privilege log that lists those withheld documents,” PEC spokeswoman Cindy Sabato wrote in an email last week.

In response to the county’s decision and its self-imposed Dec. 8 deadline, the council decided to defer the hearing. At least for now.

“Them releasing the NDAs to us was the first part of our request, so we deferred hearing to give them time to produce the privilege log,” McCown said, calling it a “positive development.”

“Orange County seems to have realized they at least can’t withhold an actual NDA document from the public,” he said.

That doesn’t mean the lawsuit is dead. Piedmont Environmental Council attorneys are still waiting to receive the privilege log.

“At that point we’ll take a look at what they do provide and if we still question their rationale for withholding anything further, then we’d make decision at that time,” McCown said on the future of the lawsuit. If the council finds the county still has not provided enough information, the parties may have to go to court.

And that could have big implications for Virginia.

More and more data centers are being proposed across the commonwealth, and those large facilities can have large impacts on the surrounding environment.

“It’s a highly impactful land use. The size of structure, the height of structure, not to mention the issues with how much water they need to cool the data centers,” McCown said. “It requires huge amounts of energy which results in the need for new or larger transmission lines and an increased electricity demand. That makes it difficult to keep up with the climate goals the Virginia Clean Economy Act has mandated.”

“We have just seen around our region that this is becoming kind of a common practice, where data center developers or localities will execute NDAs which prevents the public from finding out details about these projects,” McCown said.

So if the Piedmont Environmental Council does take Orange County to court, a final ruling could impact similar projects in other parts of the commonwealth.

In the meantime, the council is hoping the county will provide all documents requested so the public can learn more about what exactly is planned for the 2,500 acres of land.

“We don’t know for sure there are other documents that they have withheld. They may have turned over everything,” McCown said. “But what they’re supposed to do is provide us a list of what’s been withheld and under what FOIA exception and why that’s within scope of law. And we can disagree that they’re improperly applying the exception.”

Mark Johnson, chairman of the Orange County Board of Supervisors, declined an interview request from The Daily Progress.

“I have no comment to make on the issues," he said.

Orange County government offices did not immediately reply to a request for comment from The Daily Progress.


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