PEC lawsuit confirms abuse of FOIA by Orange County for the benefit of Amazon

Posted on by Cindy Sabato

For Immediate Release

Media Contact:

Don McCown, Field Representative
The Piedmont Environmental Council
dmccown@pecva.org; 434-977-2033, x7047

Wilderness Crossing site in Orange County, VA. Credit Hugh Kenny/PEC

Orange County, VA. (Jan. 29, 2024) – The Virginia Freedom of Information Act lawsuit that The Piedmont Environmental Council filed against Orange County in October concluded last month with Orange County officials turning over the requested documents, thus avoiding a hearing in court. PEC filed the lawsuit against Orange County for improperly denying public access to documents pertaining to a rezoning request for the 2,600-acre Wilderness Crossing development. The county turned over non-disclosure agreements signed by 10 local officials, including elected members of the Board of Supervisors, “for the benefit of Amazon.com, Inc. and its affiliates,” as well previously redacted documents and a privilege log listing all withheld documents.

PEC President Chris Miller said the improperly withheld documents confirmed suspicions that Amazon Web Services is the business behind at least one aspect of the Wilderness Crossing proposal and revealed that the Virginia Economic Development Partnership (VEDP) was brokering the relationship between the County and Amazon. He said the documents also indicate that County officials failed to ask any hard questions about the amount of power or water needed to support the data centers included in the proposal.

“The contents of the documents weren’t entirely unexpected; but the outcome of this lawsuit should be a teachable moment for local officials across the Commonwealth and a reminder that Virginia’s FOIA laws stand strong. Our opinion is, Orange County officials turned over these records and avoided a court hearing because they knew withholding them was in violation of the law. The message is clear: local officials cannot operate behind a veil of secrecy, hiding important land use decisions from the public purview,” Miller said. “The information turned over to us should have been available to the people of Orange County over a year ago, before the rezoning decision was made. Unfortunately, citizens and non-governmental organizations have to resort to lawsuits to force compliance with the commonsense, democratic policy that the public has a right to know.”

PEC’s lawsuit came amidst its growing concern about the dramatic loss of public access to information regarding land use decisions, particularly around data centers. In a previous press release, PEC characterized Orange County’s withholding of non-disclosure agreements and various other documents, and the excessive redactions in documents it did receive, as a flagrant disregard of the letter and spirit of Virginia Code § 2.2-3700, which provides that “[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.”

“And yet, the records we received as a result of our lawsuit confirm that Amazon only wanted to engage with those Orange County officials who had signed NDAs, and that someone at the county level was acting as gatekeeper, excluding even planning commissioners who specifically asked to be privy to the discussions. Virginia law recognizes the public’s right to know about future land uses — which are a significant determiner of quality of life in our communities. To allow Orange County’s violation of FOIA to stand would only embolden other localities to do the same, thus undermining the democratic process even further. Our success in this case highlights the critical importance of local groups like PEC and others holding elected officials accountable to the laws of Virginia and the people of their communities.” Miller said. 

In the Town of Warrenton, PEC, Citizens for Fauquier County and local news agencies have also had to file FOIA requests to obtain significantly redacted information about Amazon’s proposed data center on Blackwell Road. Warrenton Town Council last year approved that special use permit application following years of dealings behind NDAs and private meetings with selected town council members. Earlier this year, CFFC filed a lawsuit challenging the withholding of documents in violation of FOIA and the validity of the Town Council decision. Two amicus curiae briefs were filed in support of CFFC by a total of 24 national, state and local media and transparency organizations. Litigation is ongoing, and a motion to dismiss by the town and Amazon has been denied. Meanwhile, Amazon continues to withhold even basic information from public view, including site development, landscaping, lighting, stormwater management, noise emitting equipment, and other details that could provide insight into the possible pollution, noise and other environmental impacts of the data center in Warrenton.

“We are seeing a deeply troubling pattern across the Commonwealth, particularly around data center development proposals, of local governments conducting businesses behind non-disclosure agreements and heavy redactions, keeping their community members, staff and other officials in the dark and out of the democratic process. We hope these lawsuits will send a strong message across Virginia that compliance with FOIA is not discretionary,” Miller said.

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The Piedmont Environmental Council (PEC) works to protect and restore the lands and waters of the Virginia Piedmont, while building stronger, more sustainable communities. Founded in 1972, PEC is a locally based, community-supported 501(c)3 nonprofit and accredited land trust. At the core of PEC’s approach is a focus on educating, engaging and empowering people to effect positive change in their communities.