PRESENT: All the Justices

MARIAN M. BRAGG
                                                            OPINION BY
v. Record No. 171022                             CHIEF JUSTICE DONALD W. LEMONS
                                                            MAY 17, 2018
BOARD OF SUPERVISORS OF
RAPPAHANNOCK COUNTY, ET AL.


                FROM THE CIRCUIT COURT OF RAPPAHANNOCK COUNTY
                           Alfred D. Swersky, Judge Designate

       In this 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.

                                    I. Facts and Proceedings

       Marian 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 meeting

requirements.

       In her 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 part:

                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)].

        In 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).

        The 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




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“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.” 1 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.

           The 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 [Bragg’s] ‘Information,’” without which the court could not “ascertain that good cause

exists.”

           The circuit court concluded that because of “the infirmities of both affidavits submitted in

support of the petition,” the requirements of Code § 2.2-3713(A) had not been met. Bragg filed a

motion for reconsideration, which was denied. The circuit court then entered a final order




           1
          A “jurat” is a certification by a public officer (usually a notary public) stating when and
before what authority an affidavit or deposition was made, typically commencing with the
language “Subscribed and sworn to before me.” It typically “certifies three things: (1) that the
person signing the document did so in the officer’s presence, (2) that the signer appeared before
the officer on the date indicated, and (3) that the officer administered an oath or affirmation to
the signer, who swore to or affirmed the contents of the document.” Black’s Law Dictionary 979
(10th ed. 2014); see also Cumbee v. Myers, 232 Va. 371, 373-74, 350 S.E.2d 633, 634 (1986)
(acknowledging that “the phrase, ‘subscribed and sworn to,’ [is] generally called the ‘jurat,’” and
that “the ‘jurat’ indicates that the person actually signed the document in the presence of the
notary”).


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dismissing the petition. Bragg subsequently appealed to this Court, and we awarded an appeal

on the following assignments of error:

           1. The Trial Court erred by treating Appellees’ (Respondents’)
              Motion for Summary Judgment and Dismissal as a Plea in Bar and
              not affording the allegations in the Amended Petition and all
              reasonable inferences therefrom a presumption of truth.

           2. The Trial Court erroneously construed the Code § 2.2-3713(A)
              requirement that a FOIA enforcement petition be supported by an
              “affidavit showing good cause” by refusing to consider the Board
              member’s post-meeting “Acknowledgment,” by rejecting Bragg’s
              affidavit in support of her Amended Petition and by construing
              Code § 2.2-3713(A) in a manner so narrow and so restrictive that it
              effectively deprived Bragg of her statutory rights and of any
              remedy for alleged violations [of] the Freedom of Information
              Act’s open meeting requirements expressly provided for by the
              General Assembly.

           3. The Trial Court erred by granting Appellee’s (Respondents’)
              “Motion for Summary Judgment and Dismissal” and by dismissing
              Bragg’s Amended Petition on the grounds Bragg’s “good cause”
              affidavit did not contain the actual word “swear” even though the
              Affidavit contained the formulation that “upon being duly sworn,
              Petitioner stated, under oath.”

           4. The Trial Court erred by ignoring the policy provisions in
              [Code § 2.2-3700] in granting Respondents’ “Motion for Summary
              Judgment and Dismissal” and ignoring the provision of
              Code § 2.2-3713(D) that “a single instance of a denial” of Bragg’s
              FOIA rights and privileges is sufficient to invoke the remedies
              provided by FOIA, misconstruing the requirements of Code § 2.2-
              3712(A) and by failing to address Bragg’s allegations that
              members of the public had been physically excluded from the
              meetings and that the Board’s votes to convene closed sessions
              were not taken during the public sessions of the Board meetings
              described in the Amended Petition.

           5. The Trial Court erred by granting Appellees’ (Respondents’)
              “Motion for Summary Judgment and Dismissal” and ignoring or
              failing to address Bragg’s allegations relating to the Board’s
              alleged procedural violations of Code § 2.2-3712 with respect to its
              failure properly to identify the subject matter, purpose and state the
              specific exemption applicable to each agenda item to be discussed
              in the closed sessions.



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                                             II. Analysis

                                       A. Standard of Review

        Where, as here, “no evidence [has been] taken with regard to [a] motion to dismiss[,] we

treat the factual allegations in the petition as we do on review of a demurrer.” Virginia Marine

Res. Comm’n v. Clark, 281 Va. 679, 686, 709 S.E.2d 150, 154 (2011). We accept “the truth of

all material facts that are . . . expressly alleged, impliedly alleged, and those that may be fairly

and justly inferred from the facts alleged.” Harris v. Kreutzer, 271 Va. 188, 195-96, 624 S.E.2d

24, 28 (2006). Our inquiry encompasses “not only the substantive allegations of the pleading

attacked but also any accompanying exhibit mentioned in the pleading.” Flippo v. F & L Land

Co., 241 Va. 15, 17, 400 S.E.2d 156, 156 (1991). We then review the circuit court’s decision to

dismiss the petition, and any corresponding issues of statutory interpretation, de novo. Clark,

281 Va. at 686-87, 709 S.E.2d at 154-55; Harris, 271 Va. at 195-96, 624 S.E.2d at 28; Graves v.

Commonwealth, 294 Va. 196, 199, 805 S.E.2d 226, 227 (2017).

                           B. The “Good Cause” Affidavit Requirement

        Code § 2.2-3713(A) states that “[a]ny person . . . denied the rights and privileges

conferred by [FOIA] may proceed to enforce such rights and privileges by filing a petition for

mandamus or injunction, supported by an affidavit showing good cause.” (emphasis added).

The circuit court dismissed Bragg’s petition on the basis that it was not properly supported by an

affidavit showing good cause. We disagree.

        Pursuant to Code § 8.01-280, “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.” (emphasis added). Here, the Bragg Affidavit swore “that all of the allegations in

the [petition] are true and correct, except to the extent therein stated to be on information, and to



                                                   5
such extent [Bragg] believes them to be true.” Under the circumstances of this case, Bragg’s

sworn statement was sufficient to comply with the requirements of Code § 8.01-280 and, by

extension, Code § 2.2-3713(A).

       The circuit court misread the Bragg Affidavit to the extent it held that the sworn

statement failed to comply with Code § 8.01-280. The Bragg Affidavit did not, as the circuit

court stated, exclude the allegations in the petition “stated to be on information.” Rather, Bragg

swore that the allegations based on her personal knowledge were true, and she believed the

remaining allegations, which were “stated to be on information,” were also true. The Bragg

Affidavit therefore supported all of the underlying allegations because, consistent with

Code § 8.01-280, Bragg swore that they were either true or believed to be true.

       The circuit court further erred in holding that the Bragg Affidavit failed to show good

cause because the petition, and therefore the affidavit, did not identify the basis of her

“information.” Bragg’s allegations that the Board violated FOIA during the closed meetings

were necessarily based “on information and belief” because she was excluded from the meetings

and consequently did not have personal knowledge of what transpired. However, the

“information” upon which Bragg based her allegations was apparent from the face of the

petition, which specifically asserted that Frazier admitted the Board improperly discussed public

business matters during closed sessions. Bragg based her allegations upon Frazier’s admissions,

which were further incorporated into the petition via the Frazier Acknowledgment. See

Rule 1:4(i) (“The mention in a pleading of an accompanying exhibit shall, of itself and without

more, make such exhibit a part of the pleading.”).

       The Board nevertheless argues that the circuit court properly rejected the Frazier

Acknowledgment because it was not an affidavit. While the Board is correct that the Frazier




                                                  6
Acknowledgment was not, itself, an affidavit, the document was “a part of the pleading.”

Rule 1:4(i). The admissions in the Frazier Acknowledgment therefore must be considered

alongside the allegations in the petition and, like the underlying allegations, accepted as true for

the purposes of the motion to dismiss. See Clark, 281 Va. at 686-87, 709 S.E.2d at 154-55;

Flippo, 241 Va. at 17, 400 S.E.2d at 156.

        The Board alternatively argues that the circuit court properly concluded that the Frazier

Acknowledgment did not furnish good cause in support of the petition because Frazier was

“estopped” from recanting his prior certifications under Code § 2.2-3712(D). That statute states,

in relevant part:

                At the conclusion of any closed meeting, the public body . . . shall
                take a roll call . . . certifying that to the best of each member’s
                knowledge (i) only public business matters lawfully exempted
                from open meeting requirements under this chapter and (ii) only
                such public business matters as were identified in the motion by
                which the closed meeting was convened were heard, discussed or
                considered in the meeting by the public body. Any member of the
                public body who believes that there was a departure from the
                requirements of clauses (i) and (ii), shall so state prior to the vote,
                indicating the substance of the departure that, in his judgment, has
                taken place.

Code § 2.2-3712(D). This statute, however, did not prohibit Frazier from subsequently

acknowledging that his prior certifications of compliance were improper. On the contrary,

Code § 2.2-3713(E) forecloses such an interpretation by clarifying that “[n]o court shall be

required to accord any weight to the determination of a public body as to whether an exclusion

applies.” Accordingly, to the extent there was a conflict between Frazier’s prior certifications of

compliance and the Frazier Acknowledgment, that conflict was an evidentiary matter that was

not ripe for adjudication during the proceedings below. Instead, for the purposes of the motion

to dismiss, the admissions in the Frazier Acknowledgment should have been accepted as true.




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       So viewed, we hold that Bragg’s petition complied with Code § 2.2-3713(A). The

petition alleged that the Board improperly discussed public business matters during five closed

meetings, and that the Board’s post-meeting certifications to the contrary were “false.” These

allegations were supported by the Bragg Affidavit, which swore that the allegations were true or

believed to be true. Bragg’s sworn allegations were then corroborated by the Frazier

Acknowledgment, wherein Frazier admitted that the Board improperly discussed public business

matters during some or all of the closed meetings.

       Taken together, we conclude that Bragg’s petition, which incorporated the Frazier

Acknowledgment, was supported by an affidavit showing good cause. The petition therefore

satisfied the requirements of Code § 2.2-3713(A), and the circuit court erred to the extent it held

otherwise. 2

                                          III. Conclusion

       For the reasons stated, we will reverse the judgment of the circuit court and remand for

further proceedings consistent with this opinion.

                                                                          Reversed and remanded.




       2
          Because we agree that, under the appropriate standard, the petition as a whole complies
with Code § 2.2-3713(A), Bragg’s first and second assignments of error are dispositive of this
appeal. We therefore need not address her remaining assignments of error. See Shareholder
Representative Servs. v. Airbus Americas, Inc., 292 Va. 682, 689, 791 S.E.2d 724, 727 (2016)
(noting, “a dispositive assignment of error obviates any need to address other assignments of
error”); City of Chesapeake v. Dominion SecurityPlus Self Storage, 291 Va. 327, 336, 785 S.E.2d
403, 407 (2016) (same, and collecting cases).


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