December 15, 2000
Mr. Kenneth Cranford
South Boston, VA
The staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing staff
advisory opinion is based solely upon the information presented
in your e-mail of November 14, 2000.
Dear Mr. Cranford:
You have asked a series of questions stemming from a meeting
of a county school board. You indicate that the school board
called a closed session to discuss personnel and property.
However, you learned that a parental request for a religious
exemption from attending public school was also on the agenda
for the closed session. Later, you were told that a court
reporter brought by the lawyer of the parents seeking the
exemption was not allowed into the closed session. Ultimately,
the matter of the religious exemption was not discussed because
the public body's attorney was not present.
1. Your first question asks whether announcements for closed
meetings must include all reasons for going into the session.
The Virginia Freedom of Information Act (FOIA) requires that
all meetings of public bodies be open, except for specific
enumerated exemptions found at § 2.1-344 of the Code of Virginia.
When one of those exemptions is to be invoked, § 2.1-344.1
sets forth procedures that must be followed in order to enter
into a closed meeting. The public body must vote in open session
to approve a motion identifying the subject matter, purpose,
and specific statutory provision providing the exemption in
order to go into closed session. Once in closed session, the
public body is limited to discuss only the matters specifically
identified in the motion. Finally, once the public body reconvenes
in open session, the body must certify by vote that the discussion
was indeed limited to the topics noticed in the motion.
2. Your second question asks if it is appropriate in an executive
session for a school board to consider parental requests for
religious exemptions. In order to be an appropriate topic
for discussion in closed session, it would need to fall under
one of the specific exemptions enumerated in § 2.1-344. There
is an exemption for discussion of certain academic matters
at subdivision A. 2. of §2.1-344, but this exemption is limited
to discussion of admission or disciplinary matters concerning
a student. Because the policy of FOIA dictates that all exemptions
must be narrowly construed, this exemption would not be appropriate
for a discussion of a parental request for a religious exemption
from attending school. Subdivision A. 4. of § 2.1-344, however,
appears to apply to the fact situation that you have outlined.
This provision allows a public body to hold a closed session
for the protection of the privacy of individuals in personal
matters not related to public business. The discussion
of the religious beliefs of a particular family within the
school system is a personal matter, and does not seem to fall
under the public business conducted by the school board. Thus,
this discussion seems to be an appropriate topic for a closed
meeting, so long as this exemption is specifically cited,
and the other requirements of § 2.1-344.1, discussed above,
3. Your third question asks if the parents seeking the exemption
have a right to record the executive proceeding to protect
their interests. In open session, § 2.1-343 requires that
minutes be taken and allows any person to record the open
meeting. However, there are no such parallel provisions for
closed sessions. In fact, subsection H of § 2.1-344.1 specifically
states that minutes need not be taken at closed meetings.
Because there is no affirmative duty of the public body to
record the meeting, this question focuses on whether the parents
requesting the discussion can bring in a court reporter to
record the meeting. Subsection F of § 2.1-344.1 gives a public
body the discretion to allow nonmembers to attend a closed
meeting if such persons are deemed necessary or if their
presence will reasonably aid the public body in its consideration
of a topic which is a subject of the meeting. Thus, the
decision as to whether to allow a court reporter into a closed
session is left to the discretion of the public body.
4. Your fourth question asks if a request by the parents
to hold the discussion in an open session obviates the application
of the FOIA exemption. Again, like the response to the last
question, whether to hold a closed meeting rests with the
discretion of the public body. FOIA does not mandate that
any meetings be closed. Instead, subsection A of § 2.1-344
reads that a public body may hold closed meetings for
one of the enumerated purposes set forth in that provision.
(Emphasis added). Thus, even if an exemption could be properly
invoked, it would be left to the discretion of the public
body whether to actually go into closed session. Likewise,
when an exemption does properly apply, it is also up to the
discretion of the public body to exercise its right to convene
in closed session.
5. Your final question asks about the remedies available
to the news media for being excluded from the meeting in question.
Section 2.1-346 sets forth the procedures for enforcement
of FOIA whenever the rights conferred by the chapter have
been denied. Enforcement may be sought via a petition for
either mandamus or injunction. These enforcement mechanisms
are available to any aggrieved party, whether a member of
the media or a member of the public. In focusing on the meeting
in question, it appears that the topic would be the proper
subject of an executive session. Any possible violation of
FOIA appears to rest in failure to follow the proper procedures
to convene in closed session, and not with the exclusion of
the public, media, or any other party to the action.
Thank you for contacting this office. I hope that I have
been of assistance.
Maria J.K. Everett