FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Tom Gear
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 our telephone conversation
on November 1, 2000.
Dear Councilman Gear:
You have asked a
number of questions that were prompted by a particular meeting
of the Hampton City Council in which a motion was made to
convene in a closed meeting for a discussion concerning real
estate, specifically the "Crossroads Project" (a proposed
convention center). The reason given for the closed meeting
was based on subdivision A3 of § 2.1-344. You state that the
City of Hampton currently owns the real property where the
"Crossroads Project" is to be built and that during the referenced
closed meeting, discussions included (i) the use of the "Crossroads
Project," including references to a consultant’s report in
the possession of the city manager on the "Crossroads Project"
that indicated the number of annual conferences needed to
be held there in order for the "Crossroads Project" to be
profitable to the city, etc., and (ii) the propriety of council
members "leaking" information discussed in a closed meeting
to the media. Further, you indicate that when asked for a
copy of the consultant’s report on the "Crossroads Project,"
the city manager invoked the working papers exemption authorized
under subdivision A6 of § 2.1-342.01 and would not release
the report to the requesting member(s) of the Council.
1. Your first question
is whether the Freedom of Information Act (FOIA) allows a
public body to convene in closed session to discuss the use
of publicly-held real property. Prior to July 1999, FOIA allowed
closed meetings to discuss the condition or use of
publicly-held real estate. However, discussion of the condition
or use of publicly-held real estate is no longer permissible
Subdivision A3 of
§ 2.1-344 authorizes a public body to convene a closed meeting
for discussion or consideration of the acquisition of real
property for a public purpose, or of the disposition of publicly
held real property, where discussion in an open meeting
would adversely affect the bargaining position or negotiating
strategy of the public body.
As a result, a public
body may meet in closed session only to discuss new acquisitions
of property for a public purpose or the disposition of property
and only if such discussion in public would adversely
affect the bargaining position or negotiating strategy of
the public body.
2. Your second question
is whether, during the meeting closed for the discussion of
real estate, a public body may discuss other topics not specifically
exempted from FOIA. Specifically, may the propriety of council
members "leaking" information about the "Crossroads Project"
to the media be discussed in a closed meeting.
requires the public body holding a closed meeting to restrict
its discussion during the closed meeting only to those matters
specifically exempted from the provisions of FOIA and
identified in the required motion. Applying the statutory
construction rule expressly stated in § 2.1-340.1, "any exemption
from public access to records or meetings shall be narrowly
construed and no record shall be withheld or meeting closed
to the public unless specifically made exempt pursuant to
this chapter or other specific provision of law."
As I interpret the
provisions cited above, it appears clear that the discussion
you describe was not a proper subject for a closed meeting
3. Your third question
is whether the city manager may properly invoke the "working
papers" exemption authorized under FOIA as it relates to the
release of the consultant’s report on the "Crossroads Project."
The "working papers"
exemption is essentially an executive privilege and extends
to the Office of the Governor; Lieutenant Governor; the Attorney
General; the members of the General Assembly or the Division
of Legislative Services; the mayor or chief executive officer
of any political subdivision of the Commonwealth; or the
president or other chief executive officer of any public institution
of higher education. (Emphasis added)
Subdivision A6 of
§ 2.1-342.01 also defines "working papers" as those records
prepared by or for an above-named public official for
his personal or deliberative use. (Emphasis added.) To the
extent that the communications are prepared for the chief
executive officer for his personal or deliberative use, the
"working papers" exemption may be properly invoked. However,
once the chief executive disseminates any records held by
him, those records lose the exemption authorized by subdivision
A6 of § 2.1-342.01.1 The fact that the existence
of the consultant’s report is mentioned or that parts of its
contents are disclosed does not, in my opinion, waive the
Thank you for contacting
this office. I hope that I have been of assistance.
Op. Atty. Gen. Va. 724.