VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-8-00

November 8, 2000

Mr. Tom Gear
Member, Hampton City Council
Hampton, VA

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 under FOIA.

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.

Section 2.1-344.1 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 under FOIA.

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 exemption.

Thank you for contacting this office. I hope that I have been of assistance.

¹1982-83 Op. Atty. Gen. Va. 724.