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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA


AO-14-01

February 26, 2001

Mr. Patrick Mannix
Bristol, 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 telephone conversation of February 1, 2001.

Dear Mr. Mannix:

You have asked a question concerning the requirements for a motion of a public body to enter into a closed session under the Virginia Freedom of Information Act (FOIA). You indicate that at a recent Board of Supervisors meeting (the "Board"), an executive session was called to discuss three separate items. Your question concerns two of the items on the closed meeting agenda, both relating to litigation. For the first item, the Board cited the specific section in the Code of Virginia allowing the closed meeting, stated that the purpose of the session was to discuss litigation, and provided the name of the case to be discussed. For the second item, however, the Board simply cited the Code section and stated that the purpose was to discuss litigation. The Board declined to elaborate further on this second issue. You ask whether this general motion of the Board for the second litigation item was sufficient, or whether the public was entitled to be informed of the subject matter of the discussion as well.

In order for a public body to enter into closed session, subsection A of 2.1-344.1 of the Code of Virginia requires a motion which (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements. In the situation that you present, it appears that the Board satisfied two of these three requirements. The Board identified the purpose of the meeting -- to discuss litigation -- and cited subdivision A. 7. of 2.1-344. Therefore, it would appear that the Board would also need to identify the subject matter of the meeting in order to satisfy the procedural requirements of FOIA. The question remains, however, as to how specific this identification must be.

In order to determine the level of specificity required in identifying the subject matter of a closed meeting, one must consider the nature of the exemption itself. In this instance, subdivision A. 7. of 2.1-344 exempts:

Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

The Supreme Court of Virginia interpreted the motion requirements in light of the litigation exemption prior to the substantial FOIA rewrite in 1999. Instead of the three current requirements of subject matter, purpose, and specific Code citation, FOIA required that the motion state specifically the purpose or purposes hereinabove set forth in this section which are to be the subject of such meeting and a statement included in the minutes of such meeting which shall make specific reference to the applicable exemption or exemptions provided [by FOIA]. Thus, no distinct requirement for both a purpose and subject matter statement existed at that time. Nonetheless, the Court's interpretation may still be relevant in a current examination of the motion requirements for the exemption.

In Marsh v. Richmond Newspapers, the Court addressed the propriety of a motion to go into closed session to discuss litigation where the motion tracked the language of the exemption and provided a specific Code reference.1 The Court found that [i]t is neither necessary nor in the public interest to require as a prerequisite to closing a meeting pursuant to [the litigation exemption] that the governing body disclose in detail the legal matters or the legal issues to be considered. To do so would tend to defeat the very confidentiality that the exemption safeguards. (Emphasis added.) However, in reaching the conclusion that the motion was legally sufficient, the Court noted that it was clear which agenda item the motion referred to, since there was only one item on the agenda. In a different case, the Supreme Court interpreted Marsh, again in the context of the legal matters exemption, to hold that a motion for a closed session that follows the language of the exemption and identifies the agenda item to be discussed is sufficient.2

In applying this reasoning to the more stringent motion requirements in the current law, it appears that a motion simply tracking the language of the exemption and providing its specific statutory cite would be insufficient. A public body would have to provide at least a general description of the type of litigation it wished to discuss, such as providing a case name if dealing with actual litigation. In the Marsh case, the discussion involved probable litigation concerning the construction of an interstate highway. There, the agenda indicated that the discussion would concern issues pertaining to the construction. In determining how specific a description needs to be, even under the current law, the Court's reasoning is still relevant and a general subject description such as "issues pertaining to highway construction" might still suffice. To require too specific of a disclosure would defeat the purpose of allowing a closed meeting, especially in the realm of litigation.

In conclusion, FOIA requires three specific elements to be included in a motion to enter into closed session: identification of the subject matter, statement of the purpose, and citation of the specific statutory exemption. Without all three of these elements, a motion for closed session would be incomplete. However, the level of specificity required to identify the subject matter when addressing litigation greatly depends upon how its disclosure would affect the negotiating or litigating posture of the public body, and thus a general description may suffice.

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

Sincerely,

Maria J.K. Everett
Executive Director

1Marsh v. Richmond Newspapers, 223 Va. 245, 288 S.E. 2d 415 (S. Ct. 1982). This opinion has been cited in several opinions of the Attorney General of Virginia, all of which were published under the prior version of FOIA. See 1982-83 Op. Atty. Gen. Va. 716 (opining that a public body need not state in its motion a specific case to be discussed); 1982-83 Op. Atty. Gen. Va. 717 (finding that a motion to go into closed session to discuss legal matters must have an identifiable connection with the business under consideration by the public body); and 1986-87 Op. Atty. Gen. Va. 31 (opining that the exemption allowing a closed meeting to discuss legal matters does not require the details of the legal problem to be addressed to be disclosed).

2Nageotte v. Board of Supervisors, 223 Va. 259, 288 S.E. 2d 423 (S. Ct. 1982). See also City of Danville v. Laird, 223 Va. 271, 288 S.E. 2d 429 (S. Ct. 1982) (holding that where there were only two items on the agenda and both related to legal matters, a motion by a public body to enter into executive session to discuss legal matters without indicating a specific item on the agenda was sufficient, because it was clear from the agenda that both legal matters would be discussed).

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