FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Anthony Kimery
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 April 8, 2001.
Dear Mr. Kimery:
You have asked whether
a local planning commission may properly meet in closed session
pursuant to the Virginia Freedom of Information Act (FOIA)
to discuss a dispute with a restaurant over construction plans.
By way of background, you indicate that the restaurant presented
a site plan to the planning commission in December 2000 to
construct a restaurant in the town. In your email, you state
that the site plan was approved, and that a requirement that
the restaurant pay $99,000 in tap fees was clearly spelled
out. Recently, however, a dispute arose as to whether the
restaurant was indeed required to pay the tap fees. Communications
between representatives of the restaurant and the town manager
have been marked confidential, and distributed to town council
members to discuss during closed meetings.
You have asked whether
these ensuing meetings are properly exempted pursuant to FOIA.
You specifically ask about the exemptions found at subdivision
A. 5. of § 2.1-344 of the Code of Virginia, relating to discussion
of prospective businesses, and subdivision A. 13. of § 2.1-344
relating to the discussion of a siting agreement.
FOIA provides that
[a]ll meetings of public bodies shall be open, except as
provided in § 2.1-344. Subsection A of § 2.1-344 sets
forth 27 enumerated exemptions that allow a public body to
hold a closed session, including the exemptions that you noted
in your e-mail inquiry. If no exemption applies to a given
situation, then any discussion of the matter by a public body
must be conducted in an open meeting for which notice has
been properly given in accordance with § 2.1-343.
Subdivision A. 5.
of § 2.1-344 exempts [d]iscussion concerning a prospective
business or industry where no previous announcement has been
made of the business' or industry's interest in locating or
expanding its facilities in the community. You indicate
that plans to build the restaurant had been announced in the
town. Therefore, this exemption would not apply to any ensuing
The second exemption
that you question, subdivision A. 13. of § 2.1-344, exempts
[d]iscussion of strategy with respect to the negotiation
of a siting agreement or to consider the terms, conditions,
and provisions of a siting agreement if the governing body
in open meeting finds that an open meeting will have an adverse
effect upon the negotiating position of the governing body
or the establishment of the terms, conditions and provisions
of the siting agreement, or both. All discussions with the
applicant or its representatives may be conducted in a closed
meeting. Upon analysis of the legislative history of this
exemption, it becomes clear that this exemption applies to
the siting of a hazardous waste facility, and thus does not
apply to a disagreement over a site plan for a restaurant.
The exemption in
question was originally enacted in 1984, and allowed a closed
session to be held for [d]iscussion of matters exempted
under § 10-186.9 B 1.1 The statutory language
of subdivision B. 1. of §10-186.9 was subsequently moved to
the Virginia Waste Management Act at § 10-294, and found specifically
within Article 5 of that Act titled "Siting of Hazardous Waste
Facilities." This subdivision stated that [n]otwithstanding
the provisions of the Virginia Freedom of Information Act,
a governing body may: 1. Hold executive sessions to discuss
strategy with respect to the negotiation of a siting agreement
or to consider the terms, conditions and provisions of a siting
agreement if the governing body in open meeting finds that
an open meeting will have a detrimental effect upon the negotiating
position of the governing body and/or the establishment of
the terms, conditions and provisions of the siting agreement.
All negotiations with the applicant or its representatives
may be conducted in closed meeting or executive session.2
The recodification of Title 10 to Title 10.1 in 1988 moved
the language of the exemption from the Virginia Waste Management
Act to the body of FOIA, to amend subdivision A. 13. of §
2.1-344. The language currently found in FOIA at subdivision
A. 13. of § 2.1-344 is nearly identical to the FOIA exemption
language previously found in the Virginia Waste Management
Act. Thus it can be concluded that the exemption in FOIA was
meant to allow a closed meeting when discussing the siting
of a hazardous waste facility, and would not apply to a discussion
of the restaurant's dispute over tapping fees.
In conclusion, neither
of the two exemptions that you mention would appear to allow
a public body to meet in closed session to discuss the terms
of a previously-approved site plan for construction of a restaurant.
Unless a situation is specifically exempted under § 2.1-344,
all discussion of public business must be conducted at public
meeting following the procedures set forth at § 2.1-343.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
§ 2.1-344(A)(11) Va. Code Ann. (Michie Supp.
1984). The exemption, using the same statutory language, was
moved to § 2.1-344(A)(13) in 1986.
Code Ann. (1986 Supp.).