FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. William B. Royster,
Member, Halifax County Industrial Development Authority
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 October 23, 2002.
Dear Mr. Royster:
You have asked whether
the Halifax County Industrial Development Authority ("the
IDA") is a public body under the Virginia Freedom of Information
Act (FOIA), and therefore subject to its open meeting requirements.
You have also asked about the role of the Virginia Freedom
of Information Advisory Council ("the Council"), and the weight
of the Council's written opinions.
of the Code of Virginia includes in the definition of a public
body any legislative body, authority, board, bureau, commission,
district or agency of the Commonwealth or of any political
subdivision of the Commonwealth. Section 15.2-4903 allows
a locality to create an industrial development authority,
which by statute is a political subdivision of the Commonwealth.
The definition of a public body includes both authorities
and political subdivisions, which encompasses the IDA. Absent
specific statutory language declaring that the IDA is not
subject to FOIA, it must follow the open records and meetings
requirements. Upon review of both FOIA and the Industrial
Development and Revenue Bond Act, Chapter 49 of Title 15.2
of the Code of Virginia, nothing indicates that the General
Assembly did not intend the IDA to be subject to FOIA.
Your question specifically
asks about the open meeting requirements of FOIA. Subsection
A of § 2.2-3707 declares that [a]ll meetings of public
bodies shall be open, except as provided in § 2.2-3711.
In addition to opening meetings to the public, FOIA also requires
that notice be given and minutes taken. Subsection B of §
2.2-3707 requires that a public body give notice of regular
meetings, including the time, date, and location, at least
three working days in advance. This notice must be posted
in a prominent public location at which notices are regularly
posted, and in the office of the clerk of the public body.
If the public body does not have a clerk, notice must be posted
in the office of the chief administrator. Subsection E of
§ 2.2-3707 also requires a public body to give notice directly
to anyone who files a written request for notification with
the public body. Subsection I of § 2.2-3707 requires minutes
to be recorded at all open meetings. Minutes, including draft
minutes, are public records and subject to the open records
provisions of FOIA.
A public body may
only enter into closed session pursuant to the exemptions
set forth at § 2.2-3711. If a public body chooses to exercise
an exemption and hold a closed meeting, § 2.2-3712 sets forth
the procedures a public body must follow. Subsection A of
§ 2.2-3712 requires a public body to first convene in open
session, and make a motion to enter into closed session that
identifies the subject matter, states the purpose of the meeting,
and makes specific reference to the applicable exemption from
the open meeting requirements.1 Subsection C of
§ 2.2-3712 requires that discussion in the closed meeting
be limited to those matters identified in the motion. Finally,
subsection D of § 2.2-3712 requires a public body to reconvene
in open meeting at the conclusion of the closed meeting, and
to certify in a recorded vote that the discussion in the closed
meeting was limited to matters exempted from open meeting
by § 2.2-3711 and identified in the motion. If a member fails
to certify the meeting, that member must indicate the substance
of the departure be recorded in the minutes of the meeting.
In addition to your
question about the status of the IDA as a public body, you
asked a more general question about the role of the Council.
The Council's statutory duties are set forth at § 30-179.
The main role of the Council is to furnish, upon request,
advisory opinions, conduct FOIA training seminars for the
members and staff of public bodies or other interested persons,
and produce educational materials. This office provides informal
advisory opinions over the phone, and also provides more formal,
written opinions, like this opinion, that are published on
our website. Our written opinions are advisory, and do not
carry with them enforcement authority. Only a court has the
authority to enforce the provisions of FOIA.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
For a more detailed discussion of the requirements of a motion
for closed meeting, see Virginia Freedom of Information Advisory
Opinion 8 (2002).