VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-04-08

April 18, 2008

Laurence Hammock
The Roanoke Times
Roanoke, Virginia

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 electronic mail of March 10, 2008 and March 26, 2008.

Dear Mr. Hammock:

You have asked whether a closed meeting convened by the Roanoke City Council (the Council) was held in violation of the Virginia Freedom of Information Act (FOIA). As background, you indicated that the Council had issued a request for proposals (RFP) concerning an amphitheatre project in the City. The Council received six responses to that RFP. It appears that one Council member, Mr. Brian Wishneff, sent an electronic mail to the City Attorney and others outlining his concerns that none of the responses complied with the requirements set forth in the RFP, and that to consider them further would therefore be improper and in violation of the applicable procurement laws.¹ On February 19, 2008, the Council held a closed meeting to proceed in accordance with the procedures for competitive negotiation set forth in the Virginia Public Procurement Act (VPPA) to begin the process of selecting the most qualified offeror. My understanding is that that process, as dictated by the VPPA, requires the public body to rank the offerors and then interview them in rank order until it selects one offeror with whom to enter into a contract. It appears that the meeting was closed pursuant to subdivision A 29 of § 2.2-3711 (the contract negotiation exemption), which allows a closed meeting to be convened for the purpose of [d]iscussion of the award of a public contract involving the expenditure of public funds...where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body. You stated that Mr. Wishneff left the closed meeting in protest, and asked whether that closed meeting was in fact held in violation of FOIA.

The policy of FOIA set forth in § 2.2-3700 states that [u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public....All public records and meetings shall be presumed open, unless an exemption is properly invoked. In furtherance of this policy, subsection A of 2.2-3707 provides that [a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711. When considering an exemption, FOIA requires that [a]ny 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. These principles guide the opinion below.

Addressing the substance of your question, it appears that the Council acted in compliance with FOIA in convening this closed meeting pursuant to the contract negotiation exemption at issue. In full, the exemption permits a closed meeting to be held for the [d]iscussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body. This exemption was the subject of a 2006 opinion from the Supreme Court of Virginia, wherein the Court opined that the

unambiguous language [of the contract negotiation exemption], viewed in its entirety, demonstrates that the purpose of the exemption is to protect a public body's bargaining position or negotiating strategy vis-a-vis a vendor during the procurement process. Under that exemption, the terms or scope of a public contract are proper subjects for discussion in a closed meeting of a public body only in the context of awarding or forming a public contract, or modifying such contract, and then only when such discussion in an open meeting would adversely affect the public body's bargaining position or negotiating strategy regarding the contract.²

A prior advisory opinion from this office noted that the contract negotiation exemption applicable to meetings was enacted along with a similar exemption for records of contract negotiations, and would allow the discussion of the terms and scope of a proposed agreement in closed session.³ Under the facts presented, it appears that the Council held this closed meeting in order to follow the procedure set forth in the VPPA regarding the formation and award of a procurement contract, including discussion of the proposed terms and scope of such contract, and has asserted that had the discussion been held in open meeting, it would have adversely affected the Council's bargaining position or negotiating strategy. Following the interpretation by the Supreme Court and the prior opinion from this office, it therefore appears that the Council's use of the contract negotiation exemption in this instance falls within the express language of the contract negotiation exemption and is in compliance with FOIA.

The facts you have presented also give rise to two other considerations of note. First, the agenda for this meeting published on the Council's website⁴ lists the following item which appears to correspond to the closed meeting topic at issue:

Subsection A of § 2.2-3712 requires that

[n]o closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (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 provided in § 2.2-3707 or subsection A of § 2.2-3711.

The quoted agenda item describes the purpose of the closed meeting and cites the applicable exemption, but does not identify the subject matter of the meeting. FOIA sets forth no requirements for the contents of agendas or of particular agenda items, so the fact that this agenda item fails to identify the subject is not a FOIA violation. However, it is a common practice to use the same language in an agenda as is used in the actual motion to convene a closed meeting. If the motion to convene the closed meeting was identical to the quoted agenda item, then that motion would fail to satisfy the requirement of subsection A of § 2.2-3712 to identify the subject matter of the closed meeting. A motion to convene a closed meeting must contain all three elements (subject, purpose, and citation) in order to comply with FOIA; a motion that lacks any of these elements is insufficient under the law.⁵ This office has previously advised that it is best to include in the minutes all motions to convene closed meetings and the certifications thereof by quoting such motions and certifications verbatim. This practice leaves no doubt as to whether the motions were made or what were the contents of such motions and certifications.⁶ While no violation is apparent here, I set forth these reminders to help guide future practices.

Second, as an additional matter, note that subsection D of § 2.2-3712, concerning the certification of closed meetings, also sets forth the procedure a member of a public body should follow if he or she feels a closed meeting has been held improperly:

At the conclusion of any closed meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body.

While minutes of this meeting were not provided and do not appear to be available on the Council's website at this time,⁷ the agenda report that is available online⁸ states that Council Members Dowe and Wishneff left during the closed session. Nothing is stated as to why these members left the closed meeting. Based on the facts you provided, it does not appear that any member made a statement concerning a departure from the closed meeting requirements as provided for in subsection D of § 2.2-3712. You indicated that Mr. Wishneff left in protest due to his belief that the closed meeting was being held in violation of the law. However, nothing in the available records of this meeting makes clear that his departure was a protest - the records simply state that he left. I would point out that in such a situation, members may be better advised to follow the procedure set out in FOIA. By following the statutory procedure quoted above, the substance of the protest will be recorded in the minutes, documenting the issue(s) of concern and possibly facilitating subsequent discussion and resolution of any problems.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹As this office is limited to providing advisory opinions on FOIA matters, the question of the legality of this transaction as a matter of procurement law will not be addressed herein. See Freedom of Information Advisory Opinion 04 (2007).
²White Dog Publishing v. Culpeper County Bd. of Supervisors, 272 Va. 377 at 386-387, 634 S.E.2d 334 at 339 (2006). Note that the Court's opinion cites subdivision A 30 of § 2.2-3711, which now appears as subdivision A 29 of § 2.2-3711 (the subdivision numbering has changed but the exemption itself has not).
³See Freedom of Information Advisory Opinion 02 (2004).
⁴Available at http://www.roanokeva.gov/DeptApps/CCAgendas.nsf/3cac7f13c72b8ab385256b1b004ec9af/c3cb3d3d5b236387852573f0005d0239?OpenDocument (last visited April 17, 2008).
⁵See, e.g., Freedom of Information Advisory Opinion 06 (2007).
⁶Freedom of Information Advisory Opinion 06 (2007).
⁷The most recent minutes available at this time appear to be those of the Council meeting held January 22, 2008.
⁸Available at http://www.roanokeva.gov/DeptApps/CCAgendas.nsf/3cac7f13c72b8ab385256b1b004ec9af/c3cb3d3d5b236387852573f0005d0239/$FILE/ag%2002-19-08.pdf (last visited April 17, 2008).