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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-03-10
June
11 , 2010
Robert
B. Weir
Haymarket Town Council
Haymarket, 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 May 19, 2010 and telephone conversation of May 20,
2010.
Dear
Mr. Weir:
You
have asked whether the Mayor of the Town of Haymarket (the
Mayor) may demand the return of all papers distributed during
a closed meeting of the Town Council, as well as notes taken
by individual members of the Council during the closed meeting.
As factual background, you indicated that certain documents
had been distributed to some council members prior to a meeting,
that the same documents were distributed to all council members
during the closed portion of the meeting, and that the mayor
demanded the return of all copies of the documents at the
end of the closed meeting. Furthermore, you indicated that
some individual members had taken notes during the closed
meeting, and that the mayor demanded those notes be turned
over to her as well.
Generally,
the Virginia Freedom of Information Act (FOIA) requires that
all meetings of public bodies be open to the public and that
minutes be taken summarizing the events of such meetings.1
However, meetings held for certain purposes may be closed
to the public.2 FOIA also provides an exception
to the usual rules on keeping minutes and a records exemption
for certain records used or prepared in closed meetings. Specifically,
subsection H of § 2.2-3712 that [m]inutes may be
taken during closed meetings of a public body, but shall not
be required. Such minutes shall not be subject to mandatory
public disclosure. Additionally, subdivision 5 of §
2.2-3705.1 exempts [r]ecords recorded in or compiled exclusively
for use in closed meetings lawfully held pursuant to §
2.2-3711. However, no record that is otherwise open to inspection
under this chapter shall be deemed exempt by virtue of the
fact that it has been reviewed or discussed in a closed meeting.
Following these provisions, it is clear that minutes of closed
meetings (if any are taken), records recorded in closed meetings
(such as individual members' notes), and records prepared
exclusively for use in closed meetings (which may include
records prepared solely for distribution and use by members
during a closed meeting) are all exempt from mandatory disclosure
under FOIA.
However,
FOIA itself does not directly answer your questions regarding
the authority of a mayor to take such records from individual
council members at the conclusion of a closed meeting. Generally,
it is my understanding that sometimes public bodies distribute
materials considered confidential or sensitive to members
for use during a closed meeting and then take them back at
the conclusion of the meeting. While this practice appears
to be widespread and long-standing, FOIA does not address
it. Therefore we must turn to other sources to attempt to
answer your questions.
Looking
outside of FOIA, research revealed no published opinions from
the courts or the Office of the Attorney General that address
the issues you have brought forth. The Charter for the Town
of Haymarket, however, does set out the powers and duties
of the office of Mayor,3 but it does not appear
on its face to directly address the questions you raise concerning
the authority of the Mayor to take records and notes from
members used in closed meetings of the town council. It is
unknown whether the town council has adopted any resolutions,
bylaws, parliamentary rules or other measures that may answer
your questions. In regard to the powers of cities and towns
generally, § 15.2-1106 appears to address certain aspects
of record-keeping by a locality, but it also does not directly
answer the questions you present.4 Furthermore,
it would be beyond the statutory authority of this office5
to opine on whether this section or other law outside FOIA
may be interpreted to grant a mayor authority to reclaim documents
distributed to town council members, or to take from them
their personal notes written during closed meetings. I would
therefore suggest that you may wish to refer this matter to
your town attorney.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,Maria
J.K. Everett
Executive Director
1See
§§ 2.2-3700 and 2.2-3707.
2See §§ 2.2-3711 and 2.2-3712.
3See
Charter of the Town of Haymarket, art. III § 1(7),
available at http://dls.virginia.gov/lrc/charters/Haymarket.pdf
(last accessed June 10, 2010).
4In full, § 15.2-1106 reads as follows:
A municipal corporation shall provide for the control and
management of the affairs of the municipality, and may prescribe
and require the adoption and keeping of such books, records,
accounts and systems of accounting by the departments, boards,
commissions, courts or other agencies of the local government
as may be necessary to give full and true accounts of the
affairs, resources and revenues of the municipal corporation
and the handling, use and disposal thereof.
5See Va. Code § 30-179 (setting forth
the powers and duties of the FOIA Council). |