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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-03-17
March
17, 2017
Terrill
"Terry" Ramsey
Charlotte Court House, 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 January 16, 2017.
Dear
Mr. Ramsey:
You have asked two questions about the sufficiency
of certain motions to convene closed meetings of a
board of supervisors under the Virginia Freedom of
Information Act (FOIA). Your first question asks about
a specific motion made by the Charlotte County Board
of Supervisors (the Board) at its meeting on November
8, 2016 to convene a closed meeting to discuss personnel
matters. Your second question asks about the sufficiency
of several sample motions relating to closed meetings.
Each question will be addressed separately below,
with additional facts set out as appropriate.
The policy of FOIA stated in subsection B of §
2.2-3700 is to ensure "the people of the Commonwealth
... free entry to meetings of public bodies wherein
the business of the people is being conducted."
The policy continues by stating 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 .... meetings shall be presumed open,
unless an exemption is properly invoked." The
subsection further specifies 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." The procedure for convening
a closed meeting is set forth in subsection A of §
2.2-3712, which provides in full as follows:
No
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 matters
contained in such motion shall be set forth in detail
in the minutes of the open meeting. A general reference
to the provisions of this chapter, the authorized
exemptions from open meeting requirements, or the
subject matter of the closed meeting shall not be
sufficient to satisfy the requirements for holding
a closed meeting.
As
previously opined by this office, 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. We have previously observed that there
is often confusion in differentiating between the
subject and the purpose of a closed meeting. Conceptually,
it may be helpful to think of the subject as what
the meeting is about, while the purpose is why the
meeting is to be held. This office has previously
opined that when identifying the subject of a closed
meeting, the subject need not be so specific as to
defeat the reason for going into closed session, but
should at least provide the public with general information
as to object of the discussion. Observing that the
prefatory language of subsection A of § 2.2-3711
states that "[p]ublic bodies may hold closed
meetings only for the following purposes," we
also opined that quoting or paraphrasing from one
of the exemptions in that subsection satisfies the
requirement to state the purpose of the meeting, but
it does not suffice to identify the subject matter.
We concluded this analysis by noting that by quoting
or paraphrasing from one of the statutory exemptions,
and providing a proper citation to the exemption,
only two of the three required elements of the motion
to convene a closed meeting are satisfied. The public
body must still identify the subject in order to make
a proper motion to convene a closed meeting. Determining
whether any particular motion meets the statutory
requirements depends on the facts of each situation
and requires a case-by-case analysis.1
Your first question asked whether a specific motion
made by the Board was in compliance with the requirements
of FOIA. You provided an audio recording of that motion
as it was made, and transcribed it as follows: "Mr.
Chairman, I move that the Board of Supervisors convene
to close meeting to discuss personnel as permitted
by the Virginia Code. I don't need to name all these
numbers. That's the motion." Listening to the
audio recording confirmed that your transcription
of the actual motion appears to be accurate. The audio
recording you provided demonstrates that the motion
was then seconded and voted upon. You also provided
a copy of the written minutes of that meeting which
include the following entry regarding the motion:
"Pursuant to Code Section 2.2-3711.A.1, Motion
was made by Nancy R. Carwile, seconded by Warren E.
Weston, and carried with all other members present
and voting yes to enter into Closed Session to Discuss
Personnel." Note that the actual motion made
does not match the motion as set forth in the minutes,
and neither is sufficient to satisfy all of the requirements
of FOIA. Both the actual motion and the motion as
recorded in the minutes identify the purpose of the
closed meeting to discuss personnel matters, but neither
identifies the subject to be discussed, and the actual
motion as transcribed also failed to make the required
"specific reference to the applicable exemption
from open meeting requirements provided in §
2.2-3707 or subsection A of § 2.2-3711."
Your second question asked about the sufficiency of
several sample motions to convene and certify closed
meetings which you stated were included with the Board's
agenda packet for its meeting on November 8, 2016.
As the requirements to convene a closed meeting are
different from the requirements for a motion to certify
a closed meeting, we begin by considering only the
sample motions to convene a closed meeting. The list
of such sample motions you provided begins with prefatory
language for each stating that "I move that the
Charlotte County Board of Supervisors convene in closed
meeting to discuss the following." That prefatory
language is followed by six different example motions
covering (1) personnel matters under subdivision A
1 of § 2.2-3711; (2) the acquisition or disposition
of real property under subdivision A 3 of § 2.2-3711;
(3) personal matters not relating to public business
under subdivision A 4 of § 2.2-3711; business
or industry where no previous announcement has been
made under subdivision A 5 of § 2.2-3711; (5)
probable litigation under subdivision A 7 of §
2.2-3711; and (6) consultation with legal counsel
about specific legal matters also under subdivision
A 7 of § 2.2-3711. Each of these sample motions
has a blank line ("___") next to it. The
sample motion for personnel matters has six subsidiary
motions for specific types of personnel matters, each
of which also has its own blank line next to it. Notably,
the last of these subsidiaries is for "Other
specific personnel matter [STATE GENERAL NATURE
OF MATTER WHEN MAKING MOTION]." [Emphasis
and capitals in original.] Each sample motion paraphrases
from the statutory language of the referenced exemption.
You asked whether marking "X" in the blank
line next to any of these sample motions would be
sufficient to satisfy FOIA. You noted that none of
them appear to identify a subject. As stated above,
identifying the subject matter of a closed meeting
is one of the requirements set forth in subsection
A of § 2.2-3712. Without that identification,
a motion to convene a closed meeting is insufficient.
As written, it appears that you are correct that none
of the sample motions you provided identifies a subject.
Marking an "X" in the blank next to any
of these samples would not be sufficient by itself
to identify a subject, and therefore would not satisfy
the requirements for a motion to convene a closed
meeting. However, considering that all of the sample
motions state a purpose and provide a cite to a corresponding
exemption, if the maker of the motion were to add
language identifying an appropriate subject, that
would be sufficient to satisfy the requirements for
a motion to convene a closed meeting.
Regarding the sample motion to certify a closed meeting,
it closely tracks the language of subsection D of
§ 2.2-3712, which sets out the relevant requirements
for certification:
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.
The
sample motion essentially quotes clauses (i) and (ii)
above while identifying the Board as the public body
involved and providing spaces to identify the votes
(Ayes and Nays) and the members present and absent.
Note that FOIA does not require that each motion to
certify a closed meeting identify the subject, purpose,
and cite that were identified in the motion to convene
the closed meeting. Therefore, the language of this
sample motion comports with the requirements of subsection
D quoted above and is sufficient to satisfy FOIA.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
Sample
closed meeting motions and certification
1Freedom
of Information Advisory Opinion 02 (2016)(internal cites
omitted).
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