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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-7-00
October
17, 2000
Ms. Becky Dale
Richmond, VA
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 letter dated
September 11, 2000.
Dear Ms. Dale:
You have asked whether,
under the current Virginia Freedom of Information Act (FOIA),
a lawyer must be present at a closed meeting when subdivision
A 7 of § 2.1-344 of FOIA is used as a basis to close the meeting.
Subdivision A7 of
§ 2.1-344 authorizes a public body to hold a closed meeting
for the following purpose:
"Consultation
with legal counsel and briefings by staff members or consultants
pertaining to actual or probable litigation, where such
consultation or briefing in open meeting would adversely
affect the negotiating or litigating posture of the public
body; and consultation with legal counsel employed or
retained by a public body regarding specific legal matters
requiring the provision of legal advice by such counsel.
For the purposes of this subdivision, "probable litigation"
means litigation which has been specifically threatened
or on which the public body or its legal counsel has a
reasonable basis to believe will be commenced by or against
a known party. Nothing in this subdivision shall be construed
to permit the closure of a meeting merely because an attorney
representing the public body is in attendance or is consulted
on a matter."
Subdivision A7 of
§ 2.1-344 provides two distinct situations where a public
body may hold a closed meeting:
- Consultation with
legal counsel and briefings by staff members or consultants
pertaining to actual or probable litigation, where such
consultation or briefing in open meeting would adversely
affect the negotiating or litigating posture of the public
body; and
- Consultation with
legal counsel employed or retained by a public body regarding
specific legal matters requiring the provision of legal
advice by such counsel.
In the first instance,
where the discussion is related to actual or probable litigation,
legal counsel need not be present. This exemption may be properly
invoked where there are briefings by staff members or consultants
and such briefings pertain to actual or probable litigation.
In the second instance,
legal counsel would have to be present because, on its face,
this part of the exemption applies only to "consultations
with legal counsel."
You have also asked
for an opinion on "whether the law in 1996 would have required
a lawyer to be present when a board closed a meeting to discuss
other specific legal matters." The Freedom of Information
Advisory Council was created in July 2000 to encourage and
facilitate compliance with the Freedom of Information Act.
In this particular instance, exploration of the law as it
existed in 1996 would not encourage compliance with the law
as it exists now. Additionally, because the current law is
clear on its face, comparison with prior law is unnecessary.
Thank you for contacting
this office. I hope that I have been of assistance.
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