VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-06-07

June 8, 2007

Geoff Moore
David Scanlon
Exmore, 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 facsimiles of May 4 and 15, 2007.

Dear Mr. Moore and Mr. Scanlon:

You have asked whether your local Town Council (the Council) violated the Virginia Freedom of Information Act in holding a work session on February 19, 2007. You indicated that notice was given that the meeting would begin at 7:00 p.m., but it actually began when the Council convened a closed meeting at 6:00 p.m. With your facsimile, you included a copy of a notice stating Town of Exmore Town Council Work Session Mon. February 19, 2007 7:00 p.m. You stated that you and other citizens arrived early and attempted to enter the locked building, then knocked on the doors and windows attempting to get someone to let you in. You indicated that you spoke to the Town Clerk at approximately 6:30 p.m., and in response to your questions, she stated that the Council was having a meeting but she did not know what the meeting was about or with whom the Council was meeting, and that no exemption had been cited for having a closed meeting. You included a copy of draft minutes with your facsimile that you indicated were in contradiction to her verbal statements to you. The minutes state that the meeting was called to order at 6:00 p.m. The first order of business listed in the minutes is a closed session for the purpose of discussion concerning a prospective business or industry...as provided for in Code of Virginia § 2.2-3711(A)5 [sic]. Next the minutes indicate that the Council reconvened from closed session by

a Motion stating that only matters discussed during the Closed Session just concluded were those both lawfully exemption from the open meeting requirements and identified as Protecting Individual Privacy - Discussion of Matters Unrelated to Public Business Informing the Members of a Public Body of Personal Situations of Individuals, Code of Virginia, § 2.2-3711(A)5.

The motion was approved by roll call vote. The Mayor indicated no action needed to be taken as a result of the closed meeting. Further facts will be presented as needed below.

The General Assembly has set forth the public policy of FOIA in § 2.2-3700, stating that FOIA is meant to ensure

free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government....The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any 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.

In implementing this policy, FOIA sets forth specific procedural requirements for the conduct of meetings. Of particular relevance to the facts you present are the requirements for notice and the requirements for convening and certifying closed meetings.

First addressing the issue of notice, subsection C of § 2.2-3707 requires that [e]very public body shall give notice of the date, time, and location of its meetings. You provided copies of a notice stating that the meeting would begin at 7:00 p.m. and of draft minutes indicating that the meeting actually began at 6:00 p.m. The requirements of FOIA are plain, and the facts you describe do not meet those requirements. The time when the meeting begins is the time that must be noticed. You indicated that a Council member stated that "You wouldn't want us to waste peoples' time by having a closed meeting at the beginning of the meeting?" As shall be discussed in greater detail below, a closed meeting cannot be held without having an open meeting first, because in order to convene a closed meeting, a public body must approve an appropriate motion by vote in an open meeting. Similarly, it is necessary to certify a closed meeting after it is held, and such certification must also be approved by vote in an open meeting. Therefore even if a closed meeting topic is the first or even the only item on the agenda, every public body must still begin and end every meeting in open session.¹

In order to convene a closed meeting, subsection A of § 2.2-3712 requires that the public body must approve by affirmative recorded vote in an open meeting 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.

Every motion to convene a closed meeting must therefore set forth three essential elements: (1) the subject of the meeting, (2) the purpose of the meeting, and (3) a citation to an applicable exemption. The law clearly states and this office has previously opined that a motion that lacks any of these three elements would be insufficient under the law.² Additionally, in order to fully satisfy the procedural requirements of this subsection, the meeting minutes must contain a record of the motion itself and the vote approving that motion.

In describing the closed meeting at issue, the draft minutes you provided read, in full, as follows:

Mayor Lawson stated that the Council was to adjourn to a Closed Session for the purpose of discussion concerning a prospective business or industry, or the expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in locating or expanding its facilities in the community, as provided for in the Code of Virginia §2.2-3711(A)5.

Generally, subsection I of § 2.2-3707 requires all meeting minutes to contain a record of any votes taken.³ Specifically, subsection A of § 2.2-3712 requires that a public body take an affirmative recorded vote in an open meeting approving the motion to convene a closed meeting. The draft minutes you provided, as quoted above, do not contain any record of a vote taken to approve a motion to convene in closed meeting. The minutes indicate that the Mayor stated that the Council was to adjourn; they do not indicate that a motion to convene in closed meeting was made or voted upon. Based upon these draft minutes, it appears that the Council may have convened a closed meeting without the mandatory motion and vote. If that is what happened, then the meeting was convened in violation of the procedural requirements of FOIA. In the alternative, if the Council did follow the proper procedure as to the motion and vote, the draft minutes fail to conform to the requirements of FOIA because they do not contain the required record of the affirmative vote approving a motion to convene the closed meeting at issue.

Presuming that the mandatory motion was made and approved by vote, and that the description in the minutes accurately sets forth the details of that motion, the motion and/or the minutes still fail to satisfy fully the requirements of FOIA. The language quoted from the minutes above closely follows the statutory language of the cited exemption, subdivision A 5 of § 2.2-3711, which permits a closed meeting to be held for the purpose of [d]iscussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in locating or expanding its facilities in the community. The quoted minutes therefore state the purpose of the closed meeting and cite a corresponding exemption, two of the three requirements for a motion to convene a closed meeting. However, the minutes do not identify the subject of the closed meeting. Subdivision A of § 2.2-3712 provides that it is insufficient to make a general reference to the provisions of FOIA, a statutory exemption, or the subject matter of a closed meeting. The minutes paraphrase the statutory language without any additional description of the subject matter, thus providing no more than the general reference deemed insufficient by law. Presuming that the minutes accurately reflect the contents of a motion that was approved by vote, the motion lacked a subject and therefore failed to comply with the procedural requirements of FOIA. Alternatively, if there was a proper motion that did identify the subject of the meeting, then the minutes failed to properly set forth the contents of that motion. In either case, it appears that the procedural requirements of subsection A of § 2.2-3712 have not been satisfied.

Next addressing the certification requirement, subsection D of § 2.2-3712 sets forth the following mandatory procedure:

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 draft minutes submitted indicate that such a motion was made and approved by roll call vote. However, regarding the certification, the minutes state that the matters discussed in closed meeting were identified as Protecting Individual Privacy - Discussion of Matters Unrelated to Public Business, Informing the Members of a Public Body of Personal Situation of Individuals, Code of Virginia, §2.2-3711(A)5. The purpose identified in the certification (discussion of personal matters) is not the same as the purpose given in the prior description of the closed meeting (discussion of an unannounced prospective business or industry).⁴ However, despite the difference in described purposes, both sections of the minutes cite the same statutory subdivision regarding an unannounced prospective business or industry. After reading the description of the certification it is unclear whether the purpose of the meeting was to discuss an unannounced prospective business or industry, as first stated, or to discuss personal matters, as described subsequently. Regardless of what the actual purpose was, the second clause of subsection D of § 2.2-3712 requires the public body to certify that 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. Because the minutes appear to describe the discussion of two different matters, this certification requirement has not been met.

To be in compliance with the requirements of FOIA, 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.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹Freedom of Information Advisory Opinion 02 (2004).
²See Freedom of Information Advisory Opinions 01 (2005), 24 (2004), 8 (2002), 45 (2001), 38 (2001), and 8 (2001).
³See Freedom of Information Advisory Opinion 01 (2006).
⁴Note that subdivision A 4 of § 2.2-3711 permits a closed meeting to be held for the purpose of [t]he protection of the privacy of individuals in personal matters not related to public business. However, the minutes quoted did not cite that exemption.