AO-13-09

December 17, 2009

Anthony C. Williams, Esq.
City Attorney
City of Winchester
Winchester, 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 message of November 13, 2009.

Dear Mr. Williams:

You have asked whether a particular motion to convene a closed meeting was made in compliance with the requirements of the Virginia Freedom of Information Act (FOIA). As background for your inquiry, you stated that City Council of the City of Winchester (the Council) was considering a real estate transaction involving a local university. The Council convened a closed meeting to consult with the City Attorney about the legal ramifications of a memorandum of agreement (MOA) the City received from the university concerning the real estate transaction. You further relate that in full, the motion to convene the closed meeting was made as follows: Motion to convene into executive session for consultation with legal counsel as described in § 2.2-3711(A)(7) of the Code of Virginia and for discussion of real estate where public discussion would adversely affect the negotiating strategy as described in § 2.2-3711(A)(3) of the Code of Virginia. You indicated that the Council received legal advice from the City Attorney, including the opinion that the City Manager could execute the document without action from the Council. Subsequently, the City Manager did execute the MOA and it was released as a public document. You stated that after release of the MOA, a local newspaper raised a concern that the subject of the closed meeting had not been properly identified in the motion as required by FOIA.

The policy of FOIA set forth in § 2.2-3700 provides 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. Applying this policy, subsection A of § 2.2-3707 mandates that [a]ll meetings of public bodies shall be open, except as provided in §§ 2.2-3707.01 and 2.2-3711.¹ Exemptions and procedural rules for conducting a closed meeting are set forth in §§ 2.2-3711 and 2.2-3712. The specific requirements for a motion to convene a closed meeting are set forth in subsection A of § 2.2-3712, which reads in full as follows:

Following these provisions, a motion to convene a closed meeting must contain 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

Through years of experience it appears 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 why the closed meeting will be held. For example, a public body might state that the subject of a closed meeting would be to discuss disciplinary action against an employee of the public body. This statement goes a step beyond just stating that the purpose of the meeting is to consider a personnel matter, but does not go so far as to disclose the identity of the individual being discussed and defeat the reason for the closed meeting.³

In identifying the purpose of a closed meeting, it is helpful to keep in mind the introductory language of subsection A of § 2.2-3711: Public bodies may hold closed meetings only for the following purposes. This introductory language makes clear that the exemptions themselves identify the purposes for which closed meetings may be held. It follows that quoting or paraphrasing a statutory exemption may serve to identify the purpose of a closed meeting. It also follows that because the exemptions identify purposes, and subsection A of § 2.2-3712 requires that the subject matter and purpose of a meeting be identified as separate elements, quoting or paraphrasing one of these statutory exemptions does not properly identify the subject of the meeting. Quoting or paraphrasing from a statutory exemption, by itself, identifies the purpose of the meeting but is no more than a general reference to an authorized exemption from open meeting requirements. Therefore, following subsection A of § 2.2-3712, it is clear that merely quoting or paraphrasing a statutory exemption and providing a citation to that exemption, without more, is not sufficient to satisfy the requirements for holding a closed meeting. However, note that by quoting or paraphrasing a statutory exemption, and by providing the proper statutory citation, two of the three elements for a closed meeting motion are satisfied, leaving identification of the subject as the only remaining element.

You indicated that you believe that the quoted motion contained all three necessary elements to be a proper motion in compliance with FOIA. Specifically, you indicated that the subject matter of the meeting was consultation with legal counsel and discussion of real estate, the purpose of the meeting was legal advice and to avoid adversely affecting the negotiating strategy of the City, and the applicable exemptions were subdivisions A 3 and A 7 of § 2.2-3711. There can be no doubt that the citations to subdivisions A 3 and A 7 of § 2.2-3711 satisfy the requirement to make specific reference to the applicable exemption from open meeting requirements, so no further consideration of that aspect of the motion is necessary.

Regarding subject and purpose, first consider the real estate matters exemption, subdivision A 3 of § 2.2-3711, which reads in full as follows: Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body. Contrast that language with the language used in the motion at issue: discussion of real estate where public discussion would adversely affect the negotiating strategy as described in § 2.2-3711(A)(3) of the Code of Virginia. The language of the motion for the most part tracks the language of the statutory exemption, without adding any additional content. You assert that the discussion of real estate is a separate subject with the purpose being to avoid adversely affecting the negotiating strategy of the City. However, both of these phrases are contained within the language of the exemption, demonstrating that they are both parts of a single purpose as set forth in the statutory language.

Similarly, consider the relevant language of the legal matters consultation exemption, subdivision A 7 of § 2.2-3711: consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. Compare that to the language used in the motion: consultation with legal counsel as described in § 2.2-3711(A)(7) of the Code of Virginia. Again, the language of the motion mostly tracks the language of the statutory exemption without providing any further information. Contrary to your contention, consultation with legal counsel is not a separate subject, but is wholly encompassed in the language of the exemption as part of the purpose of the closed meeting, just as is the provision of legal advice. Again, both phrases describe the purpose of the meeting as set forth in the exemption, both are necessary for the exemption to apply, and neither identifies the subject of the meeting. With regard to both of the cited exemptions, the language used in the motion paraphrases the statutory language and provides no more than a general reference to the exemption. As such, following subsection A of § 2.2-3712, the motion was insufficient to satisfy the requirements for holding a closed meeting.

Let us next consider how FOIA could have been satisfied in this situation. Presuming that the City was purchasing property,⁴ the City could have moved "to convene a closed meeting to receive legal advice from counsel regarding a memorandum of agreement received from a third party regarding the acquisition of real property pursuant to subdivisions A 3 and A 7 of § 2.2-3711." In this way, the public and news media would be aware that the City had received a MOA about a real estate matter, but would not know the contents of the MOA, who were the parties involved, what real estate was to be acquired, any terms of a proposed deal, or what advice was provided by counsel. Alternatively, if it was known that the university was involved, the motion might have been "to convene a closed meeting regarding the acquisition of real property from a university and to receive legal advice from counsel regarding this transaction pursuant to subdivisions A 3 and A 7 of § 2.2-3711." Another alternative, if the City was acquiring real estate for a particular purpose, would be for the motion to identify the subject by reference to that purpose. For example, "to convene a closed meeting to receive legal advice from counsel concerning the acquisition of real property to be used to build a new City park (or office building, theatre, jail, or whatever the case may be), pursuant to subdivisions A 3 and A 7 of § 2.2-3711." These are just a few examples of ways in which the subject of a closed meeting might be identified by providing more than a general reference to the statutory exemption, but without revealing information that would spoil a deal or reveal legal advice. There really is no limit to the number of possible variations, so long as the motion contains something more than a reference to, quote from, or paraphrase of a statutory exemption.

Finally, you also raised a concern over a possible conflict between the FOIA requirement to identify the subject of a closed meeting and rules of conduct and ethics applicable to attorneys that forbid the attorney from revealing client confidences. Specifically, the concern is that by requiring identification of the subject of a meeting closed for the purpose of consultation with legal counsel, FOIA might force the attorney for the public body to reveal a client confidence. These concerns are misplaced, however, because FOIA does not place any duty upon an attorney for a locality to identify the subject of a closed meeting. That duty is placed upon the public body - i.e., the client - not the attorney. Applying this reasoning in this situation, FOIA requires the City Council to identify the subject of its meetings. FOIA in no way requires the City Attorney - who is not a member of City Council - to identify the subject of a City Council meeting or any client confidences. As a practical matter, the City Attorney may advise the City Council on whether it should hold a closed meeting and, if so, what exemption(s) to use and how to phrase its motion to convene the closed meeting. However, the duty to make the motion remains with the City Council, not the City Attorney. Therefore the City Attorney's duty to maintain client confidences is entirely separate from the City Council's duty to comply with FOIA; there is no conflict to be resolved.

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

Sincerely,

Maria J.K. Everett
Executive Director