Attorney General's Opinion 1972-73 #492

September 25, 1972

THE HONORABLE DONALD G. PENDLETON
Member, House of Delegates

72-73 492

This will acknowledge receipt of your recent inquiry relative to the application of the Freedom of Information Act to a situation in which the Campbell County School Board recently held a closed "informal session" for the purpose of discussing personnel matters. According to the information supplied in your letter the pertinent facts may be summarized as follows:

(a) No notice of the meeting was announced to the public in general and, in particular, to the news media; (b) No vote was taken to go into executive session; (c) No minutes were taken during the "informal meting" nor were votes recorded; (d) The "informal session" apparently involved personnel problems with high-level school board employees; (e) No proof exists of any formal action taken by the county school board during the executive session, although two top-level employees, according to your information, have left the employ of the school board since the secret session.

Your letter poses four questions for resolution:

1. Was the meeting held on August 31, 1972, legal or illegal according to the Code of Virginia, Chapter 21 (Virginia Freedom of Information Act)?

2. If, in fact, the meeting was illegally held behind closed doors can the actions of the meeting be held secret?

3. If, in fact, any action was taken in the session, is this action valid?

4. Are the public bodies covered under the Freedom of Information Act required to make public any or all planned meetings? Or, what is required of the news media to insure that they are legally notified of all such meetings?

Your questions require an examination of the Freedom of Information Act which was first enacted by the General Assembly in 1968 to require, among other things, that all meetings of State and local agencies, boards and commissions be open to the public. The Act, unequivocally requires that:

"Except as otherwise specifically provided by law and except as provided in §§2.1-344 and 2.1-345, all meetings shall be public meetings." Section 2.1-343 of the Code of Virginia (1950), as amended. (Emphasis supplied.)

Application of the label "informal session" as a means of circumventing the requirements of the Act is not permissible, for the 1970 General Assembly amended the Freedom of Information Act to erase any distinction between formal and informal meetings. Section 2.1-341 now defines meetings in unmistakable terms: meeting or meetings "means the meetings, when sitting as a body or entity, or as an informal assemblage of the constituent membership, with or without minutes being taken, whether or not votes are cast . . .." (Emphasis supplied.) The Freedom of Information Act applies to all State and local agencies, institutions, departments, authorities, and other organizations supported wholly or principally by State funds unless otherwise exempted by law.

Section 2.1-345 exempts from the Freedom of Information Act committees of the General Assembly, legislative and gubernatorial study commissions and committees; also excluded are certain other boards and committees, including "study commissions or committees appointed by the governing bodies of counties, cities and towns, provided that no committee or commission appointed by such governing bodies, the membership of which consists wholly of members of such governing body, shall be deemed to be study commissions or committees under the provisions of this section."

The Freedom of Information Act specifically forbids the convening of executive or closed meetings except for the purposes set forth in Code §2.1-344:

(1) "Discussion or consideration of employment, assignment, appointment, promotion, demotion, salaries, disciplining or resignation of public officers, appointees or employees of any public body.

(2) Discussion or consideration of the condition, acquisition or use of real property for public purpose, or of the disposition of publicly held property.

(3) The protection of the privacy of individuals in personal matters not related to public business.

(4) Discussion concerning a prospective business or industry where no previous announcement has been made of the business' or industry's interest in locating in the community.

(5) The investing of public funds where competition or bargaining are involved, where if made public initially the financial interest of the governmental unit would be adversely affected.

(6) Consultation with legal counsel and briefings by staff members, consultants or attorneys, pertaining to pending litigation, or legal matters within the jurisdiction of the public body, including legal documents.

(7) Discussion of any matter which will be the topic of a public hearing prior to a final decision, provided that notice of every such public hearing shall be published generally in the community not less than ten days prior to such public hearing."

It should be emphasized at this point that a unit of government covered by the Act cannot go into executive session to discuss any matter not covered by §2.1-344; nor can it go into an executive session to discuss one item permitted by law and then to proceed to a discussion of other matters not authorized by the Act.

There are procedural requirements that must be strictly observed once it has been determined that a particular item of business, which falls within §2.1-344, should be discussed in executive session. Section 2.1-344(b) requires that "no meeting shall become an executive or closed meeting unless there shall have been recorded an affirmative vote to that effect by the public body holding such meeting." Further, §2.1-344(c) states that "no resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in an executive or closed meeting shall become effective unless such public body, following such meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation or motion." Failure to comply with the above-mentioned procedural requirements would nullify the action taken by the public body in question.

In reviewing the above mentioned sections, it is clear, therefore, that, in enacting the Freedom of Information Act, the General Assembly intended to forbid certain practices of public exclusion by public bodies from the decision-making process and to place upon those units of government the responsibility of conducting the public's business in public. Any person denied the rights and privileges conferred by the Freedom of Information Act may proceed to enforce such rights in an appropriate court, and the General Assembly has provided in §2.1-346 of the Code that such actions ". . . shall be given precedence on the docket of such court over all cases which are not otherwise given precedence by law."

Accordingly, in response to your questions, I am of the opinion that:

(1) the meeting held on August 31, 1972, by the Campbell County School Board was in contravention of the Freedom of Information Act;

(2) if any votes were recorded or minutes taken, they must be disclosed;

(3) any action taken during the closed session would not be valid.

In regard to your final question, §2.1-343 requires that "information as to the time and place of each meeting shall be furnished to any citizen of this State who requests such information."