FOI Advisory Council Opinion AO-02-04

January 16 , 2004

Mr. Wilkie W. Chaffin
Pamplin, 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 e-mail of December 3, 2003.

Dear Mr. Chaffin:

You have asked three questions concerning the Virginia Freedom of Information Act (FOIA).

First, you ask if a public body must give notice of the date, time and location for a meeting, even if the public body plans to enter into closed session as soon as the meeting begins. Subsection C of § 2.2-3707 of the Code of Virginia requires that [e]very public body shall give notice of the date, time, and location of its meetings by placing the notice in a prominent public location at which notices are regularly posted and in the office of the clerk of the public body, or in the case of a public body that has no clerk, in the office of the chief administrator. Once convened in a meeting, a public body may make a motion to go into a closed meeting. Subsection A of § 2.2-3712 states that [n]o 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. At the conclusion of the closed meeting, subsection D § 2.2-3712 requires the public body to reconvene in an open meeting and take a roll call or other recorded vote to be recorded 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 [FOIA] 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.

As these sections demonstrate, the public must be given notice of the time, date, and place of any meeting. Furthermore, a public body may only hold a closed meeting in the context of an open meeting. The public body must make a motion in open meeting to convene in closed session, and at the conclusion of the closed portion of the meeting, reconvene in open session to certify the closed meeting. Reading these sections together, even if the public body plans to convene in closed session at the beginning of a meeting, and the closed meeting discussion is the only item to be discussed, the public body must still provide notice of the time, date and location of the meeting. This ensures that the public will be aware of the meeting.

Your second question asks whether Prince Edward County ("the County") must release upon request a draft document concerning a proposed agreement between the County and the Town of Farmville ("the Town") to allocate raw water from the Sandy River Reservoir. You indicate that this draft document covers topics such as how much water the Town be allowed to use from the reservoir, who will pay for and maintain a pumping station at the reservoir, the process to be followed if water conservation is necessary, and other topics related to the potential agreement. You also indicate that this draft document has been presented to the entire Board of Supervisors and a few citizens at a closed meeting. You state that the County does not want to release the document to the public, and has suggested that the exemption for contract negotiations would protect the document from public disclosure. You ask if this would allow the County to withhold the draft agreement.

Subsection A 4 of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. The policy of FOIA at subsection B of § 2.2-3700 requires that the provisions of FOIA shall be liberally construed...[a]ny exemption from public access to records shall be narrowly construed. As noted in your question, there is a records exemption for certain records relating to contracts. Subdivision A 82 of § 2.2-3705 provides an exemption for:

Records relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body. Such records shall not be withheld after the public body has made a decision to award or not to award the contract. In the case of procurement transactions conducted pursuant to the Virginia Public Procurement Act, the provisions of this subdivision shall not apply, and any release of records relating to such transactions shall be governed by the Virginia Public Procurement Act.

Prior to the enactment of this exemption by the 2003 Session of the General Assembly, the FOIA Council received several questions concerning access to records and meetings relating to contract negotiations. A question similar to the one you have asked was the subject of a 2002 FOIA Advisory Opinion.1 The City of Virginia Beach asked if a public body may properly withhold records generated during contract negotiations, such as drafts and internal correspondence prepared for the purpose of negotiating with potential or current contractors. These records, if released, could adversely affect the public body's bargaining position. The City of Virginia Beach noted that many of these contract negotiations were undertaken in accordance with the Virginia Public Procurement Act (VPPA)(§ 2.2-4300 et seq.), but that not all contracts negotiated by a public body fall within the purview of the VPPA. In responding to the question, this office found that no general FOIA exemption existed for such records. Furthermore, while subsection D of § 2.2-4342 of the VPPA states that proposals submitted during a competitive negotiation are only open to the public after the contract is awarded, such exemption applies only to the proposals submitted by the offerors, and not to records created by a public body related to the negotiation of contract terms and conditions. Therefore, this office concluded that no exemption existed for records generated during contract negotiations, and suggested that because of the potential adverse effect on a public body's bargaining position, perhaps this was an issue that should be addressed by the General Assembly.

In response to this opinion and other related questions, the FOIA Council established a subcommittee during the 2002 interim. The subcommittee studied not only issues surrounding access to records generated during contract negotiations, but also discussions of contract negotiations by public bodies. At the recommendation of the subcommittee, the FOIA Council recommended the exemption now codified at subdivision A 82 of § 2.2-3705, as well as a corresponding meetings exemption at subdivision A 30 of § 2.2-3711.2

Read together, the Advisory Opinion noted above and decided under prior law, the discussions of the subcommittee, and the plain language of the records exemption at subdivision A 82 of § 2.2-3705 clearly indicate that this exemption was designed to protect records of any contract negotiation involving a public body. This negotiation may take place in the context of a competitive negotiation under the VPPA, or may be a negotiation that falls outside of the purview of the VPPA, such as the two localities negotiating the water allocation agreement in the facts you present. The draft agreement in question represents a part of the negotiation relating to the terms and conditions of the agreement. Release of the County's proposed draft to the public may be detrimental to the bargaining position of the County. Therefore, the draft agreement may properly be withheld from public disclosure until the County agrees to the contract or decides not to enter into the contract with the Town.

Your third question asks if the County can discuss the draft agreement in a closed meeting. As mentioned above, a corresponding meetings exemption was adopted with the contract negotiation records exemption. The exemption at subdivision A 30 of § 2.2-3711 exempts [d]iscussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract whether discussion in an open session would adversely affect the bargaining position of negotiating strategy of the public body. In the facts that you present, it would appear that the County was discussing the terms and scope of the proposed agreement with the Town. Therefore, the discussion would be an appropriate topic for a closed meeting.

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 04(2002).
2For a summary of the subcommittee work, see Report of the Virginia Freedom of Information Advisory Council, House Document No. 20 (2003), "Work of the Council."