FOI Advisory Council Opinion AO-03-10

AO-03-10

June 11 , 2010

Robert B. Weir
Haymarket Town Council
Haymarket, 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 of May 19, 2010 and telephone conversation of May 20, 2010.

Dear Mr. Weir:

You have asked whether the Mayor of the Town of Haymarket (the Mayor) may demand the return of all papers distributed during a closed meeting of the Town Council, as well as notes taken by individual members of the Council during the closed meeting. As factual background, you indicated that certain documents had been distributed to some council members prior to a meeting, that the same documents were distributed to all council members during the closed portion of the meeting, and that the mayor demanded the return of all copies of the documents at the end of the closed meeting. Furthermore, you indicated that some individual members had taken notes during the closed meeting, and that the mayor demanded those notes be turned over to her as well.

Generally, the Virginia Freedom of Information Act (FOIA) requires that all meetings of public bodies be open to the public and that minutes be taken summarizing the events of such meetings.1 However, meetings held for certain purposes may be closed to the public.2 FOIA also provides an exception to the usual rules on keeping minutes and a records exemption for certain records used or prepared in closed meetings. Specifically, subsection H of § 2.2-3712 that [m]inutes may be taken during closed meetings of a public body, but shall not be required. Such minutes shall not be subject to mandatory public disclosure. Additionally, subdivision 5 of § 2.2-3705.1 exempts [r]ecords recorded in or compiled exclusively for use in closed meetings lawfully held pursuant to § 2.2-3711. However, no record that is otherwise open to inspection under this chapter shall be deemed exempt by virtue of the fact that it has been reviewed or discussed in a closed meeting. Following these provisions, it is clear that minutes of closed meetings (if any are taken), records recorded in closed meetings (such as individual members' notes), and records prepared exclusively for use in closed meetings (which may include records prepared solely for distribution and use by members during a closed meeting) are all exempt from mandatory disclosure under FOIA.

However, FOIA itself does not directly answer your questions regarding the authority of a mayor to take such records from individual council members at the conclusion of a closed meeting. Generally, it is my understanding that sometimes public bodies distribute materials considered confidential or sensitive to members for use during a closed meeting and then take them back at the conclusion of the meeting. While this practice appears to be widespread and long-standing, FOIA does not address it. Therefore we must turn to other sources to attempt to answer your questions.

Looking outside of FOIA, research revealed no published opinions from the courts or the Office of the Attorney General that address the issues you have brought forth. The Charter for the Town of Haymarket, however, does set out the powers and duties of the office of Mayor,3but it does not appear on its face to directly address the questions you raise concerning the authority of the Mayor to take records and notes from members used in closed meetings of the town council. It is unknown whether the town council has adopted any resolutions, bylaws, parliamentary rules or other measures that may answer your questions. In regard to the powers of cities and towns generally, § 15.2-1106 appears to address certain aspects of record-keeping by a locality, but it also does not directly answer the questions you present.4Furthermore, it would be beyond the statutory authority of this office5 to opine on whether this section or other law outside FOIA may be interpreted to grant a mayor authority to reclaim documents distributed to town council members, or to take from them their personal notes written during closed meetings. I would therefore suggest that you may wish to refer this matter to your town attorney.

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

Sincerely,Maria J.K. Everett
Executive Director

1See §§ 2.2-3700 and 2.2-3707.
2See §§ 2.2-3711 and 2.2-3712.
3See Charter of the Town of Haymarket, art. III § 1(7), available at http://dls.state.va.us/lrc/charters/Haymarket.pdf (last accessed June 10, 2010).
4In full, § 15.2-1106 reads as follows: A municipal corporation shall provide for the control and management of the affairs of the municipality, and may prescribe and require the adoption and keeping of such books, records, accounts and systems of accounting by the departments, boards, commissions, courts or other agencies of the local government as may be necessary to give full and true accounts of the affairs, resources and revenues of the municipal corporation and the handling, use and disposal thereof.
5See Va. Code § 30-179 (setting forth the powers and duties of the FOIA Council).