FOI Advisory Council Opinion AO-07-00

October 17, 2000

Ms. Becky Dale
Richmond, VA

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 letter dated September 11, 2000

Dear Ms. Dale:

You have asked whether, under the current Virginia Freedom of Information Act (FOIA), a lawyer must be present at a closed meeting when subdivision A 7 of § 2.1-344 of FOIA is used as a basis to close the meeting.

Subdivision A7 of § 2.1-344 authorizes a public body to hold a closed meeting for the following purpose:

"Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. For the purposes of this subdivision, "probable litigation" means litigation which has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter."

Subdivision A7 of § 2.1-344 provides two distinct situations where a public body may hold a closed meeting:

1. Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and

2. Consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.

In the first instance, where the discussion is related to actual or probable litigation, legal counsel need not be present. This exemption may be properly invoked where there are briefings by staff members or consultants and such briefings pertain to actual or probable litigation.

In the second instance, legal counsel would have to be present because, on its face, this part of the exemption applies only to "consultations with legal counsel."

You have also asked for an opinion on "whether the law in 1996 would have required a lawyer to be present when a board closed a meeting to discuss other specific legal matters." The Freedom of Information Advisory Council was created in July 2000 to encourage and facilitate compliance with the Freedom of Information Act. In this particular instance, exploration of the law as it existed in 1996 would not encourage compliance with the law as it exists now. Additionally, because the current law is clear on its face, comparison with prior law is unnecessary.

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