Attorney General's Opinion 1983-84 #441

VIRGINIA FREEDOM OF INFORMATION ACT. EXECUTIVE MEETINGS. DEFINITIONS. ACT DOES NOT PROHIBIT TAKING OF MINUTES DURING EXECUTIVE MEETING, NOR IS TAPE RECORDING BY MEMBER AT SUCH MEETING PROHIBITED.

January 27, 1984

The Honorable Joseph L. Howard, Jr.,
County Attorney for Washington County

83-84 441

This is in response to your request for an opinion whether any provision of the Code of Virginia would prohibit a member of the board of supervisors from tape recording a duly called executive meeting of the board.

The Virginia Freedom of Information Act, § 2.1-340 through §2.1-346.1 of the Code of Virginia (the "Act") defines an "executive meeting" as "a meeting from which the public is excluded." § 2.1-341(c). Section 2.1-344 specifies the purposes for which executive meetings may be held and the procedure involved. Although § 2.1-344 does not require that minutes be taken at executive meetings, it does not prohibit the taking of such minutes. In fact, the section implies that minutes will be taken, because in order for anything proposed, discussed and voted on in an executive session to become effective, it must be voted on at the public meeting and must "have its substance reasonably identified in the open meeting " prior to being put forward for a vote. See § 2.1-344(c). In order for the substance to be reasonably identified in the open meeting, it can be assumed that some form of notes or minutes may be kept at the executive meeting.

It is, therefore, my opinion that the Act does not prohibit the taking of minutes during an executive meeting. Because recording is an acceptable method of memorializing a meeting, it is reasonable to conclude that the Act does not prohibit taping of an executive meeting by one of the members present at the meeting. This conclusion should not be construed to mean that such a recording is subject to required public disclosure. See 1978-1979 Va. AG 313.