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October 2, 2001
Ms. Lucy E. Phillips Bright
County Attorney, County of Washington
Abingdon, Virginia
Mr. Patrick Mannix
Bristol, 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 Ms. Bright's correspondence dated
August 14, 2001, and Mr. Mannix's fax received August 27, 2001.
Dear Ms. Bright and Mr. Mannix:
You both have asked a question concerning a motion made by a
member of the Washington County Board of Supervisors ("the Board")
to enter into closed session under the Virginia Freedom of
Information Act (FOIA). The question has been raised as to the
sufficiency of the motion under the procedural requirements of
FOIA, as well as to whether the subject of the discussion was a
proper topic for a closed meeting. The motion in question read:
"Motion to enter closed meeting as allowed by Virginia Code
section 2.1-344(A)(5) for briefing of members of the Board on a
potential request to the County for financial assistance necessary
to obtain state financial assistance to contribute to funding of
possible expansion of an existing business or industry where no
previous announcement has been made of the business' or industry's
interest in expanding its facilities in the community."1
Subsection A of § 2.2-3707 of the Code of Virginia requires
that [a]ll meetings of public bodies shall be open, except as
provided in § 2.2-3711. Subsection A of § 2.2-3712
requires that in order to close a meeting, the public body must
make a motion in open session that (i) identifies the subject
matter, (ii) states that purpose of the meeting and (iii) makes
specific reference to the applicable exemption from open meeting
requirements. The Freedom of Information Advisory Council has
previously opined that a motion that lacks any of these three
elements would be insufficient under the law.2 Thus, in addition to a statutory
citation and tracking the general language of the exemption, the
motion must also contain a statement of purpose. This statement of
purpose need not be so specific as to defeat the reason for going
into closed session, but should at least provide the public with
general information as to why the closed session will be held. For
example, a public body might state that the subject of a closed
session would be a discussion of disciplinary action against a
employee, which goes a step beyond just stating that the purpose of
the meeting is to consider a personnel matter.
In the instant case, the Board entered closed session pursuant
to subdivision A. 5. of § 2.2-3711. The motion also provides
the purpose of the meeting, by tracking the language set forth in
the exemption that a closed session may be held to discuss the
expansion of an existing business or industry where no previous
announcement has been made of the business' or industry's interest
in ... expanding its facilities in the community. In addition,
the motion gives a more specific statement of the subject of the
meeting as it relates to the discussion of the expansion of an
existing business or industry. The motion states that the closed
meeting would be convened specifically so as to brief the "members
of the Board on a potential request to the County for financial
assistance to contribute to funding of possible expansion of an
existing business or industry." The motion contains all three
elements required to enter into closed session, and thus satisfies
the requirements set forth at subsection A of § 2.2-3712.
Because the motion itself satisfies the procedural requirements
of FOIA, the inquiry now turns as to whether the discussion was
actually the proper subject of a closed meeting under that
particular exemption. A question has been raised as to whether a
potential request for financial assistance relating to the
expansion of an existing business or industry may properly be
exempt from the open meeting requirements. The exemption covers
discussions concerning ... the expansion of an existing business
or industry. The exemption does not specify that such a
discussion may only be held in closed session after the plans to
expand are definite or finalized. The purpose and policy behind the
exemption seems to be best interpreted as to aid the economic
development process and protect the negotiation that accompanies a
decision by a business to expand within a locality. The incentives
offered by a locality to local businesses often change with the
circumstances, and thus there is often the possibility that
discussions may touch on a variety of potential options for
both the locality and the business, such as monetary grants, tax
credits, or land. Thus, the subject of discussion in the instant
case falls within the scope of the discussions intended to be
protected by the exemption. The public body is discussing a
potential economic incentive that might be offered to a business or
industry considering expanding in the locality.
In conclusion, the discussion by the Board may be properly
closed pursuant to the exemption found at subdivision A. 5. of
§ 2.2-3711. Furthermore, the motion offered by the public body
to enter into closed session satisfies the three procedural
requirements of FOIA, in that it states the specific statutory
exemption, the subject, and the purpose of the closed session.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. Motion to enter into closed session was made
before Title 2.1 of the Code of Virginia was recodified to Title
2.2, effective October 1, 2001. The current citation for the
exemption cited in the motion is 2.2-3711(A)(5). This opinion will
refer to Title 2.2 citations, which is the version of the law in
effect at the time when this opinion is being issued.
2. Virginia Freedom of
Information Advisory Opinion 14 (2001), Virginia Freedom of Information Advisory Opinion 38
(2001).
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