June 20, 1975

Member, Senate of Virginia

74-75 569

This is in response to your recent letter wherein you inquire as follows: With reference to sec 2.1-344 of the Code of Virginia (1960) as amended, does the burden of proof in the abuse or overuse of the executive session by a unit of government rest on that unit of government to justify its use, or on the public who is excluded from the meeting?" "If the proof rests on the public, what kinds of evidence would be admissible for proving the abuse or overuse of the executive session as allowed by the Freedom of Information Act?"

With respect to your first inquiry, I would, first, direct your attention to the requirements of §2.1-344, subsections (b) and (c), Code of Virginia (1950), as amended. Section 2.1-344(b) requires that, prior to any executive meeting for purposes authorized in subsections §2.1-344 (a) (1) - (6), governmental bodies are required to record, in open session, an affirmative vote upon a motion to enter executive session and must state in such motion the purpose or purposes of such executive session. Section 2.1-344 (c) provides that no official action taken in executive session shall become effective until such time as the governmental body records, in open session, an affirmative vote in favor of the action taken in executive session. The foregoing statutory procedural requirements contained in the Freedom of Information Act, therefore, define the legal responsibility of governmental bodies in the use of executive meetings for legally authorized purposes.

Section 2.1-346, dealing with enforcement of the rights guaranteed by the Act, provides that any person denied the rights conferred by the Act may proceed to enforce those rights through a request for injunctive relief in a court of record, supported by an affidavit showing good cause. It is a generally applicable legal principle that one seeking injunctive relief carries the burden of presenting evidence to support such a request. I am, therefore, of the opinion that the burden of proof in seeking injunctive relief against violations of §2.1-344 or other provisions of the Act lies with the individual seeking such relief.

Your second inquiry regarding admissibility of evidence in proceedings for enforcement of the provisions of the Act cannot be answered generally but would require more specific facts relative to alleged violations. I direct your attention, however, to the provisions of §2.1-346, referred to above, which require submission of an affidavit containing facts showing good cause as a requisite portion of any petition for injunctive relief under the Act.