August 25, 1975

THE HONORABLE GLENN B. McCLANAN
Member, House of Delegates

75-76 410

Your recent letter, together with enclosure, requests my opinion regarding an inquiry arising under the Virginia Freedom of Information Act, Chapter 21, Title 2.1, Code of Virginia (1950), as amended. In your letter you ask:

"Is it permissible under the provisions of the Virginia Freedom of Information Act for a city manager to distribute to all the members of the city council a letter whose subject matter would not be permitted for discussion during an executive session? Further, does the Virginia Freedom of Information Act apply equally to written and oral communications?"

The Virginia Freedom of Information Act guarantees, to the public, certain rights relative to the conduct of public business by governmental bodies, agencies and institutions. The Act focuses upon the transaction of public business by governmental bodies at two critical points. First, the Act addresses record keeping, guaranteeing in §2.1-342(a) that all official records, except as provided in the Act itself or other provisions of law, shall be open to public inspection. Secondly, the Act addresses meetings of public bodies, providing in §2.1-343 that all "meetings" shall be open to the public except as provided by specific statutory exception. There is, in my view, no provision of the Freedom of Information Act which would prohibit the City Manager's transmittal of a letter to Council by mail or hand delivery in a public meeting. A letter so distributed would constitute an official record of the Office of the City Manager and as such would be subject to the public disclosure requirements of §2.1-342(a).

The remaining question is, therefore, whether distribution of a letter during an executive meeting is in violation of the Act. The constraints placed upon governmental bodies meeting in executive session are, first, that no matter be discussed which is not authorized by the Act as appropriate for executive discussion and, secondly, that executive discussion be limited to those appropriate subjects announced by the governmental body, in public, prior to the executive meeting as required by §2.1-344(b). See Report of the Attorney General (1972-1973) at 488. Your letter indicates that, following the distribution of the letter, there was no discussion or decision by Council during the executive meeting relative to the subject matter of the letter. Accordingly, I am of the opinion that distribution of a letter during an executive meeting without discussion does not constitute a violation of the Act. The letter, however, would constitute an official record of the Office of the City Manager subject to disclosure under §2.1-342(a), irrespective of the fact that it was distributed in an executive meeting and was marked confidential.