VIRGINIA FREEDOM OF INFORMATION ACT. EXECUTIVE OR CLOSED MEETINGS. "POTENTIAL LITIGATION" AND "LEGAL MATTERS" EXEMPTIONS.

July 7, 1982

The Honorable Glenn B. McClanan
Member, House of Delegates

82-83 716

This is in reply to your recent letter asking under what circumstances a public body may meet in executive session pursuant to the "potential litigation" and "legal matters" exemptions from the open meeting requirement of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act").

This Office has previously held that §2.1344(a)(6)¹ is "designed to allow private discussions concerning...specific potential legal disputes..." and "specific legal questions..."² (Emphasis added.) The Supreme Court of Virginia has held that "[i]t is neither necessary nor in the public interest to require as a prerequisite to closing a meeting pursuant to §2.1-344(a)(6) that the governing body disclose in detail the legal matters or the legal issues to be considered...." Marsh, et al. v. Richmond Newspapers, Inc., et al., 223 Va. ____ , 228 S.E.2 d 415 (1982). It is mandatory, however, that the language of the specific statutory exemption be used in the motion to go into executive session. See §2.1-344(b). Consequently, although a public body need not state in its motion the specific case or other legal matter to be discussed, there must exist a specific potential legal dispute or a specific legal question which will be discussed in the executive meeting.

Although I would not attempt to detail each situation that would come within the §2.1-344(a)(6) exemption, following are several examples taken from previous Opinions of this Office.

1) Pending or potential obscenity prosecution of theater operators may be discussed in executive session.³

2) Consideration of terms of proposed contractual arrangements with specific auto repair firms may be discussed in executive session.⁴

3) Consideration of whether a particular provision of a zoning ordinance is constitutionally valid.⁵ I am of the opinion, therefore, that exemptions from the public meetings requirement for discussion of "potential litigation" or "other legal matters" under §2.1-344(a)(6) apply only when such discussions deal with specific potential legal disputes and specific legal questions confronting the public body.

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Footnotes:

1 Section 2.1-344(a)(6) allows executive or closed meetings for the purpose of "[c]onsultation with legal counsel and briefings by staff members, consultants or attorneys, pertaining to actual or potential litigation, or other legal matters within the jurisdiction of the public body, and discussions or consideration of such matters without the presence of counsel, staff, consultants, or attorneys."

2 1980-1981 Report of the Attorney General at 389.

3 1980-1981 Report of the Attorney General at 387.

4 Id.

5 198O-1981 Report of the Attorney General at 389. For purposes of 2.1-344 (a) (6), it would make no difference whether the challenged ordinance has been actually adopted or is only proposed for adoption.