VIRGINIA FREEDOM OF INFORMATION ACT. REPORTS COMPILED EXCLUSIVELY FOR EXECUTIVE SESSION LOSE THEIR EXEMPT STATUS IF ESSENCE OF SUBTANCE AND CONTENTS WERE SUBJECTS OF DISCUSSION IN OPEN MEETINGS.

October 21, 1982

The Honorable Douglas K. Baumgardner,
Commonwealth's Attorney for the County of Rappahannock

82-83 729

This is in reply to your recent letter in which you request my opinion regarding the application of the Virginia Freedom of Information Act, 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act") to certain architectural reports.¹ Your letter, with enclosures, indicated that the reports in question were discussed in open session although they had been prepared to be used in executive session

Your inquiry presents the following questions;

1. Is the Superintendent of schools for a local school division Considered the "chief executive officer" of a political subdivision of the Commonwealth under the Act?

2. Are draft architectural reports and analyses regarding a proposed new administrative facility Considered working papers and/or records recorded in or compiled exclusively for executive or closed meetings lawfully held pursuant to 2.1-344 and therefore excluded from the mandatory disclosure requirements of the Act?

Section 2.1-342(b)(4) provides;

"(b) The following records are excluded from the provisions of this chapter; *** (4) Memoranda, working papers and correspondance held or requested by...[the] chief executive of political subdivision of the Commonwealth.....

This Office has consistently held that for purposes of the Act school boards are political subdivisions and the Superintendents are their chief executive officers.² Therefore, if the reports were held by the Superintendent of schools, they would be exempt from mandatory disclosure under the Act. This exemption, however, does not apply to similar records held by the school board³ and once the superintendent disseminates records held by him to the school board those records lose the exemption accorded by 2.1-342(b)(4).

Section 2.1-342(b)(11) excludes from mandatory disclosure, among other records,

"Memoranda, legal opinions, working papers and records recorded in or compiled exclusively for executive or closed meetings lawfully held pursuant to 2.1-344."

You state that the records in question are draft architectural reports and analyses. If the documents were prepared exclusively for an executive meeting which was lawfully held pursuant to 2.1-344, then they would be exempt unless subsequent actions were taken which caused the documents to lose their exemption.⁴

Although the documents in question may have been prepared exclusively for executive session, you indicate that the public body discussed the reports in open session in addition to the discussion in executive session. If the essence of the report was disclosed by the public body in open session, I am of the opinion that the reports lost the privileged protection provided in the exemption of 2.1-342(b)(11). To hold otherwise would allow report prepared for a public body to be exempt from mandatory disclosure even if it were disclosed in open session as long as it was purportedly prepared for executive session. Such a result would be contrary to the purpose of the Act.

The mere fact that reference is made in public session to a report lawfully received in executive session will not, however, cause the report to lose its exemption. It necessarily becomes a factual determination whether the board's public discussion has so revealed the essence of the report's content that the report has, by reason of the public discussion, become a part of the public domain.⁵

In summary, I am of the opinion that the superintendent of schools is considered to be the chief executive officer of a political subdivision of the Commonwealth for the purposes of the Act Additionally, I conclude that the draft architectural reports and analyses would not be exempt from the mandatory disclosure requirements of the Act under 2.1-342(b)(11) if the essence of their substance and contents were the subject of discussion in open meeting, even though they may have been initially prepared exclusively for use in executive session.

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FOOTNOTES

1 Based upon the definition of "official records" contained in 2.1-341(b) it is apparent that the reports are official records for purposes of the Act.

2 See 1980-1981 Report of the Attorney General at 395 and 1976-1977 Report of the Attorney General at 315 and 317.

3 See 1976-1977 Report of the Attorney General at 315 and 317.

4 Section 2.1-344 permits a public body to meet lawfully in executive session to discuss the condition, acquisition or use of real property for public purposes and to receive briefings by staff members on legal matters within the jurisdiction of the body. See 2.1-344 (a) (2) and 2.1-344 (a) (6). Of course, the public body may not take final action in such a meeting. See 2.1-344(b).

5 In reaching this conclusion, I believe it is necessary to focus on the action of the public body, as such, in revealing the content of an otherwise exempt report, and not on the unilateral statements of a board member who, whether in public session or not, comments on such a report.