VIRGINIA FREEDOM OF INFORMATION ACT. CLOSED MEETINGS. PUBLIC BODY MAY ADMIT THOSE PERSONS NECESSARY OR HELPFUL TO PUBLIC BODY'S CONSIDERATION OF TOPIC WHICH PURPOSE OF CLOSED MEETING.

July 11, 1985

850711

The Honorable C. Dean Foster, Jr.
County Attorney for Scott County

You ask under what circumstances a public body may allow certain individual members of the public to attend a duly authorized executive or closed session of the public body without thereby opening the meeting to the public generally.

The Virginia Freedom of Information Act, §§2.1-340 through 2.1- 346.1 of the Code of Virginia (the "Act"), requires that all meetings of public bodies be public meetings, except as otherwise specifically provided by law. See §2.1-343. Section 2.1-344 sets out strict substantive and procedural requirements for executive or closed meetings, and the Act further provides that it is to be interpreted to carry out the salutary purposes of freedom of information laws. See §2.1-340.1.

It has been your practice to advise those public bodies you represent which are subject to the Act that they may permit nonmembers to attend duly authorized closed or executive sessions of the public body with the caveat that the basis for inclusion or exclusion for attendance of nonmembers cannot be arbitrary, and that the nonmembers may be there only if their attendance is connected to, has a purpose related to, or otherwise bears a rational relationship to the specified subject matter for which the executive session is authorized by the Act.¹ The question has arisen as to whether the closed status of a meeting is destroyed by the admission of persons who are not members of the public body.

The Act defines a closed meeting as "a meeting from which the public is excluded." Section 2.1-341(c). Prior Opinions of this Office have held, however, that the Act does not prohibit a public body from allowing nonmembers to attend closed meetings. See Reports of the Attorney General: 1979-1980 at 385; 1976-1977 at 308(2); 1973-1974 at 453(2). Although the statutes comprising the Act have been amended repeatedly subsequent to publication of each of the above-cited Opinions, none of the amendments has had the effect of overruling this interpretation of legislative intent, and it, therefore, may be considered correct. See Browning-Ferris v. Commonwealth, 225 Va. 157, 300 S.E.2 d 603 (1983); Deal v. Commonwealth, 224 Va. 618, 299 S.E.2d 346 (1983).

Taking all of the above into consideration, it is my opinion that a public body may admit certain nonmembers to a closed meeting without destroying the closed status of the meeting. This conclusion is consistent with the prior Opinions cited above and with the practical requirements of government.² A public body may, therefore, admit those persons deemed necessary or whose presence will reasonably aid the public body in its consideration of a topic which is the subject of a properly convened closed meeting.

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Footnotes:

1. You suggest two examples: discussion or negotiation with a landowner and his legal counsel under §2.1-344(a)(2), or discussion or negotiation with a new business or industrial prospect under §2.1- 344(a)(4); the landowner, his attorney and the prospect being nonmembers.

2. Section 2.1-344(a) enumerates allowed purposes for closed meetings, expressing the General Assembly's policy judgment that, in certain limited situations, discussion of issues may be permitted to take place out of the presence of the public at large, subject to the requirement that any action of the public body taken in a closed meeting be voted on by the members in an open meeting prior to the action becoming effective. See §2.1-344(c). Furthermore, although closed meetings are authorized in certain situations by §2.1-344(a), the Act does not require that there be a closed meeting; the public body has the discretion as to whether to convene a closed meeting in such circumstances.