ADMINISTRATION OF THE GOVERNMENT GENERALLY - VIRGINIA FREEDOM OF INFORMATION ACT. EMINENT DOMAIN - CONDEMNATION GENERALLY. RECORDS RELATED TO BONA FIDE OFFERS FOR LAND PURCHASES MADE PURSUANT TO §25-46.5 EXCEPTED FROM ACT'S MANDATORY DISCLOSURE REQUIREMENT UNDER §2.1-342(b)(5).

May 30, 1987

Honorable Frank Medico
Member, House of Delegates

86-87 28

You ask whether certain records held by Fairfax County are subject to the mandatory disclosure of official records requirement of §2.1-342(a) of the Code of Virginia, a portion of the Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 (the "Act").

I. Facts

You state that Fairfax County has made offers to purchase certain residential and commercial property for a proposed office building pursuant to §25-46.5, a portion of the Virginia General Condemnation Act, §§25-46.1 through 25-46.36. The county has denied a community association's request for access to records associated with the offers and responses. The request was denied by the county based upon the exception to the Act's mandatory disclosure requirement set out in §2.1-342(b)(5).

You further state that without the specific data on offers and related responses, the community association cannot effectively prepare itself for public hearings or eventual condemnation proceedings. You ask, therefore, whether records related to bona fide offers for land purchases made pursuant to §25-46.5 and related responses are excepted from the Act's mandatory disclosure requirement.

II. Applicable Statutes

The Act's requirement of mandatory disclosure of official records is set out in §2.1-342(a). Among the exceptions to this requirement are "[m]emoranda, working papers and records compiled specifically for use in litigation or as a part of an active administrative investigation concerning a matter which is properly the subject of an executive or closed meeting under §2.1-344 and material furnished in confidence with respect thereto." Section 2.1-342(b)(5). Section 2.1-344(a)(2) authorizes executive or closed meetings of public bodies for the purpose of

[d]iscussion or consideration of the condition, acquisition or use of real property for public purpose, or of the disposition of publicly held property, or of plans for the future of a state institution of higher education which could affect the value of property owned or desirable for ownership by such institution.

Section 25-46.5 provides, in part, that "[n]o proceedings shall be taken to condemn property until a bona fide but ineffectual effort has been made to acquire from the owner by purchase the property sought to be condemned."

III. Requested Records Excepted from Mandatory Disclosure Requirement

It is clear that the requested records are "official records" subject to the Act's mandatory disclosure requirement unless one of the Act's exceptions applies. See §2.1-341(b). It is also well established that the acquisition of real property for a public purpose is a valid purpose for a closed meeting of a public body. See §2.1-344(a)(2); see also Reports of the Attorney General: 1983-1984 at 443; 1981-1982 at 439; 1980-1981 at 386, 387; 1978-1979 at 315. The questions presented by your inquiry, therefore, are whether the requested records were compiled "specifically for use in litigation" or "as part of an active administrative investigation."

The records in question, the county's offer-to-purchase letters and related responses, are created as part of the administrative process necessary to determine whether condemnation will be necessary to acquire land for a proper public purpose. The requirement in §25-46.5 that a potential condemnor make a bona fide offer to purchase is mandatory and jurisdictional prior to the initiation of judicial condemnation proceedings. See Charles v. Big Sandy R. Co., 142 Va. 512, 129 S.E. 384 (1925). Although such records are not, therefore, compiled exclusively for use in litigation, the records are, in my opinion, compiled specifically for use in litigation should the offer to purchase be refused. I note also that the records requested are compiled as part of the administrative procedure necessary to determine whether condemnation must be initiated. It is my opinion, therefore, that §2.1-342(b)(5) excepts the requested records from the mandatory disclosure requirement of §2.1-342(a).