November 12, 2002

Mr. William B. Royster, Junior
Member, Halifax County Industrial Development Authority
Halifax, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mail of October 23, 2002.

Dear Mr. Royster:

You have asked whether the Halifax County Industrial Development Authority ("the IDA") is a public body under the Virginia Freedom of Information Act (FOIA), and therefore subject to its open meeting requirements. You have also asked about the role of the Virginia Freedom of Information Advisory Council ("the Council"), and the weight of the Council's written opinions.

Section 2.2-3701 of the Code of Virginia includes in the definition of a public body any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth. Section 15.2-4903 allows a locality to create an industrial development authority, which by statute is a political subdivision of the Commonwealth. The definition of a public body includes both authorities and political subdivisions, which encompasses the IDA. Absent specific statutory language declaring that the IDA is not subject to FOIA, it must follow the open records and meetings requirements. Upon review of both FOIA and the Industrial Development and Revenue Bond Act, Chapter 49 of Title 15.2 of the Code of Virginia, nothing indicates that the General Assembly did not intend the IDA to be subject to FOIA.

Your question specifically asks about the open meeting requirements of FOIA. Subsection A of § 2.2-3707 declares that [a]ll meetings of public bodies shall be open, except as provided in § 2.2-3711. In addition to opening meetings to the public, FOIA also requires that notice be given and minutes taken. Subsection B of § 2.2-3707 requires that a public body give notice of regular meetings, including the time, date, and location, at least three working days in advance. This notice must be posted in a prominent public location at which notices are regularly posted, and in the office of the clerk of the public body. If the public body does not have a clerk, notice must be posted in the office of the chief administrator. Subsection E of § 2.2-3707 also requires a public body to give notice directly to anyone who files a written request for notification with the public body. Subsection I of § 2.2-3707 requires minutes to be recorded at all open meetings. Minutes, including draft minutes, are public records and subject to the open records provisions of FOIA.

A public body may only enter into closed session pursuant to the exemptions set forth at § 2.2-3711. If a public body chooses to exercise an exemption and hold a closed meeting, § 2.2-3712 sets forth the procedures a public body must follow. Subsection A of § 2.2-3712 requires a public body to first convene in open session, and make a motion to enter into closed session that identifies the subject matter, states the purpose of the meeting, and makes specific reference to the applicable exemption from the open meeting requirements.¹ Subsection C of § 2.2-3712 requires that discussion in the closed meeting be limited to those matters identified in the motion. Finally, subsection D of § 2.2-3712 requires a public body to reconvene in open meeting at the conclusion of the closed meeting, and to certify in a recorded vote that the discussion in the closed meeting was limited to matters exempted from open meeting by § 2.2-3711 and identified in the motion. If a member fails to certify the meeting, that member must indicate the substance of the departure be recorded in the minutes of the meeting.

In addition to your question about the status of the IDA as a public body, you asked a more general question about the role of the Council. The Council's statutory duties are set forth at § 30-179. The main role of the Council is to furnish, upon request, advisory opinions, conduct FOIA training seminars for the members and staff of public bodies or other interested persons, and produce educational materials. This office provides informal advisory opinions over the phone, and also provides more formal, written opinions, like this opinion, that are published on our website. Our written opinions are advisory, and do not carry with them enforcement authority. Only a court has the authority to enforce the provisions of FOIA.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹ For a more detailed discussion of the requirements of a motion for closed meeting, see Virginia Freedom of Information Advisory Opinion 8 (2002).