May 16, 2001

Mr. Anthony Kimery
Culpeper, 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 April 8, 2001.

Dear Mr. Kimery:

You have asked whether a local planning commission may properly meet in closed session pursuant to the Virginia Freedom of Information Act (FOIA) to discuss a dispute with a restaurant over construction plans. By way of background, you indicate that the restaurant presented a site plan to the planning commission in December 2000 to construct a restaurant in the town. In your email, you state that the site plan was approved, and that a requirement that the restaurant pay $99,000 in tap fees was clearly spelled out. Recently, however, a dispute arose as to whether the restaurant was indeed required to pay the tap fees. Communications between representatives of the restaurant and the town manager have been marked confidential, and distributed to town council members to discuss during closed meetings.

You have asked whether these ensuing meetings are properly exempted pursuant to FOIA. You specifically ask about the exemptions found at subdivision A. 5. of § 2.1-344 of the Code of Virginia, relating to discussion of prospective businesses, and subdivision A. 13. of § 2.1-344 relating to the discussion of a siting agreement.

FOIA provides that [a]ll meetings of public bodies shall be open, except as provided in § 2.1-344. Subsection A of § 2.1-344 sets forth 27 enumerated exemptions that allow a public body to hold a closed session, including the exemptions that you noted in your e-mail inquiry. If no exemption applies to a given situation, then any discussion of the matter by a public body must be conducted in an open meeting for which notice has been properly given in accordance with § 2.1-343.

Subdivision A. 5. of § 2.1-344 exempts [d]iscussion concerning a prospective business or industry where no previous announcement has been made of the business' or industry's interest in locating or expanding its facilities in the community. You indicate that plans to build the restaurant had been announced in the town. Therefore, this exemption would not apply to any ensuing discussion.

The second exemption that you question, subdivision A. 13. of § 2.1-344, exempts [d]iscussion of strategy with respect to the negotiation of a siting agreement or to consider the terms, conditions, and provisions of a siting agreement if the governing body in open meeting finds that an open meeting will have an adverse effect upon the negotiating position of the governing body or the establishment of the terms, conditions and provisions of the siting agreement, or both. All discussions with the applicant or its representatives may be conducted in a closed meeting. Upon analysis of the legislative history of this exemption, it becomes clear that this exemption applies to the siting of a hazardous waste facility, and thus does not apply to a disagreement over a site plan for a restaurant.

The exemption in question was originally enacted in 1984, and allowed a closed session to be held for [d]iscussion of matters exempted under § 10-186.9 B 1.[fn1] The statutory language of subdivision B. 1. of §10-186.9 was subsequently moved to the Virginia Waste Management Act at § 10-294, and found specifically within Article 5 of that Act titled "Siting of Hazardous Waste Facilities." This subdivision stated that [n]otwithstanding the provisions of the Virginia Freedom of Information Act, a governing body may: 1. Hold executive sessions to discuss strategy with respect to the negotiation of a siting agreement or to consider the terms, conditions and provisions of a siting agreement if the governing body in open meeting finds that an open meeting will have a detrimental effect upon the negotiating position of the governing body and/or the establishment of the terms, conditions and provisions of the siting agreement. All negotiations with the applicant or its representatives may be conducted in closed meeting or executive session.[fn2] The recodification of Title 10 to Title 10.1 in 1988 moved the language of the exemption from the Virginia Waste Management Act to the body of FOIA, to amend subdivision A. 13. of § 2.1-344. The language currently found in FOIA at subdivision A. 13. of § 2.1-344 is nearly identical to the FOIA exemption language previously found in the Virginia Waste Management Act. Thus it can be concluded that the exemption in FOIA was meant to allow a closed meeting when discussing the siting of a hazardous waste facility, and would not apply to a discussion of the restaurant's dispute over tapping fees.

In conclusion, neither of the two exemptions that you mention would appear to allow a public body to meet in closed session to discuss the terms of a previously-approved site plan for construction of a restaurant. Unless a situation is specifically exempted under § 2.1-344, all discussion of public business must be conducted at public meeting following the procedures set forth at § 2.1-343.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. § 2.1-344(A)(11) Va. Code Ann. (Michie Supp. 1984). The exemption, using the same statutory language, was moved to § 2.1-344(A)(13) in 1986.

2. Va. Code Ann. (1986 Supp.).