FOI Advisory Council Opinion AO-03-17
March 17, 2017
Terrill "Terry" Ramsey
Charlotte Court House, 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 electronic mail of January 16, 2017.
Dear Mr. Ramsey:
You have asked two questions about the sufficiency of certain motions to convene closed meetings of a board of supervisors under the Virginia Freedom of Information Act (FOIA). Your first question asks about a specific motion made by the Charlotte County Board of Supervisors (the Board) at its meeting on November 8, 2016 to convene a closed meeting to discuss personnel matters. Your second question asks about the sufficiency of several sample motions relating to closed meetings. Each question will be addressed separately below, with additional facts set out as appropriate.
The policy of FOIA stated in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth ... free entry to meetings of public bodies wherein the business of the people is being conducted." The policy continues by stating that "[u]nless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public .... meetings shall be presumed open, unless an exemption is properly invoked." The subsection further specifies that "[a]ny exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." The procedure for convening a closed meeting is set forth in subsection A of § 2.2-3712, which provides in full as follows:
No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711. The matters contained in such motion shall be set forth in detail in the minutes of the open meeting. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.
As previously opined by this office, a motion to convene a closed meeting must contain all three elements (subject, purpose, and citation) in order to comply with FOIA; a motion that lacks any of these elements is insufficient under the law. We have previously observed that there is often confusion in differentiating between the subject and the purpose of a closed meeting. Conceptually, it may be helpful to think of the subject as what the meeting is about, while the purpose is why the meeting is to be held. This office has previously opined that when identifying the subject of a closed meeting, the subject need not be so specific as to defeat the reason for going into closed session, but should at least provide the public with general information as to object of the discussion. Observing that the prefatory language of subsection A of § 2.2-3711 states that "[p]ublic bodies may hold closed meetings only for the following purposes," we also opined that quoting or paraphrasing from one of the exemptions in that subsection satisfies the requirement to state the purpose of the meeting, but it does not suffice to identify the subject matter. We concluded this analysis by noting that by quoting or paraphrasing from one of the statutory exemptions, and providing a proper citation to the exemption, only two of the three required elements of the motion to convene a closed meeting are satisfied. The public body must still identify the subject in order to make a proper motion to convene a closed meeting. Determining whether any particular motion meets the statutory requirements depends on the facts of each situation and requires a case-by-case analysis.1
Your first question asked whether a specific motion made by the Board was in compliance with the requirements of FOIA. You provided an audio recording of that motion as it was made, and transcribed it as follows: "Mr. Chairman, I move that the Board of Supervisors convene to close meeting to discuss personnel as permitted by the Virginia Code. I don't need to name all these numbers. That's the motion." Listening to the audio recording confirmed that your transcription of the actual motion appears to be accurate. The audio recording you provided demonstrates that the motion was then seconded and voted upon. You also provided a copy of the written minutes of that meeting which include the following entry regarding the motion: "Pursuant to Code Section 2.2-3711.A.1, Motion was made by Nancy R. Carwile, seconded by Warren E. Weston, and carried with all other members present and voting yes to enter into Closed Session to Discuss Personnel." Note that the actual motion made does not match the motion as set forth in the minutes, and neither is sufficient to satisfy all of the requirements of FOIA. Both the actual motion and the motion as recorded in the minutes identify the purpose of the closed meeting to discuss personnel matters, but neither identifies the subject to be discussed, and the actual motion as transcribed also failed to make the required "specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711."
Your second question asked about the sufficiency of several sample motions to convene and certify closed meetings which you stated were included with the Board's agenda packet for its meeting on November 8, 2016. As the requirements to convene a closed meeting are different from the requirements for a motion to certify a closed meeting, we begin by considering only the sample motions to convene a closed meeting. The list of such sample motions you provided begins with prefatory language for each stating that "I move that the Charlotte County Board of Supervisors convene in closed meeting to discuss the following." That prefatory language is followed by six different example motions covering (1) personnel matters under subdivision A 1 of § 2.2-3711; (2) the acquisition or disposition of real property under subdivision A 3 of § 2.2-3711; (3) personal matters not relating to public business under subdivision A 4 of § 2.2-3711; business or industry where no previous announcement has been made under subdivision A 5 of § 2.2-3711; (5) probable litigation under subdivision A 7 of § 2.2-3711; and (6) consultation with legal counsel about specific legal matters also under subdivision A 7 of § 2.2-3711. Each of these sample motions has a blank line ("___") next to it. The sample motion for personnel matters has six subsidiary motions for specific types of personnel matters, each of which also has its own blank line next to it. Notably, the last of these subsidiaries is for "Other specific personnel matter [STATE GENERAL NATURE OF MATTER WHEN MAKING MOTION]." [Emphasis and capitals in original.] Each sample motion paraphrases from the statutory language of the referenced exemption. You asked whether marking "X" in the blank line next to any of these sample motions would be sufficient to satisfy FOIA. You noted that none of them appear to identify a subject. As stated above, identifying the subject matter of a closed meeting is one of the requirements set forth in subsection A of § 2.2-3712. Without that identification, a motion to convene a closed meeting is insufficient. As written, it appears that you are correct that none of the sample motions you provided identifies a subject. Marking an "X" in the blank next to any of these samples would not be sufficient by itself to identify a subject, and therefore would not satisfy the requirements for a motion to convene a closed meeting. However, considering that all of the sample motions state a purpose and provide a cite to a corresponding exemption, if the maker of the motion were to add language identifying an appropriate subject, that would be sufficient to satisfy the requirements for a motion to convene a closed meeting.
Regarding the sample motion to certify a closed meeting, it closely tracks the language of subsection D of § 2.2-3712, which sets out the relevant requirements for certification:
At the conclusion of any closed meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body.
The sample motion essentially quotes clauses (i) and (ii) above while identifying the Board as the public body involved and providing spaces to identify the votes (Ayes and Nays) and the members present and absent. Note that FOIA does not require that each motion to certify a closed meeting identify the subject, purpose, and cite that were identified in the motion to convene the closed meeting. Therefore, the language of this sample motion comports with the requirements of subsection D quoted above and is sufficient to satisfy FOIA.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1. Freedom of Information Advisory Opinion 02 (2016)(internal cites omitted).