Attorney General's Opinion 1974-75 #573

March 17, 1975

THE HONORABLE WILLIAM H. HARRIS
County Attorney for Stafford County

74-75 573

This is in reply to your recent letter wherein you inquire as follows:

"1. Does Virginia's Freedom of Information Law apply to Stafford County Industrial Authority or to all industrial authorities?

"2. If it does apply, please advise to what extent the industrial authority may have closed meetings or executive meetings with respect to industrial clients and prospects? . . .

"3. Is the industrial authority required to make public, information concerning negotiations with industrial clients and prospects prior to the release of the names of the industrial client or prospect? . . .

"4. Is the industrial authority required to release publicly, information concerning negotiations with prospective industrial clients after the names of the proposed industrial clients or prospects have been publicly announced? . . .

"5. What information must the industrial authority release publicly after the negotiations are completed?

"6. Who is entitled to receive the above information with or without request in each of the situations presented? . . ."

I shall respond to your inquiries seriatim: The Virginia Freedom of Information Act does, in my opinion, apply to industrial authorities. Section 2.1-341(a), Code of Virginia (1950), as amended, sets forth the various types of public bodies to which the Act applies and specifically includes "any authority . . . of any political subdivision of the State. . . ." Accordingly, my response to your first inquiry must be in the affirmative.

Your second inquiry may be answered by reference to §2.1-344 which sets forth the specific purposes for which public bodies may hold executive or closed meetings. Section 2.1-344(a)(4) authorizes executive or closed meetings for the specific purpose of:

"Discussion concerning a prospective business or industry where no previous announcement has been made of the business' or industry's interest in locating in the community."

Section 2.1-344(c) provides, however, that no vote or final action taken in executive session shall become effective legally unless, following such meeting, the public body reconvenes in open session and votes affirmatively on the action taken in closed session. Thus, any action taken by an industrial authority in executive session with respect to a prospective industrial client must be voted upon in open session in order to have legal validity. I am, consequently, of the opinion that an industrial authority may hold an executive or closed meeting for the purpose of discussing any matter relative to a prospective business client, provided, however, that there has been no previous announcement concerning that business' interest in locating in the community, and provided, further, that there is compliance with the procedural requirements of §2.1-344(c) outlined above as to any action.

Your third and fourth inquiries deal with the release of information, by industrial authorities, concerning negotiations with prospective industrial clients, prior to and after public announcement of the prospective client's interest in locating in the community. The Freedom of Information Act imposes two basic requirements upon public bodies. First, it requires, in §2.1-343, that all meetings of public bodies be open to the public, except as otherwise provided. Second, the Act requires, in §2.1-342(a), that all official records of public bodies shall be available for inspection and copying by citizens of this State. Neither of these two basic provisions, or any other provision of the Act, requires that public bodies release or provide "information" to the public You will note, however, that I distinguish the provision of information from the availability of official records. Accordingly, I would advise that there is no requirement in the Freedom of Information Act that an industrial authority release or provide "information" either before or after public announcement of negotiations with a prospective business client. In view of my negative response to your third and fourth inquiries, your fifth and sixth inquiries are rendered moot.