September 25, 1972
THE HONORABLE DONALD G. PENDLETON
Member, House of Delegates
This will acknowledge receipt of your recent inquiry relative to
the application of the Freedom of Information Act to a situation in
which the Campbell County School Board recently held a closed
"informal session" for the purpose of discussing personnel matters.
According to the information supplied in your letter the pertinent
facts may be summarized as follows:
(a) No notice of the meeting was announced to the public
in general and, in particular, to the news media; (b) No vote was
taken to go into executive session; (c) No minutes were taken
during the "informal meting" nor were votes recorded; (d) The
"informal session" apparently involved personnel problems with
high-level school board employees; (e) No proof exists of any
formal action taken by the county school board during the
executive session, although two top-level employees, according to
your information, have left the employ of the school board since
the secret session.
Your letter poses four questions for resolution:
1. Was the meeting held on August 31, 1972, legal or
illegal according to the Code of Virginia, Chapter 21 (Virginia
Freedom of Information Act)?
2. If, in fact, the meeting was illegally held behind closed
doors can the actions of the meeting be held secret?
3. If, in fact, any action was taken in the session, is this
4. Are the public bodies covered under the Freedom of
Information Act required to make public any or all planned
meetings? Or, what is required of the news media to insure that
they are legally notified of all such meetings?
Your questions require an examination of the Freedom of
Information Act which was first enacted by the General Assembly in
1968 to require, among other things, that all meetings of State and
local agencies, boards and commissions be open to the public. The
Act, unequivocally requires that:
"Except as otherwise specifically provided by law and
except as provided in §§2.1-344 and 2.1-345, all
meetings shall be public meetings." Section 2.1-343 of the Code of
Virginia (1950), as amended. (Emphasis supplied.)
Application of the label "informal session" as a means of
circumventing the requirements of the Act is not permissible, for the
1970 General Assembly amended the Freedom of Information Act to erase
any distinction between formal and informal meetings. Section 2.1-341
now defines meetings in unmistakable terms: meeting or meetings
"means the meetings, when sitting as a body or entity, or as an
informal assemblage of the constituent membership, with or without
minutes being taken, whether or not votes are cast . . .." (Emphasis
supplied.) The Freedom of Information Act applies to all State and
local agencies, institutions, departments, authorities, and other
organizations supported wholly or principally by State funds unless
otherwise exempted by law.
Section 2.1-345 exempts from the Freedom of Information Act
committees of the General Assembly, legislative and gubernatorial
study commissions and committees; also excluded are certain other
boards and committees, including "study commissions or committees
appointed by the governing bodies of counties, cities and towns,
provided that no committee or commission appointed by such governing
bodies, the membership of which consists wholly of members of such
governing body, shall be deemed to be study commissions or committees
under the provisions of this section."
The Freedom of Information Act specifically forbids the convening
of executive or closed meetings except for the purposes set forth in
(1) "Discussion or consideration of employment,
assignment, appointment, promotion, demotion, salaries,
disciplining or resignation of public officers, appointees or
employees of any public body.
(2) Discussion or consideration of the condition, acquisition
or use of real property for public purpose, or of the disposition
of publicly held property.
(3) The protection of the privacy of individuals in personal
matters not related to public business.
(4) 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.
(5) The investing of public funds where competition or
bargaining are involved, where if made public initially the
financial interest of the governmental unit would be adversely
(6) Consultation with legal counsel and briefings by staff
members, consultants or attorneys, pertaining to pending
litigation, or legal matters within the jurisdiction of the public
body, including legal documents.
(7) Discussion of any matter which will be the topic of a
public hearing prior to a final decision, provided that notice of
every such public hearing shall be published generally in the
community not less than ten days prior to such public
It should be emphasized at this point that a unit of government
covered by the Act cannot go into executive session to discuss any
matter not covered by §2.1-344; nor can it go into an executive
session to discuss one item permitted by law and then to proceed to a
discussion of other matters not authorized by the Act.
There are procedural requirements that must be strictly observed
once it has been determined that a particular item of business, which
falls within §2.1-344, should be discussed in executive session.
Section 2.1-344(b) requires that "no meeting shall become an
executive or closed meeting unless there shall have been recorded an
affirmative vote to that effect by the public body holding such
meeting." Further, §2.1-344(c) states that "no resolution,
ordinance, rule, contract, regulation or motion adopted, passed or
agreed to in an executive or closed meeting shall become effective
unless such public body, following such meeting, reconvenes in open
meeting and takes a vote of the membership on such resolution,
ordinance, rule, contract, regulation or motion." Failure to comply
with the above-mentioned procedural requirements would nullify the
action taken by the public body in question.
In reviewing the above mentioned sections, it is clear, therefore,
that, in enacting the Freedom of Information Act, the General
Assembly intended to forbid certain practices of public exclusion by
public bodies from the decision-making process and to place upon
those units of government the responsibility of conducting the
public's business in public. Any person denied the rights and
privileges conferred by the Freedom of Information Act may proceed to
enforce such rights in an appropriate court, and the General Assembly
has provided in §2.1-346 of the Code that such actions ". . .
shall be given precedence on the docket of such court over all cases
which are not otherwise given precedence by law."
Accordingly, in response to your questions, I am of the opinion
(1) the meeting held on August 31, 1972, by the Campbell
County School Board was in contravention of the Freedom of
(2) if any votes were recorded or minutes taken, they must be
(3) any action taken during the closed session would not be
In regard to your final question, §2.1-343 requires that
"information as to the time and place of each meeting shall be
furnished to any citizen of this State who requests such