VIRGINIA FREEDOM OF INFORMATION ACT. REPORTS COMPILED EXCLUSIVELY FOR
EXECUTIVE SESSION LOSE THEIR EXEMPT STATUS IF ESSENCE OF SUBTANCE AND
CONTENTS WERE SUBJECTS OF DISCUSSION IN OPEN MEETINGS.
October 21, 1982
The Honorable Douglas K. Baumgardner,
Commonwealth's Attorney for the County of Rappahannock
This is in reply to your recent letter in which you request my
opinion regarding the application of the Virginia Freedom of
Information Act, 2.1-340 through 2.1-346.1 of the Code of Virginia
(the "Act") to certain architectural reports.1
Your letter, with enclosures, indicated that the reports in question
were discussed in open session although they had been prepared to be
used in executive session
Your inquiry presents the following questions;
1. Is the Superintendent of schools for a local school
division Considered the "chief executive officer" of a political
subdivision of the Commonwealth under the Act?
2. Are draft architectural reports and analyses regarding a
proposed new administrative facility Considered working papers
and/or records recorded in or compiled exclusively for executive
or closed meetings lawfully held pursuant to 2.1-344 and therefore
excluded from the mandatory disclosure requirements of the
Section 2.1-342(b)(4) provides;
"(b) The following records are excluded from the
provisions of this chapter; *** (4) Memoranda, working papers and
correspondance held or requested by...[the] chief
executive of political subdivision of the Commonwealth.....
This Office has consistently held that for purposes of the Act
school boards are political subdivisions and the Superintendents are
their chief executive officers.2
Therefore, if the reports were held by the Superintendent of schools,
they would be exempt from mandatory disclosure under the Act. This
exemption, however, does not apply to similar records held by the
school board3 and once the
superintendent disseminates records held by him to the school board
those records lose the exemption accorded by 2.1-342(b)(4).
Section 2.1-342(b)(11) excludes from mandatory disclosure, among
"Memoranda, legal opinions, working papers and records
recorded in or compiled exclusively for executive or closed
meetings lawfully held pursuant to 2.1-344."
You state that the records in question are draft architectural
reports and analyses. If the documents were prepared exclusively for
an executive meeting which was lawfully held pursuant to 2.1-344,
then they would be exempt unless subsequent actions were taken which
caused the documents to lose their exemption.4
Although the documents in question may have been prepared
exclusively for executive session, you indicate that the public body
discussed the reports in open session in addition to the discussion
in executive session. If the essence of the report was disclosed by
the public body in open session, I am of the opinion that the reports
lost the privileged protection provided in the exemption of
2.1-342(b)(11). To hold otherwise would allow report prepared for a
public body to be exempt from mandatory disclosure even if it were
disclosed in open session as long as it was purportedly prepared for
executive session. Such a result would be contrary to the purpose of
The mere fact that reference is made in public session to a report
lawfully received in executive session will not, however, cause the
report to lose its exemption. It necessarily becomes a factual
determination whether the board's public discussion has so revealed
the essence of the report's content that the report has, by reason of
the public discussion, become a part of the public domain.5
In summary, I am of the opinion that the superintendent of schools
is considered to be the chief executive officer of a political
subdivision of the Commonwealth for the purposes of the Act
Additionally, I conclude that the draft architectural reports and
analyses would not be exempt from the mandatory disclosure
requirements of the Act under 2.1-342(b)(11) if the essence of their
substance and contents were the subject of discussion in open
meeting, even though they may have been initially prepared
exclusively for use in executive session.
1 Based upon the definition of "official records"
contained in 2.1-341(b) it is apparent that the reports are official
records for purposes of the Act.
2 See 1980-1981 Report of the Attorney General at
395 and 1976-1977 Report of the Attorney General at 315 and 317.
3 See 1976-1977 Report of the Attorney General at
315 and 317.
4 Section 2.1-344 permits a public body to meet
lawfully in executive session to discuss the condition, acquisition
or use of real property for public purposes and to receive briefings
by staff members on legal matters within the jurisdiction of the
body. See 2.1-344 (a) (2) and 2.1-344 (a) (6). Of course, the public
body may not take final action in such a meeting. See 2.1-344(b).
5 In reaching this conclusion, I believe it is
necessary to focus on the action of the public body, as such, in
revealing the content of an otherwise exempt report, and not on the
unilateral statements of a board member who, whether in public
session or not, comments on such a report.