FOI Advisory Council Opinion AO-19-00


December 15, 2000

Mr. Kenneth Cranford
South Boston, VA

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 November 14, 2000.

Dear Mr. Cranford:

You have asked a series of questions stemming from a meeting of a county school board. You indicate that the school board called a closed session to discuss personnel and property. However, you learned that a parental request for a religious exemption from attending public school was also on the agenda for the closed session. Later, you were told that a court reporter brought by the lawyer of the parents seeking the exemption was not allowed into the closed session. Ultimately, the matter of the religious exemption was not discussed because the public body's attorney was not present.

1. Your first question asks whether announcements for closed meetings must include all reasons for going into the session. The Virginia Freedom of Information Act (FOIA) requires that all meetings of public bodies be open, except for specific enumerated exemptions found at § 2.1-344 of the Code of Virginia. When one of those exemptions is to be invoked, § 2.1-344.1 sets forth procedures that must be followed in order to enter into a closed meeting. The public body must vote in open session to approve a motion identifying the subject matter, purpose, and specific statutory provision providing the exemption in order to go into closed session. Once in closed session, the public body is limited to discuss only the matters specifically identified in the motion. Finally, once the public body reconvenes in open session, the body must certify by vote that the discussion was indeed limited to the topics noticed in the motion.

2. Your second question asks if it is appropriate in an executive session for a school board to consider parental requests for religious exemptions. In order to be an appropriate topic for discussion in closed session, it would need to fall under one of the specific exemptions enumerated in § 2.1-344. There is an exemption for discussion of certain academic matters at subdivision A. 2. of §2.1-344, but this exemption is limited to discussion of admission or disciplinary matters concerning a student. Because the policy of FOIA dictates that all exemptions must be narrowly construed, this exemption would not be appropriate for a discussion of a parental request for a religious exemption from attending school. Subdivision A. 4. of § 2.1-344, however, appears to apply to the fact situation that you have outlined. This provision allows a public body to hold a closed session for the protection of the privacy of individuals in personal matters not related to public business. The discussion of the religious beliefs of a particular family within the school system is a personal matter, and does not seem to fall under the public business conducted by the school board. Thus, this discussion seems to be an appropriate topic for a closed meeting, so long as this exemption is specifically cited, and the other requirements of § 2.1-344.1, discussed above, are followed.

3. Your third question asks if the parents seeking the exemption have a right to record the executive proceeding to protect their interests. In open session, § 2.1-343 requires that minutes be taken and allows any person to record the open meeting. However, there are no such parallel provisions for closed sessions. In fact, subsection H of § 2.1-344.1 specifically states that minutes need not be taken at closed meetings. Because there is no affirmative duty of the public body to record the meeting, this question focuses on whether the parents requesting the discussion can bring in a court reporter to record the meeting. Subsection F of § 2.1-344.1 gives a public body the discretion to allow nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic which is a subject of the meeting. Thus, the decision as to whether to allow a court reporter into a closed session is left to the discretion of the public body.

4. Your fourth question asks if a request by the parents to hold the discussion in an open session obviates the application of the FOIA exemption. Again, like the response to the last question, whether to hold a closed meeting rests with the discretion of the public body. FOIA does not mandate that any meetings be closed. Instead, subsection A of § 2.1-344 reads that a public body may hold closed meetings for one of the enumerated purposes set forth in that provision. (Emphasis added). Thus, even if an exemption could be properly invoked, it would be left to the discretion of the public body whether to actually go into closed session. Likewise, when an exemption does properly apply, it is also up to the discretion of the public body to exercise its right to convene in closed session.

5. Your final question asks about the remedies available to the news media for being excluded from the meeting in question. Section 2.1-346 sets forth the procedures for enforcement of FOIA whenever the rights conferred by the chapter have been denied. Enforcement may be sought via a petition for either mandamus or injunction. These enforcement mechanisms are available to any aggrieved party, whether a member of the media or a member of the public. In focusing on the meeting in question, it appears that the topic would be the proper subject of an executive session. Any possible violation of FOIA appears to rest in failure to follow the proper procedures to convene in closed session, and not with the exclusion of the public, media, or any other party to the action.

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


Maria J.K. Everett
Executive Director