FOI Advisory Council Opinion AO-45-01

October 2, 2001

Ms. Lucy E. Phillips Bright
County Attorney, County of Washington
Abingdon, Virginia

Mr. Patrick Mannix
Bristol, 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 Ms. Bright's correspondence dated August 14, 2001, and Mr. Mannix's fax received August 27, 2001.

Dear Ms. Bright and Mr. Mannix:

You both have asked a question concerning a motion made by a member of the Washington County Board of Supervisors ("the Board") to enter into closed session under the Virginia Freedom of Information Act (FOIA). The question has been raised as to the sufficiency of the motion under the procedural requirements of FOIA, as well as to whether the subject of the discussion was a proper topic for a closed meeting. The motion in question read:

"Motion to enter closed meeting as allowed by Virginia Code section 2.1-344(A)(5) for briefing of members of the Board on a potential request to the County for financial assistance necessary to obtain state financial assistance to contribute to funding of possible expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in expanding its facilities in the community."1

Subsection A of § 2.2-3707 of the Code of Virginia requires that [a]ll meetings of public bodies shall be open, except as provided in § 2.2-3711. Subsection A of § 2.2-3712 requires that in order to close a meeting, the public body must make a motion in open session that (i) identifies the subject matter, (ii) states that purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements. The Freedom of Information Advisory Council has previously opined that a motion that lacks any of these three elements would be insufficient under the law.2 Thus, in addition to a statutory citation and tracking the general language of the exemption, the motion must also contain a statement of purpose. This statement of purpose 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 why the closed session will be held. For example, a public body might state that the subject of a closed session would be a discussion of disciplinary action against a employee, which goes a step beyond just stating that the purpose of the meeting is to consider a personnel matter.

In the instant case, the Board entered closed session pursuant to subdivision A. 5. of § 2.2-3711. The motion also provides the purpose of the meeting, by tracking the language set forth in the exemption that a closed session may be held to discuss the expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in ... expanding its facilities in the community. In addition, the motion gives a more specific statement of the subject of the meeting as it relates to the discussion of the expansion of an existing business or industry. The motion states that the closed meeting would be convened specifically so as to brief the "members of the Board on a potential request to the County for financial assistance to contribute to funding of possible expansion of an existing business or industry." The motion contains all three elements required to enter into closed session, and thus satisfies the requirements set forth at subsection A of § 2.2-3712.

Because the motion itself satisfies the procedural requirements of FOIA, the inquiry now turns as to whether the discussion was actually the proper subject of a closed meeting under that particular exemption. A question has been raised as to whether a potential request for financial assistance relating to the expansion of an existing business or industry may properly be exempt from the open meeting requirements. The exemption covers discussions concerning ... the expansion of an existing business or industry. The exemption does not specify that such a discussion may only be held in closed session after the plans to expand are definite or finalized. The purpose and policy behind the exemption seems to be best interpreted as to aid the economic development process and protect the negotiation that accompanies a decision by a business to expand within a locality. The incentives offered by a locality to local businesses often change with the circumstances, and thus there is often the possibility that discussions may touch on a variety of potential options for both the locality and the business, such as monetary grants, tax credits, or land. Thus, the subject of discussion in the instant case falls within the scope of the discussions intended to be protected by the exemption. The public body is discussing a potential economic incentive that might be offered to a business or industry considering expanding in the locality.

In conclusion, the discussion by the Board may be properly closed pursuant to the exemption found at subdivision A. 5. of § 2.2-3711. Furthermore, the motion offered by the public body to enter into closed session satisfies the three procedural requirements of FOIA, in that it states the specific statutory exemption, the subject, and the purpose of the closed session.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. Motion to enter into closed session was made before Title 2.1 of the Code of Virginia was recodified to Title 2.2, effective October 1, 2001. The current citation for the exemption cited in the motion is 2.2-3711(A)(5). This opinion will refer to Title 2.2 citations, which is the version of the law in effect at the time when this opinion is being issued.

2. Virginia Freedom of Information Advisory Opinion 14 (2001), Virginia Freedom of Information Advisory Opinion 38 (2001).