Closed - Legal Matters

Also, see 1999 FOIA changes

FOI Advisory Council Opinion AO-04-24

The exemption for a closed meeting relating to discussion of actual or probable litigation does not require that legal counsel be present at the discussion. Briefings pertaining to actual or probable litigation may be performed by staff members or consultants. Conversely, the exemption for a closed meeting pertaining to consultation with legal counsel employed or retained by a public body regarding specific legal matters does require that legal counsel be present accordingly. Public notice of a special, emergency, or continued meeting must be reasonable under the circumstances and shall be given contemporaneously with the notice being provided to the members of the public body conducting the meeting.

Cole v. Smyth County BOS (Supreme Court)

Supreme Court of VIrginia rules unanimously, May 28, 2020, that the Smyth County Board of Supervisors used an improper motion to go into closed session and talked about matters beyond the scope of the claimed exemption.

Bragg v. BOS (Rappahannock County)

A Rappahannock County circuit judge ruled the board of supervisors there improperly closed a meeting to talk about an advertisement seeking a replacement for an outgoing county attorney as well as alternatives to the county attorney set-up. The topic was not "legal advice," nor did it fall under the personnel exemption for "prospective candidates for employment."

FOI Advisory Council Opinion AO-02-10

A motion to convene a closed meeting must identify the subject of the meeting, the purpose of the meeting, and cite an applicable exemption from the open meeting requirements. In order to avoid confusion and misunderstanding, the preferred practice is to make a separate motion for each topic that will come under consideration during a closed meeting.

FOI Advisory Council Opinion AO-13-09

A motion to convene a closed meeting must identify the subject of the meeting, state its purpose, and provide a reference to an applicable exemption. Quoting or paraphrasing a statutory exemption states the purpose of the meeting, but does not identify the subject. FOIA places the duty to identify the subject of a closed meeting upon the public body holding the meeting, not its attorney.

FOI Advisory Council Opinion AO-01-07

The closed meeting exemption for consultation with counsel regarding specific legal matters may not be used for the purpose of discussing a general policy in the absence of any specific legal transaction or dispute.

Attorney General's Opinion 1992 #001

Negotiations regarding the substantive terms of a contract to buy water from a neighboring locality is a 'legal matter' that can be discussed in a closed meeting because public disclosure could compromise negotiating positions/strategy. Not all public business that may end up in contract form is considered a 'legal matter'.

Attorney General's Opinion 1986-87 #031

Annexation is not a 'legal matter' within a school board's jurisdiction, so a closed meeting to discuss annexation is not permissible.

Attorney General's Opinion 1985-86 #103

General legal matters are not a proper subject for closed meeting. Legal matters must be specific. Board of zoning appeals is subject to FOIAÄ…s meeting requirements.

Attorney General's Opinion 1984-85 #426

Where city attorney calls in council members to prepare them as witnesses in a scheduled trial, there has been no meeting. No public policy is deliberated, the individuals were not gathered as an entity, and no action by the entity was anticipated.

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