FOI Advisory Council Opinion AO-04-08: <- Click Here for the opinion in it's entirety
AO-04-08April 18, 2008 Laurence Hammock, The Roanoke Times, Roanoke, 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 your electronic mail of March 10, 2008 and March 26, 2008. Dear Mr. Hammock: You have asked whether a closed meeting convened by the Roanoke City Council (the Council) was held in violation of the Virginia Freedom of Information Act (
FOIA).
The quoted agenda item describes the purpose of the closed meeting and cites the applicable exemption,
but does not identify the subject matter of the meeting. FOIA sets forth no requirements for the contents of agendas or of particular agenda items, so the fact that this agenda item fails to identify the subject is not a FOIA violation. However, it is a common practice to use the same language in an agenda as is used in the actual motion to convene a closed meeting. If the motion to convene the closed meeting was identical to the quoted agenda item, then that motion would fail to satisfy the requirement of subsection A of § 2.2-3712 to identify the subject matter of the closed meeting.
A motion to convene a closed meeting must contain all three elements (subject, purpose, and citation) in order to comply with FOIA; a motion that lacks any of these elements is insufficient under the law. 5 This office has previously advised that it is best to include in the minutes all motions to convene closed meetings and the certifications thereof by quoting such motions and certifications verbatim. This practice leaves no doubt as to whether the motions were made or what were the contents of such motions and certifications. 6 While no violation is apparent here, I set forth these reminders to help guide future practices. Second, as an additional matter, note that subsection D of § 2.2-3712, concerning the certification of closed meetings, also sets forth the procedure a member of a public body should follow if he or she feels a closed meeting has been held improperly:
At the conclusion of any closed meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and
(ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public body. While minutes of this meeting were not provided and do not appear to be available on the Council's website at this time, 7 the agenda report that is available online 8 states that Council Members
Dowe and
Wishneff left during the closed session. Nothing is stated as to why these members left the closed meeting. Based on the facts you provided, it does not appear that any member made a statement concerning a departure from the closed meeting requirements as provided for in subsection D of § 2.2-3712.
You indicated that Mr. Wishneff left in protest due to his belief that the closed meeting was being held in violation of the law. However, nothing in the available records of this meeting makes clear that his departure was a protest - the records simply state that he left. I would point out that in such a situation,
members may be better advised to follow the procedure set out in FOIA.
