Supreme Court of Virginia Opens Doors to County Supervisors’ Meetings
 
October 24, 2006
 
Robert Thomas "Bob" Hicks- Northern Virginia

The Supreme Court of Virginia reversed a trial judge, ruling in favor of three Virginia newspapers’ claims that county officials’ closed-door session violated the state’s Freedom of Information Act.

The controversy that led to the case White Dog Publishing, Inc. v. Culpeper County Board of Supervisors began in 2004, when county officials debated about a new public high school. The debate about whether to construct a new high school received considerable attention in the local community. During one meeting, the Culpeper Board of Supervisors elected to go into closed session concerning the county’s contract with an architect, stating as grounds for the closure the need to discuss with the county attorney proposed contract amendments.

Afterward, a reporter from The Culpeper Citizen learned that the architect had himself appeared before the Board during the closed session. The newspaper filed a mandamus action in the state general district court against the Board, alleging that the three-and-one-half-hour closed session not only consisted of direct discussions with the architect, but also included issues unrelated to contract negotiations. The Culpeper Citizen asked the court to make available for public inspection all minutes, notes and other information reflecting the discussions, and to further direct the Board to cease its reliance on the “contract negotiation” exemption. After an evidentiary hearing, the trial court ruled in favor of the Board and held that officials had not violated the Virginia Freedom of Information Act.

The Culpeper Citizen, joined by The Culpeper Star-Exponent and The Free Lance-Star, filed an appeal to the state circuit court. The circuit court held a new evidentiary hearing during which a witness admitted that the Board did in fact hear directly from the architect during the closed session. The witness testified that the Board wanted “unfettered advice” and believed that the architect would be “more guarded and less forthcoming” in presenting his views and opinions in public. The Board believed this discussion all related to the overall contract negotiations and therefore fell under the state law. At the conclusion of the hearing, the circuit court ruled that the Board was entitled to go into closed session to discuss the scope of the contract and contract strategy under the “contract negotiation” Freedom of Information Act’s exemption.

The three newspapers appealed to the Supreme Court of Virginia. That court reversed the lower courts and reiterated its position that Virginia’s Freedom of Information Act was to be “liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operation of government.” Specifically, the court held that the “contract negotiation” exemption to the FOIA statute must be narrowly and strictly applied. The court further reasoned that the Board’s view of the exemption would allow any discussion about the scope or terms of an awarded contract to occur during a closed session. The court held that the “contract negotiation” exemption is much narrower and applies only when contract terms are actually being negotiated. Put differently, the purpose of the Board’s closed session was not for forming or modifying a procurement contract. Instead, the Board was actually seeking input and advice from the architect who was going to perform the contract. Thus, the case was remanded.

This case was being watched by many Virginia media outlets to help determine how Virginia’s highest court would interpret the scope and authority of Virginia’s Freedom of Information Act in minimizing closed government hearings of substantial public interest issues.

 

For more information, e-mail Robert T. Hicks at robert.hicks@hklaw.com or call toll free, 1-888-688-8500.