Commentary: Closed Sessions – The Standard We Should Meet

In my previous post, I explained the first component of the Legal Services Transparency and Review Policy: written legal analysis for legislative matters. This post addresses the second component: closed session procedures.

The Presumption of Openness

Virginia’s Freedom of Information Act begins with a clear statement of principle. Va. Code § 2.2-3700(B) states:

“The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed.”

This is the baseline. Meetings are presumed open. Exemptions are the exception, not the rule – and they must be narrowly construed.

What FOIA Requires for Closed Sessions

When a public body seeks to enter closed session, FOIA imposes specific requirements. Va. Code § 2.2-3712(A) requires that the motion to convene a closed meeting:

• identify the subject matter,
• state the purpose of the meeting,
• make specific reference to the applicable exemption from open meeting requirements.

The statute goes further. It explicitly states:

“A general reference to … the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.”

The motion must identify the actual subject matter with specificity, not broadly or generally.

What “Specific Legal Matters” Actually Means

One of the most commonly invoked exemptions is Va. Code § 2.2-3711(A)(8), which permits closed sessions for:

“Consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel.”

But what does “specific legal matters” mean? (A)(8) doesn’t define it. However, the Virginia FOIA Advisory Council issues advisory opinions to clarify what the law requires and guide future practices. Searching for relevant Council opinions on closed sessions turned up Advisory Opinion 01-07, in which the Council cited an Attorney General opinion:

“… the ‘legal matters’ exception applies only to discussions of specific legal transactions or disputes and may not be used to justify closed meetings involving more general issues, even though those issues eventually may have legal consequences.”

The same opinion cited an earlier Attorney General opinion:

“… the legal matters exemption requires more than a desire to discuss general legal matters and may not, therefore, be used as a catch-all exception to the FOI Act’s open meeting requirement and does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue.”

So the base statute tells us what’s not sufficient: a general reference to the subject matter. The FOIA Council opinion tells us what is required: specific legal transactions or disputes. It also tells us what doesn’t qualify: “more general issues” and “general policy matters,” even if they may eventually have legal consequences. Together, these sources provide a complete picture of the standard: specific transactions or disputes – not general policy discussions, not matters that might someday have legal implications, not topics where legal considerations happen to be relevant.

What the New Policy Establishes

The Legal Services Transparency and Review Policy aligns Warren County’s practices with details made clear by the FOIA Advisory Council. Rather than relying solely on the statutory language – which uses the phrase “specific legal matters” without further definition – the policy incorporates the FOIA Council’s clarifying language directly. This strengthens our closed session requirements by grounding them in authoritative guidance.

The policy requires:

• Any request for a closed session be submitted to the Board at least 48 hours in advance, except in genuine emergencies
• The request be in writing and include the specific FOIA exemption being invoked
• For claims under the “specific legal matters” exemption: identification of the specific legal transaction or dispute requiring confidential legal advice – language drawn directly from FOIA Council Advisory Opinion 01-07

The policy also affirms the presumption of openness:

“Closed sessions are the exception to Virginia’s open meeting requirements. The presence of legal counsel or the discussion of legal considerations does not itself justify closure. Statutory interpretation, policy analysis, and general legal risk assessment relating to proposed ordinances or regulations shall be conducted in open session unless the specific criteria for closure under FOIA are demonstrably met.”

This isn’t a new legal standard; it’s a definition that the FOIA Advisory Council has already established through issuance of its opinion 01-07. The policy simply commits the Board to following it consistently – and gives that commitment teeth by requiring advance notice and written justification.

Plain English

I’ve been reminded more than once that I’m not a lawyer. That’s true. I’ve even been told I’m not the County Attorney, and I shouldn’t give legal advice. I agree on both counts.

But reading a statute isn’t practicing law. Citing a FOIA Council opinion isn’t practicing law. Forming my own view of what a Virginia statute means – so I can fulfill my duties as an elected official – isn’t practicing law. It’s informed citizenship. It’s responsible citizen-governance. And frankly, it’s my job.

Yes, I persuaded two of my colleagues to adopt this policy. That’s also my job. Elected officials advocate for policies they believe serve the public interest. We make arguments. We cite evidence. We try to bring others to our point of view. That’s not inappropriate – it’s representative democracy in action.

The FOIA Advisory Council exists precisely to provide guidance that citizens and public officials alike can understand and apply. Virginia Code § 2.2-3711(A)(8) is written in English, not Latin. So are the FOIA Advisory Council’s advisory opinions. You don’t need a law degree to understand that “specific legal matters” means and propose policy for closed session motions that implements it.

If only lawyers could read and interpret this guidance, what would be the point of publishing it?

The Standard We Should Aspire To

This policy didn’t emerge from nowhere. It emerged from concrete experience – two instances in which public deliberation on a proposed ordinance or text amendment to an ordinance was stymied because legal analysis was withheld from the public process. One public hearing was interrupted and tabled. One ordinance never reached a hearing at all.

The policy is designed to prevent that from happening. Not by restricting the County Attorney’s ability to advise the Board – nothing in the policy does that. But by ensuring that when closed sessions are requested, they contain specific transactions, specific disputes, narrow exemptions narrowly applied.

The statute sets a floor. FOIA Council guidance offers a path to enhanced transparency. We can and should choose to meet that higher standard – not because we must, but because we have the opportunity to enhance our commitment to governing with transparency. That’s something Warren County can surely benefit from.

Next: Quarterly Financial Reporting

The next post will explain the third component of the policy: quarterly reporting on legal services expenditures, and why basic fiscal oversight matters.