FOIA doesn’t require closed meetings

Published 10:02 am Friday, October 10, 2014

by Megan Rhyne

There’s a phrase that gets bandied about occasionally by public officials when asked by reporters for comment about a particular matter. It’s meant as a conversation stopper; a statement against which no reasonable person could or would argue, because it is meant to convey a certainty, as steadfast and unassailable as a the gaze of the Sphinx.

There are several versions of the phrase, but essentially it goes like this:

“I can’t comment on something we discussed in closed session.”

There’s nothing inherently wrong about this statement. But to be more precise, more accurate, what they really should be saying, “I am choosing not to comment.”

First of all, nothing under Virginia’s Freedom of Information Act compels officials to go into a closed session. FOIA requires meetings of three or more members of a public body (elected, appointed or a combination) to be held openly, where the public can “witness the operations of government,” as FOIA’s policy statement advises.

FOIA lists 45 instances where public bodies can talk about public business out of the public’s view, but none of these exemptions are mandatory. None of them.

The exemptions are discretionary. They allow public bodies to close the doors to the public meeting, but they do not require it. Each time a public body goes into a closed session, they are making a choice to do so.

The exemptions themselves are not spurious. There are good reasons why discussion of certain public business needs to be held close to the vest. Say, for instance, a county wants to buy a certain piece of property that’s for sale. The public has an interest in paying a reasonable price, not one that has been arbitrarily inflated. Allowing each side to keep their negotiating tactics and figures from leaking out helps assure that the public is getting a fair, arms-length deal.

On the other hand, there are also good reasons to hold discussions in the open, even when they could be closed. When possible harm to the public purse or public safety has passed, the need for going behind closed doors dissipates.

The Daily Press in Newport News surveyed the local governments in its area to see how often — and for how long — their public bodies went into closed session. Even allowing for the differences in situations (some issues may require more closed sessions than others), it was clear that some local governments opted to stay in open session even when they could have invoked an exemption. It was equally clear that some went into closed session any chance they could.

But if public bodies can go into closed session, then surely it follows that the body’s members cannot talk publicly about what was said during those sessions, right? It does not follow. Instead, this is primarily another choice.

There is no law, no commandment stating Thou Shalt Not Talk About Closed Meeting Communications. Public officials do not lose their First Amendment rights to free speech when they join a public body. Nor do they shed that basic civil liberty when they walk into the closed meeting room. They are free to talk afterwards. Some do. And that is often the only way the public learns about what’s really going on.

A public body may have an internal policy against speaking out of turn, so to speak. Members may sanction or censure each other, but that’s as far as it goes. Because of the constitutional implications, there is no state or federal law that prohibits post-meeting conversations.

True, someone who reveals what went on in a closed session may sacrifice his or her ability to get things done in the future if his colleagues on the board don’t trust him. But if he wants to talk, generally he can.

This is important for public officials to remember, because for those who know what the law does and does not say (and that includes everyone who has now read this column), simply saying, “I can’t talk about it,” is no longer good enough.

If there are reasons why confidentiality is critical, then explain that. If there are not critical reasons; then why not talk? It’s even possible to talk without revealing details. The public would much rather deal with generalities than they would being shut out and shut down.

It’s not the itty bitty decisions that get made behind the curtain of a closed meetings. It’s big decisions: decisions that affect citizens and, more often than not, the citizens’ checkbook. The public deserves more than a shrug of the shoulders and a retreat behind a hollow excuse.

MEGAN RHYNE is the executive director of the Virginia Coalition for Open Government, a nonprofit alliance formed to promote expanded access to government records, meetings and other proceedings at the state and local level. Email her at