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Closed Meeting Violated FOIA

Deborah Elkins//January 17, 2011

Closed Meeting Violated FOIA

Deborah Elkins//January 17, 2011//

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Local officials violate Virginia’s Freedom of Information Act when they went into a closed meeting for discussion of a proposed contract with a counterterrorism training company that wants to build a training facility and academy in the county, a Westmoreland County Circuit Court says.

After the meeting, a request was made of Robert Fink, county zoning administrator, to provide copies of all documents relating to the contract between O’Gara Group Inc. and the County Industrial Development Authority. After these documents were provided, plaintiffs supplemented their request and asked for a copy of one specific document referred to in the O’Gara contract. That document was never provided.

It is this court’s conclusion that neither public body (the board of supervisors and the Authority) followed the necessary procedural requirements of the Act in convening the closed meeting. What is contained in the minutes of the two public bodies is precisely what is expressly prohibited. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall iiinotiii be sufficient to satisfy the requirements for a closed meeting,” the statute says.

Plaintiffs contend the Jan. 9, 2009, meeting between O’Gara’s president and a small number of adjacent landowners constituted a “previous announcement” of the prospective business which then precluded the board and Authority from invoking Sec. 2.2-3711(A)(5) as the purpose for the closed meeting. The court declines to accept that argument. There are no cases that specifically address what constitutes a “previous announcement” under the Act. It is this court’s conclusion that the correct interpretation of a “previous announcement” under the statute is an announcement either to or by the public body and which results in or demonstrates that the members of the public body have some knowledge of the business opportunity apart from what is learned in the closed meting.

The court has found that the board and the Authority did not comply with FOIA when the two bodies failed to comply with § 2.2-3712(A) when they met in the closed meeting on Jan. 12, 2009. the court has also found the zoning administrator violated § 2.2-3704(B) by not timely responding to the June 9, 2009 request for the letter of compliance. The court finds plaintiffs have substantially prevailed on their FOIA claims and there are no special circumstances advanced by defendants that would make an award of costs and fees unjust. The court declines to enter an injunction under the facts of this case. There is insufficient evidence to find the members of either body acted in a manner that would warrant the imposition of a civil penalty. The court finds plaintiffs are entitled to recover reasonable costs and attorneys’ fees from the two public bodies.

Case CL 094-141 is a case against the zoning administrator, the board of supervisors and the O’Gara Group Inc. the court concludes none of the plaintiffs have standing to bring a suit or declaratory or injunctive relief, nor are any of the plaintiffs a “person aggrieved” and thereby entitled to appeal a decision from a board of zoning appeals. In case, on appeal, the Supreme Court finds one or more of the plaintiffs to have standing, the court also holds, in the alternative, plaintiffs are not entitled to injunctive relief on the merits of their claims.

Assuming plaintiffs were “aggrieved” and entitled to appeal the BZA decision in Case CL010-05, the court finds the BZA decision was correct.

Ripol v. Westmoreland County Industrial Dev. Auth. (Swett, J.) No. CL09-92, Dec. 28, 2010; Westmoreland County Cir.Ct. VLW 010-8-246, 25 pp.

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