City attorney gives FOIA refresher to Chesapeake council, stresses caution on electronic communications

City Attorney Catherine Lindley delivered the Fairfax-required Virginia Freedom of Information Act training at the council work session on Feb. 11, reviewing the law’s meeting and records components and why members must complete training when first taking office and every two years thereafter.

Lindley said FOIA "is basically Virginia code statutes" designed to ensure public access to meetings and records and that the law should be liberally construed to promote citizen awareness. She walked council through public-meeting rules (notice of date, time and location; minutes; provision of materials to the public at the same time they are provided to the council) and the state’s five-day initial response standard for public-records requests.

She cautioned about electronic communications: "real time communications" among three or more members (for example, a Zoom call or rapid back-and‑forth text thread) can constitute a meeting under FOIA and therefore require notice and public access. Lindley said the General Assembly’s 2024 narrower statutory definition of “public business” reduced some uncertainty but left areas that still require judgment.

On closed sessions, Lindley said councils must take an affirmative open‑meeting vote that states the subject matter and the statutory exemption that authorizes a private meeting. Typical exemptions include consultation with legal counsel on actual or probable litigation, personnel matters, acquisition or sale of property, and negotiation strategy for public contracts. She emphasized that counsel may limit discussion in closed session to the subject stated in the motion and that formal votes are not taken in closed meetings; upon return to open session the council must certify that only the stated subject was discussed.

Lindley also reviewed attorney‑client privilege, noting that a privileged memorandum transmitted outside the client‑attorney relationship (for example, to a third party) risks waiving the privilege and may subject the document to a FOIA request. On retention, she advised council members to coordinate with the city clerk (the records coordinator) and follow the Library of Virginia retention schedule for categories such as counsel correspondence and citizen complaints.

In the question-and-answer session, council members asked about the procedure if a member objects to including a non‑staff person in a closed session. Lindley said the objecting member should voice opposition in closed session, could refuse to certify the closed meeting when the council reconvenes in open session, and that such a refusal would be part of the evidence in any subsequent court petition.

Why this matters: The briefing highlights operational limits on informal or electronic discussions among members and explains the documentation and preservation duties that trigger FOIA obligations for council members and staff.