FOIA and Discovery in Employment Litigation: What Happens in Closed Session Does Not Necessarily Stay in Closed Session

Pursuant to FOIA, a public body may hold a closed meeting for, among other purposes discussion about personnel matters related to specific employees.  See Va. Code § 2.2-3711(A)(1).  The minutes of a closed meeting, if any are taken, are not subject to mandatory public disclosure, but that is not the end of the story. See Va. Code § 2.2-3712(I).      

Lawsuits against public bodies, as employers, are unavoidable.  There is no doubt that at some point, a current or former employee will feel aggrieved by a public employer’s action, or perceived action, and will ultimately file suit in state or federal court. 

Then comes the inevitable discovery requests – which may implicate discussions about the current or former employee that occurred in a properly held closed session.  These requests may include requests for minutes of the closed session, personal notes taken by members, and information about what specifically was said and by whom. 

When responding to a plaintiff’s discovery requests, the public employer, with the assistance of counsel, must review each request and assert objections where appropriate.  Importantly, objecting to providing relevant information or documents regarding a discussion solely on the basis that such discussion occurred in a properly closed session, is not appropriate.  Relevant documents and information can be withheld pursuant to attorney-client privilege or work product protection, but only if the closed session at issue was held for the purpose of consultation with legal counsel or documents were created in anticipation of litigation.  A reminder however, that an attorney’s presence alone is not enough for the privilege to attach.

The takeaway: Because a discussion happened in closed session does not, in and of itself, prevent information related to that discussion from ever seeing the light of day.

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Please feel free to contact the Labor & Employment Team with any questions as they monitor the fate of this legislation and help employers stay in legal compliance as the legal landscape continues to evolve.