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Present:    Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Russell, S.J.
WHITE DOG PUBLISHING, INC., ET AL.
v.    Record No.  052333    OPINION BY JUSTICE CYNTHIA D. KINSER
September  15,  2006
CULPEPER COUNTY BOARD OF SUPERVISORS
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
Herman A. Whisenant, Jr., Judge Designate
Three newspaper publishing entities appeal the circuit
court’s judgment finding that the Culpeper County Board of
Supervisors  (the Board) did not violate the Virginia
Freedom of Information Act, Code  §§  2.2-3700 through  -3714
(FOIA), by going into a closed session at its October  5,
2004 meeting.    Because we conclude the Board’s closed
session did not fall within the statutory exemption under
Code  §  2.2-3711(A)(30) to FOIA’s requirement for public
access to meetings, we will reverse the circuit court’s
judgment.    We will also reverse the circuit court’s
judgment refusing to award attorney’s fees and reasonable
costs for another, separate violation of FOIA by the Board.
RELEVANT FACTS AND PROCEEDINGS
For many months prior to the Board’s closed meeting at
issue in this appeal, the need for and construction of a
new public high school facility in Culpeper County had been
the subject of considerable public debate and had appeared




on the meeting agendas of both the Board and the Culpeper
County School Board  (the School Board).    The debate
centered on differing approaches for expanding Culpeper
County’s high school capacity and became more intense after
a preliminary study by an architectural firm hired by the
School Board did not favor the Board’s preferred approach.
Eventually, in June  2004, the School Board entered
into a contract with SHW Group, LLP  (SHW), for the
planning, design, and construction of a new high school
facility, and for the planning and design of renovations to
an existing high school building.1    The Board was not a
party to this contract.    Because of concerns about how the
preliminary study had been conducted and because the Board
wanted to receive reports from SHW and talk to its
architects directly, the Board decided that it should be a
party to the contract.    Thus, the Board sought and obtained
an amendment to the SHW contract that, among other things,
added Culpeper County as a party to the contract.
After the first contract amendment, the Board
continued to be concerned about whether various options for
school size and configuration were being diligently
pursued.    For that reason, the Board sought and obtained a
1 The record also refers to SHW as  “SHW Group, Inc.”
For purposes of this appeal, the correct name is
irrelevant.
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second amendment to the SHW contract.    This amendment, in
relevant part, directed SHW to
consider the feasibility of potential additional
planning and design options, including new
buildings or renovations, any such options
required to meet the educational programming and
space planning needs of the school division as
determined and approved by the School Board, but
which may also extend the costs of such new or
renovated buildings over a longer period of time
than is presently contemplated.
From the Board’s viewpoint, the second amendment revised
the scope of work under the SHW contract and opened the
door to options the Board wanted SHW to consider in
planning and designing the new high school facility.
Before going into closed session at its October  5,
2004 meeting, the Board, among other things, approved the
second amendment to the SHW contract.    The Board then
adopted a  13-item closed session motion that, in relevant
part, cited Code  §  2.2-3711(A)(30) and listed as one of the
reasons for the closed session a discussion  “with the
County Attorney and staff  [about] changes to a specific
public contract where public discussion would adversely
affect the bargaining and negotiating position of the
County.”    The motion, and the fact that its wording merely
tracked the language set forth in Code  §  2.2-3711(A)(30),
were typical of all closed session motions drafted by the
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attorney for Culpeper County, John D. Maddox, and adopted
by the Board.
Maddox, however, also prepared a non-public agenda for
the closed session.    That agenda was more specific than the
public, closed session motion adopted by the Board.    The
non-public agenda contained  12 items for the closed
session, one of which was a discussion  “with the County
Attorney, staff, and consultants  [about] a change in the
scope of work to be provided by SHW Group, Inc., under the
architect’s contract and the impact of new data on that
change in scope.”
Upon returning to open session at the conclusion of
the three and one-half hour closed meeting, the Board
members certified they had discussed or considered only
those public business matters exempt from the open meeting
requirements of FOIA, as identified in the closed session
motion.    In open session, the Board then adopted a motion
stating
that pursuant to the second amendment to the SHW
Group, Inc. Agreement,  .  .  . the Board request[s]
SHW to review the following options:  (1) Using
SHW’s Option B to create instead of  [a]  1,200
expandable[-]student school to create a  1,000
expandable-student school new high school; and
(2) to create a  2,400 student high school at the
present high school site or two  1,200 student
high schools at the same site.
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About  16 days after the Board’s closed meeting at
issue, White Dog Publishing, Inc.  (White Dog), publisher of
The Culpeper Citizen, filed an amended petition for a writ
of mandamus in the General District Court of Culpeper
County.    White Dog alleged that, during the Board’s closed
session on October  5,  2004, the Board discussed items
relating to the proposed construction of a high school in
Culpeper County with an architect representing the firm of
SHW.    Continuing, White Dog asserted that the Board had
violated Code  §  2.2-3712(A) by
failing to identify properly the subject matter
of the closed session, and to properly state the
purpose of the closed session  [and] by conducting
a closed session because none of the exemptions
listed by the Board and, in fact, none of the
exemptions found in  .  .  . Code  §  2.2-3711(A)
justified the closure of the Meeting for the
discussion of matters related to the construction
of  [a] high school.
White Dog sought a writ of mandamus directing the Board to
make available for public inspection all minutes, notes,
and other information reflecting the discussion held in the
closed session and further directing the Board to cease its
reliance on the exemptions set forth in Code  §  2.2-3711(A)
to close meetings that are required to be open to the
public.    White Dog also sought an award of reasonable costs
and attorney’s fees pursuant to Code  §  2.2-3713(D).
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After an evidentiary hearing, the general district
court concluded that neither the Board’s motion to close
its October  5 meeting nor the subject matter of the closed
session violated the requirements of FOIA.    White Dog then
appealed to the circuit court pursuant to Code  §  16.1-106.
In the circuit court, Media General Operations, Inc.,
publisher of the Culpeper Star-Exponent, and The Free
Lance-Star Publishing Company, publisher of The Free Lance-
Star, were granted leave to intervene in the proceeding
(collectively, along with White Dog, the publishers).
During a de novo proceeding, the circuit court heard
evidence from three witnesses.    The Board presented
testimony from the Culpeper County administrator, Frank T.
Bossio, and Maddox.    Marla McKenna, a reporter for the
Culpeper Citizen, testified on behalf of the publishers.
The circuit court also admitted into evidence various
documents, including the Board’s motion to close its
October  5 meeting.
When Bossio and Maddox were asked why, in their
respective opinions, the closed session was necessary, both
explained that, after the second amendment to the SHW
contract, the Board needed to formulate exactly what
options for constructing the new high school facility would
be explored and presented to the School Board.    Bossio
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explained that the Board wanted to have the benefit of the
“unfettered advice” of the SHW architect so it could use
that advice in negotiating with the School Board about the
plans for the new high school facility.    Bossio believed
the architect was  “more guarded and less forthcoming” when
presenting his views in meetings where School Board
officials were present.    Thus, Bossio concluded that a
closed session of the Board’s meeting was necessary in
order to have a candid and unrestrained discussion with the
SHW architect about the options for the new high school
facility.
Maddox further explained that, once those options were
established during the closed session, Bossio and the SHW
architect would present them to the School Board.    In
Maddox’s words,  “[w]e were talking about contract
negotiations with the School Board for potentially a third
amendment” to the SHW contract.    Maddox, however, admitted
that, during the closed session, no negotiations between
the Board and SHW occurred with regard to the SHW contract.
McKenna had attended the Board’s October  5 meeting as
a reporter for the Culpeper Citizen.    She testified that
the motion to go into closed session did not mention the
SHW contract.    Because she did not know there would be any
business at the Board’s meeting relating to the new high
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school or its construction, she left the meeting when the
Board went into closed session.
The day after the closed session at issue, the SHW
architect prepared and transmitted to Bossio a memorandum
summarizing the discussions that occurred during that
session.    Bossio asked Maddox to review the memorandum, and
upon doing so, Maddox requested that the first three
paragraphs be deleted because he believed the document
might be subject to disclosure under FOIA and those three
paragraphs could potentially embarrass the School Board.
In pertinent part, the memorandum stated,  “the purpose of
the meeting was to clarify the Board of Supervisor[s’]
intent regarding the scope of services being requested by
the second amendment to SHW’s contract with the School
Board.”2
At the conclusion of the evidentiary hearing, the
circuit court held that the Board violated FOIA  “by making
a motion in open session that failed to meet the
requirements of  [Code]  §  2.2-3712(A) before closing the
2 On brief, the publishers discuss a FOIA request by
the Culpeper Star-Exponent for any records or minutes of
the Board’s closed session.    As the Board notes, any
alleged violation of FOIA arising from that request was
neither pled by the publishers nor ruled on by the circuit
court.
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October  5,  2004 meeting.”3    The circuit court, however,
concluded that the Board had not violated FOIA by closing
its October  5,  2004 meeting pursuant to Code  §  2.2-
3711(A)(30).    The court reasoned that, since the Board was
a party to the SHW contract, it was appropriate for the
Board to go into closed session to discuss the scope of the
contract and the Board’s strategy.    Even though the circuit
court had found one violation of FOIA by the Board, the
court refused to award attorney’s fees and reasonable costs
to the publishers.    The circuit court concluded that, under
3 Code  §  2.2-3712(A) states:
No closed meeting shall be held unless the
public body proposing to convene such meeting has
taken an affirmative recorded vote in an open
meeting approving a motion that  (i) identifies
the subject matter,  (ii) states the purpose of
the meeting and  (iii) makes specific reference to
the applicable exemption from open meeting
requirements provided in  §  2.2-3707 or subsection
A of  §  2.2-3711.    The matters contained in such
motion shall be set forth in detail in the
minutes of the open meeting.    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 not be
sufficient to satisfy the requirements for
holding a closed meeting.
The circuit court’s conclusion that the Board’s closed
meeting motion violated this statutory provision is not
challenged in this appeal.    See Nageotte v. Board of
Supervisors of King George County,  223 Va.  259,  266,  288
S.E.2d  423,  426  (1982)  (FOIA exemption at issue required
the purpose of a public body’s closed session be identified
with the applicable item of business on the meeting
agenda).
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Code  §  2.2-3713(D),  “special circumstances  [made] such an
award unjust.”    The publishers appeal from the circuit
court’s judgment.
ANALYSIS
One of the purposes of FOIA is to  “ensure[] the people
of the Commonwealth  .  .  . free entry to meetings of public
bodies wherein the business of the people is being
conducted.”    Code  §  2.2-3700(B); see also Tull v. Brown,
255 Va.  177,  182,  494 S.E.2d  855,  857  (1998); City of
Danville v. Laird,  223 Va.  271,  276,  288 S.E.2d  429,  431
(1982).    To achieve that purpose, the General Assembly has
directed that the provisions of FOIA  “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.”    Code
§  2.2-3700(B).    In addition,  “[a]ny exemption from public
access to  .  .  . meetings shall be narrowly construed and no
.  .  . meeting  [shall be] closed to the public unless
specifically made exempt pursuant to  [FOIA] or other
specific provision of law.”    Id.    In deciding the issues
presented in this appeal, we are bound by these principles.
When the Board went into the closed session at its
October  5,  2004 meeting, it relied upon the exemption to
FOIA’s requirement of public access to meetings set forth
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in Code  §  2.2-3711(A)(30).    That subsection permits a
public body to hold a closed meeting for the purpose of a
“[d]iscussion of the award of a public contract involving
the expenditure of public funds, including interviews of
bidders or offerors, and discussion of the terms or scope
of such contract, where discussion in an open session would
adversely affect the bargaining position or negotiating
strategy of the public body.”    Id.    In the publishers’
view, this exemption permits a closed meeting only when a
public body is discussing or negotiating the award of or
amendment to a public contract if such discussion would
adversely impact the public body’s bargaining or
negotiating position.    The publishers argue that  “the
availability of the exclusion ceases when the process of
bargaining or negotiating with the vendor concludes”
because the purpose of the exemption is  “to protect the
public purse during the competitively-sensitive stages of
procurement.”
The Board, however, has a different interpretation of
the exemption.    It argues that Code  §  2.2-3711(A)(30)
identifies two distinct types of discussions that can occur
in a closed meeting:  (1) discussion of the award of a
public contract; and  (2) discussion of the terms and scope
of a public contract.    According to the Board, the second
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type of discussion allows a public body to close a meeting
in order to  “develop a bargaining position or negotiating
strategy about the application, enforcement or modification
of a particular contract’s terms and scope.”    To the extent
the Board asserts that this exemption allows a closed
meeting discussion relating to the post-award  “application”
or  “enforcement” of a public contract, we do not agree.
In construing statutory language, we are bound by the
plain meaning of clear and unambiguous language.    Cummings
v. Fulghum,  261 Va.  73,  77,  540 S.E.2d  494,  496  (2001).    We
do not isolate particular words or phrases but, instead,
examine a statute in its entirety.    Ragan v. Woodcroft
Vill. Apartments,  255 Va.  322,  325,  497 S.E.2d  740,  742
(1998).                                                                “The purpose for which a statute is enacted is of
primary importance in its interpretation or construction.”
Norfolk S. Ry. Co. v. Lassiter,  193 Va.  360,  364,  68 S.E.2d
641,  643  (1952); accord Virginia Elec. & Power Co. v. Board
of County Supervisors of Prince William County,  226 Va.
382,  388,  309 S.E.2d  308,  311  (1983).
The unambiguous language in Code  §  2.2-3711(A)(30),
viewed in its entirety, demonstrates that the purpose of
the exemption is to protect a public body’s bargaining
position or negotiating strategy vis-à-vis a vendor during
the procurement process.    Under that exemption, the terms
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or scope of a public contract are proper subjects for
discussion in a closed meeting of a public body only in the
context of awarding or forming a public contract, or
modifying such contract, and then only when such discussion
in an open meeting would adversely affect the public body’s
bargaining position or negotiating strategy regarding the
contract.    Contrary to the Board’s position, the exemption
does not allow a public body to close a meeting in order to
discuss the application or enforcement of the scope or
terms of a previously awarded public contract.    The Board’s
view of the exemption would allow any discussion about the
scope or terms of an awarded contract to occur during a
closed session if the discussion would adversely affect
some aspect of the Board’s bargaining position or
negotiating strategy.    The Board does not limit the
exemption to discussions involving procurement.    Such an
expansive interpretation of Code  §  2.2-3711(A)(30) would be
inconsistent with the General Assembly’s directive that an
exemption to FOIA’s requirement of open meetings be
narrowly construed.    Code  §  2.2-3700(B).
The Board, nevertheless, argues the circuit court
correctly determined that the Board did not violate FOIA by
closing its October  5 meeting pursuant to Code  §  2.2-
3711(A)(30).    According to the Board, the evidence proves
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the Board  “was positioning itself to negotiate the scope of
SHW[’s] Architects’ contract with the School Board.”
Continuing, the Board argues that the evidence demonstrated
its need for a private discussion with the SHW architect in
order to  “get his candid analysis of the options that might
be included in the scope of his contract and his assistance
in convincing the School Board to agree to a scope of work
that addressed the  .  .  . Board’s concerns.”
We agree that the evidence did indeed prove exactly
what the Board now contends.    But, the Board’s purpose in
closing its October  5 meeting was not one that is allowed
under the exemption contained in Code  §  2.2-3711(A)(30).
As admitted, the Board was discussing its strategy in
relation to the School Board due to the policy dispute
between those two public bodies about the new high school
facility.    The Board was not discussing changes in the
terms or scope of the SHW contract vis-à-vis the vendor.
Indeed, Maddox admitted that no negotiations with SHW
occurred during the closed session.    In other words, the
purpose of the Board’s closed meeting was not for forming
or modifying a procurement contract.
Thus, we conclude the circuit court erred in finding
the Board did not violate FOIA by closing its October  5,
2004 meeting under Code  §  2.2-3711(A)(30).    That
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conclusion, along with the circuit court’s unchallenged
finding that the Board’s closed session motion violated
Code  §  2.2-3712(A), means the publishers  “substantially
prevail[ed] on the merits of the case.”4    Code  §  2.2-
3713(D).    Therefore, they are entitled to an award of
attorney’s fees and reasonable costs  “unless special
circumstances would make an award unjust.”    Id.
In light of our holding, we must address the circuit
court’s refusal to award attorney’s fees and reasonable
costs to the publishers.    Although the circuit court
concluded the Board’s closed session motion violated Code
§  2.2-3712(A), the court refused to award attorney’s fees
and reasonable costs to the publishers because  “special
circumstances” made such an award unjust.    Code  §  2.2-
3713(D).    The circuit court did not specify what the
special circumstances were but reached that conclusion for
the reasons stated in the Board’s memorandum opposing an
award of attorney’s fees.    The special circumstances
asserted by the Board in that memorandum were:  (1) the
Board’s procedure to close a meeting has been followed for
4 Since the publishers have now prevailed on all
issues, it is not necessary to decide whether they would
have  “substantially prevail[ed] on the merits of the case”
if the Board’s sole FOIA violation had been its failure to
follow the requirements of Code  §  2.2-3712(A) with regard
to its closed meeting motion.
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four years and no one has previously complained;  (2) the
violation was not willful and knowing;  (3) the general
district court’s ruling in favor of the Board on all issues
and the lack of precedent on the precise issues presented
demonstrate that reasonable attorneys and judges can
disagree on the statutory requirements for a motion to
close a public meeting;  (4) the extensive research on FOIA
and its requirements by Maddox; and  (5) the closed meeting
motion did not release the Board from its other obligations
under FOIA as shown by the non-public agenda the Board
followed during the closed meeting.
Based on the record before us, none of those grounds
constituted  “special circumstances” sufficient to make an
award of attorney’s fees and reasonable costs unjust in the
circumstances of this case.    We will therefore remand this
case for a determination of an award of attorney’s fees and
reasonable costs to the publishers in accordance with Code
§  2.2-3713(D).
CONCLUSION
For the reasons stated, we conclude the Board violated
FOIA by closing its meeting on October  5,  2004.    The
Board’s purpose for the closed session did not fall within
the exemption set forth in Code  §  2.2-3711(A)(30).    We
further conclude the circuit court erred in finding that,
16




although the Board’s motion to close its meeting violated
FOIA, special circumstances made an award of attorney’s
fees and reasonable costs unjust under Code  §  2.2-3713(D).
Thus, we will reverse the judgment of the circuit court and
remand for issuance of a writ of mandamus and the
determination of an award of attorney’s fees and reasonable
costs to the publishers.
Reversed and remanded.
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