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 
2

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. 
3

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 
4

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. 
5

 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). 
6

 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 LanceStar, 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 
7

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 
8

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. 
9

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). 
10

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 
11

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 
12

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 
13

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 
14

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 
15

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. 
16

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, 
17

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.