Privileged communications between a public body subject to the requirements of the Open Governmental Proceedings Act, West Virginia Code §§ 6-9A-1 to -7 (1993 and Supp.1998), and its attorney are exempted from the open meetings requirement of the Act.
Such executive session may be closed to the public only when the following statutory requirements are met:
(1) a majority affirmative vote of the members present of the governing body of the public body, as required by West Virginia Code § 6-9A-4;
(2) the notice requirements as found in West Virginia Code § 6-9A-3 shall be followed;
(3) the written minutes requirements as found in West Virginia Code § 6-9A-5 shall be followed.
However, a public agency is not permitted to close a meeting that otherwise would be open merely because an agency attorney is present.
When a public body closes an open meeting on the basis that the matters to be discussed in that meeting are exempt from the Act as a result of the attorney-client privilege and that claim is challenged, the circuit court should review in camera whether the communications do indeed fall within that privilege.
In other words, a bare claim that the matters to be discussed in a meeting of a public body are privileged, if challenged, does not suffice to close the meeting.