January 31, 2001

Mr. Patrick Kershaw
Kents Store, VA

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mail of January 12, 2001.

Dear Mr. Kershaw:

You have asked whether your rights have been violated under the Virginia Freedom of Information Act (FOIA). You indicate that a county supervisor publicly discussed the contents of a document that the county claimed to be exempt from FOIA under the attorney-client privilege. The document is related to a citizen lawsuit concerning the county's recent decision to include development-friendly language in its comprehensive plan and allow a power plant to build in the county. One of the supervisors made a public statement indicating that the document had a major effect on the public hearings concerning the power plant. You ask if the public discussion of the document would waive the attorney-client privilege and open it to public access.

Section 2.1-342 of the Code of Virginia states that all public records are open for inspection and copying except as specifically provided by law. Subsection A. 7. of § 2.1-342.01 specifically exempts [w]ritten advice of legal counsel to state, regional or local public bodies or public officials and any other records protected by the attorney-client privilege. The Attorney General of Virginia has held that the attorney-client privilege is one which belongs to a client and which allows the client to refuse to disclose, and prevents an attorney from disclosing, confidential communications between a client and that attorney.[fn1]

Assuming that the document is properly subject to this exemption, it appears that the county is the client and thus the holder of the privilege in the scenario that you present. The supervisor, therefore, has the discretion to decide how much or how little of the privileged information will be made available to the public.

Generally, when a public official chooses to discuss information contained in a document subject to an exemption, that document does not lose the protection of the exemption. The Attorney General touched on this principle in an opinion addressing the working paper exemption under FOIA. In that instance, a superintendent of schools had in his possession charts, graphs and other documents that were properly subject to the working papers exemption. The superintendent used the documents to make a presentation to the school board, but did not distribute the actual documents . Despite this public discussion, the Attorney General opined that the documents were still subject to the working papers exemption, even after the presentation.[fn2] While this case involved a different factual situation and exemption than the situation that you have presented, the conclusion is the same in your situation -- despite the fact that the supervisor discussed the contents of an exempt document, the document does not lose its status as protected by the attorney-client privilege.

Peripherally, also please note that subsection B of § 2.1-342 requires that requests for public records identify the requested records with reasonable specificity. You indicated in your inquiry that you felt that the county had violated your rights and privileges under FOIA in response to prior requests, because you received different documents than others who had made similar requests. Such a response might only be a violation to the extent that both your requests and the other requests mentioned used identical language in identifying the records with reasonable specificity.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1988 Op. Atty. Gen. Va. 35.

2. 1979-80 Op. Atty. Gen. Va. 378.