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May 4, 2004
Mr. Jeff Sturgeon
Roanoke Times
Roanoke, Virginia
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 February 12, 2004.
Dear Mr. Sturgeon:
You have asked a question concerning the working papers
exemption under the Virginia Freedom of Information Act (FOIA), and
its application to certain documents held by the Roanoke
Redevelopment and Housing Authority ("the Authority").
You indicate that the Authority is involved in a major
redevelopment project that includes a high-tech business park for
medical companies. By way of background, you indicate that the
Authority has acquired private property for phase one of the
project, and has begun demolition of existing buildings. You
indicate that the Authority has entered into a written agreement
with two nonprofit health organizations to purchase this property
from the Authority and complete the development for phase one of
the project. Before the land is conveyed to the health
organizations, the general land use plan for the redevelopment
project gives the Authority the right to review and approve the
developers' preliminary and final plans and specifications to
ensure that the plans conform with the Authority's redevelopment
plan.
You requested, under FOIA, a copy of a master plan document
prepared by an engineering company on behalf of one of the two
health organizations, and submitted to the Authority for review.
You indicate that the Authority's community development director
acknowledged that the Authority received a copy of the master plan
document to check the plan against redevelopment guidelines.
However, the director withheld the document from disclosure and
cited, in writing, the working papers exemption at subdivision A 6
of § 2.2-3705 of the Code of Virginia. You ask if the master
plan document may be withheld pursuant to this exemption.
Subsection A of § 2.2-3704 states that [e]xcept as
otherwise specifically provided by law, all public records shall be
open to inspection and copying by any citizens of the
Commonwealth. The policy set forth in subsection B of §
2.2-3700 states that the provisions of FOIA are to be liberally
construed, and that [a]ny exemption from public access to
records or meetings shall be narrowly construed. Subdivision A
6 of § 2.2-3705 allows a public body to withhold [w]orking
papers and correspondence of ...the mayor or chief executive
officer of any political subdivision of the Commonwealth, and
"working papers" are defined as those records prepared by or for
an above-named public official for his personal or deliberative
use. Section 36-4 allows counties and cities to create
redevelopment and housing authorities to clear, plan and
reconstruct areas in which unsafe or unsanitary housing conditions
exist, and to redevelop blighted and deteriorated areas. The
section declares that such authorities are political subdivisions
of the Commonwealth. As such, the director of the Authority, as the
chief executive officer, would be authorized to withhold his
working papers from public disclosure. The question, in this case,
is whether the master plan document was prepared for the director's
personal or deliberative use, and thus may properly be withheld as
a working paper.
This office previously interpreted the working papers exemption
as it applied to budget estimates submitted by city departments to
the city manager for preparation the annual budget.1 In that instance, the budget estimates were not
working papers of the city manager, even though the city manager
was the chief executive officer of the locality. By statute, the
departments were required to annually submit budget estimates to
the governing body of the locality; in practice, the city council
delegated authority to the city manager to receive and prepare the
city's budget proposal. Construing the working papers exemption
narrowly, as is required by law, the opinion concluded that the
budget estimates were not prepared for the city manager's personal
or deliberative use, because he was receiving the documents on
behalf of the city council. In addition, the Attorney General of
Virginia has opined that documents routinely generated pursuant to
law do not acquire a working paper character merely because they
come to be deposited in the chief executive's office in the
ordinary course of business.2
These opinions appear directly relevant to the situation that
you present. The general land use plan that you cited in your
correspondence requires the Authority to review and approve
preliminary and final redevelopment plans prior to conveyance of
the land. As such, it appears that the director received the master
plan document in the ordinary course of business of administering
the day-to-day operations of the Authority. The director may review
and approve the master plan on behalf of the Authority if it has
delegated this task to the director; nonetheless, the document was
technically submitted to the Authority for its review, and not to
the director for his personal or deliberative use. Therefore, the
working papers exemption would not properly apply to the master
plan document, because it was required to be submitted to the
Authority and only came into the possession of the director in the
course of conducting the day-to-day operations of the
Authority.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1See Virginia
Freedom of Information Advisory Council 32 (2001).
21980-81 Op. Atty.
Gen. Va. 395.
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