December 12, 2000

Mr. Tom Gear
Member, Hampton City Council
Hampton, 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 our telephone conversation of November 8, 2000.

Dear Councilman Gear:

This office issued an opinion limited to the facts you presented in a November 1, 2000, phone conversation with this office relating to the "Crossroads Project."[fn1] This follow-up opinion is based upon additional facts you presented subsequent to that opinion.

You indicate that a consultant's report concerning the "Crossroads Project" was in the possession of the city manager, but had been commissioned by the city council. The manager refused to release a copy of the report to you, a council member, on the grounds that it fell under the working papers exemption of the Virginia Freedom of Information Act (FOIA). On November 9, 2000, the city council voted to proceed with the "Crossroads Project." After this approval, the city manager still invoked the working papers exemption in refusing to give council members a copy of the report, but invited individual members to come to his office and read it. You ask whether this invitation to view the report negated the working papers exemption available under FOIA. Subdivision A. 6. of § 2.1-342.01 of the Code of Virginia defines "working papers" as those records prepared by or for one of the following officers for his personal or deliberative use: the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly or the Division of Legislative Services; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education. (Emphasis added). Once the chief executive disseminates any records held by him, the working papers lose their exemption status.[fn2]

In light of the November 9 vote to approve the "Crossroads Project," the question of whether allowing individual members to view, but not copy, the report affects the status of the working papers exemption is moot. When the council voted to proceed with the project, the report became a part of the public record relating to the "Crossroads Project." FOIA defines a public record as one prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. Thus, the working papers exemption, whether or not properly invoked, would no longer apply. The deliberative process, upon which the working papers exemption is based, ended once an affirmative vote to proceed with a particular course of action was taken.

Notwithstanding the resolution of this particular situation, the facts you presented raise a few peripheral issues with regard to the application and interpretation of FOIA and the working papers exemption. The first question relates to whom the consultant's report really belonged to -- the city manager or the city council. The second issue involves what it means for a document to be disseminated.

The facts indicate that the city council commissioned the consultant's report at issue, and that the city manager did not have authority to commission such report without city council's authorization. This leads one to question whether the resulting report belonged to the manager, and was thus subject to the working papers exemption, or belonged to the council. On the one hand, although the report was delivered to the manager, it could be argued he received it only in his capacity as an agent for the council. A city manager generally acts at the pleasure of the city council that he serves, absent specific charter provisions that spell out his responsibilities. As such, any or all activities of a manager could perhaps be interpreted as being performed as an agent of or on behalf of the city council.

On the other hand, such a broad interpretation would negate the application of the working papers exemption in nearly all instances in the case of a city manager, and would not appear to follow the intent of the General Assembly in drafting the exemption. A better way to examine the working papers exemption might be to focus on the personal or deliberative use language within FOIA. Such language indicates a "value-added" approach in determining whether a document in question belongs to an executive or a governing body. One must examine whether an executive, such as a city manager, merely received the document on behalf of the council, truly as an agent, or whether it required his review, deliberation, or other subjective evaluation, and thus became part of his work product.

In examining the facts presented here, it appears that the document in question may rightfully belong to the city council and not the city manager. If in fact the city manager received the consultant's report on behalf of the council, then he might have been acting as repository of the document. It is unclear whether he was required to deliberate upon or add work product to the document, thus bringing it within the purview of the working papers exemption. Merely because the consultant sent the document to the city manager and it passed through his hands would not be enough to invoke the protection of the working papers exemption.[fn3]

A second peripheral issue raised by the fact scenario relates to what it means for a document to be disseminated. As already noted, a document looses its working papers status when disseminated by the chief executive officer.[fn4] Neither FOIA nor the Attorney General's opinion that set forth this rule define "dissemination," and rules of construction dictate that when a term is not defined, it is considered to have its ordinary meaning, given the context in which it is used.[fn5] Webster's New Collegiate Dictionary (1977 Edition) defines "to disseminate" as to spread abroad as though sowing seed; to disperse throughout; or to spread widely. The question becomes whether allowing the members of the city council to come to the manager's office to view the document would be considered "dispersing the record throughout." It is clear that if copies of the report were distributed to the members, it would be considered dissemination. The Attorney General has opined that a document held by a superintendent of schools lost its working papers status once members of the school board obtained a copy.[fn6] The question remaining here is whether allowing the members to view, but not receive copies, of the report would also fall under the definition of dissemination.

The policy of FOIA, at § 2.1-340.1, states that FOIA ensures the people of the Commonwealth ready access to records in the custody of public officials. (Emphasis added). The policy further reads that the provisions of FOIA should be construed liberally to afford access to government, and the exemptions should be construed narrowly. According to the rules of construction stated above, the policy of FOIA sets the context for understanding the definition of dissemination. In this light, it appears that allowing individual members of the council to inspect, but not copy, the report would be considered dissemination, and thus would negate the working papers exemption. The city manager allowed access to a report in the custody of a public official. In the context of FOIA, dissemination of a record could be equated with allowing access to a record, regardless of whether copies are made. While FOIA does mandate at § 2.1-342 that public records be open for both inspection and copying, the policy of FOIA focuses on access. It does not appear that an executive officer in possession of a document could trump actual dissemination of a working paper simply by refusing to allow copies to be made. In this case, the council members were allowed ready access to inspect the actual document in question. Thus, whether or not the document was a proper subject of the working papers exemption, the exemption status was likely lost when the document was shared. However, this issue is merely peripheral to the decision at hand, since the report in question lost its working papers status when the city council decided to proceed with the "Crossroads Project."
Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. Virginia Freedom of Information Advisory Council AO-8 (2000).

2. 1982-83 Op. Atty. Gen. Va. 724.

3. Va. Code Ann. § 2.1-342.01(A)(6) (Michie 2000).

4. Id.

5. Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op. Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-87 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., §46:01.

6. 1976-77 Op. Atty. Gen. Va. 315.