October 30, 2002

Elizabeth C. Waters
The Free Lance-Star
Fredericksburg, 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 August 20, 2002.

Dear Ms. Waters:

You have asked a question regarding the working papers exemption of the Virginia Freedom of Information Act (FOIA). Specifically, you ask if both the mayor and the city manager in the same locality may claim the exemption. Further, you ask if both cannot use the exemption, who may properly invoke it.

Pursuant to subsection A of § 2.2-3704 of the Code of Virginia, all public records must be open for inspection and copying, unless otherwise specifically provided by law. The policy provision of FOIA at § 2.2-3700 states that [t]he provisions of this chapter shall be liberally construed to promote an increased awareness of all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed.

Subdivision A6 of § 2.2-3705 provides an exemption for the [w]orking papers and correspondence of ... the mayor or chief executive officer of any political subdivision of the Commonwealth. At issue in the instant case is the use of the word "or," and whether it can be construed to mean both the mayor and the chief executive officer may properly invoke the exemption. According to rules of statutory construction, in the absence of a statutory definition, a statutory term is considered to have its ordinary meaning, given the context in which it is used.¹ Generally, "or" is disjunctive, meaning that it presents two or more alternatives. Rules of statutory construction also state that whenever it is necessary to effectuate the obvious intention of the legislature, "or" may be construed to mean "and." However, this interpretation may only be applied where the context, other provisions of the statute, or former laws relating to the same subject indicates that such usage was the legislative intent.² Taking these rules together with the narrow construction required of FOIA exemptions, this provision must be interpreted to present an alternative as to who may exercise the exemption at a local level - either the mayor or the chief executive officer, but not both. The common usage of "or" is clear, and there is nothing in the statute or context that indicates that the legislature meant to include both the mayor and the chief executive officer of the same locality under the exemption.

Because only one of the two individuals specified in the exemption may properly exercise the exemption, this leads to the more difficult question as to which party may appropriately use it if a locality has both a mayor and a chief executive officer. In the context of local government, the city, county or town manager may commonly be thought of as the chief executive officer. In order to answer the question, one must look at the functions of the mayor and the manager as spelled out in a locality's charter. Different localities may adopt different governing structures, making it impossible to give an answer that would apply to all local governments. For example, a city may adopt a "strong mayor" form of government, where the mayor is elected independently of the city council and is afforded many duties and responsibilities separate from other council members for running the city's business. On the other hand, a locality could adopt a "council-manager" form of government, where the council appoints a manager whose job is to oversee the government's business, and report back to the council with updates and recommendations. In this instance, the council may still have a mayor, but the mayor's duties would likely be more parliamentarian than managerial.

Webster's Dictionary defines an executive as "one who holds a position of administrative or managerial responsibility in a business or other organization."³ However, the analysis cannot look only to the title given to each individual. A mayor might be referred to as a chief executive officer, and a manager may be referred to as an administrative officer in a charter, but this alone is not conclusive. Instead, it is essential to adopt a functional approach and examine the various duties and responsibilities assigned to each public official. The individual that would most properly exercise the exemption would be delegated duties such as ensuring that laws and ordinances are faithfully executed in the locality, advising the governing body as to the affairs of the locality, hiring and overseeing employees of the locality, and acting as a contact between the heads of various local departments and the local governing body. These functions most closely align with the definition of an executive as being the individual with administrative and managerial responsibilities for the locality.

In essence, one must closely examine which public official - either the mayor or another officer - performs the types of duties that would warrant the privilege of the exemption. If a mayor's duties are closely aligned with those of the other council members, then little is accomplished by protecting some of the mayor's records from public disclosure if the same type of records can be accessed from other members of council. On the other hand, if the mayor plays more of an operational role in the day-to-day governance of the locality, then it might be proper for the exemption to extend to the office of the mayor instead of the office of the manager. Generally, however, it appears that most localities have adopted a governing structure than gives a local manager the executive authority for local operations. Each locality must examine its own charter to determine who functionally acts as the executive, and who, therefore, may properly exercise the exemption.

Finally, it is important to note that a locality may not switch back and forth as to which public official may exercise the exemption. After determining who acts as the executive, the working papers exemption will stay with that public official unless the charter and duties of the local officials are changed.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. 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, 1986-1987 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., §46:01.

2. See South East Pub. Service Corp. v. Commonwealth, 165 VA 116, 181 S.E. 448 (1935), Industrial Dev. Auth. v. LaFrance Cleaners & Laundry Corp., 216 VA 277, 217 S.E. 2d 879 (1975), Patterson v. Commonwealth, 216 VA 306, 218 S.E. 2d 435 (1975).

3. Webster's Third New International Dictionary (1986).