ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT.

Settlement agreement entered into by public body compiled specifically for use in litigation excepted from mandatory disclosure requirement.

November 22, 1988

The Honorable I. Clinton Miller
Member, House of Delegates

87-88 35

You ask whether a confidential settlement agreement entered into by a public body is protected from disclosure to the public by any one of several exceptions to the Virginia Freedom of Information Act, §§ 2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"). The exceptions to which you specifically refer include §2.1-342(B)(5) (writings protected by the attorney-client privilege), §2.1-342(B)(6) (memoranda, working papers and records compiled specifically for use in litigation), and §2.1-342(B)(12) (memoranda, legal opinions, working papers and records recorded in or compiled exclusively for executive or closed meetings authorized by the Act).

I. Applicable Statutes

Except as otherwise specifically provided, §2.1-342(A) requires that all official records shall be open to inspection and copying by citizens. Section 2.1-341(b) defines the term "official records" as "all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body . . . in the transaction of public business." Section 2.1-342(B) specifies thirty-four exceptions from the mandatory disclosure requirement of §2.1-342(A), including those described above.

II. Settlement Agreement Not Protected by Attorney-Client Privilege

Section 2.1-342(B)(5) provides that "[w]ritten opinions of the city and county attorneys . . . and any other writing protected by the attorney-client privilege" are excepted from the mandatory disclosure requirement of §2.1-342(A).

The attorney-client privilege is a privilege 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. Black's Law Dictionary 118 (5th ed. 1979).

The Supreme Court of Virginia has held that "[c]onfidential communications between attorney and client made because of that relationship and concerning the subject matter of the attorney's employment are privileged from disclosure, even for the purpose of administering justice." Com. v. Edwards, 235 Va. 499, 508-09 370 S.E.2d 296, 301 (1988). The Court continued that "[w]hen a client communicates information to his attorney with the understanding that the information will be revealed to others, the disclosure to others effectively waives the privilege not only to the transmitted data but also as to the details underlying that information." Id. at 509-10, 370 S.E.2d at 301.

A settlement agreement is not a communication between a client and the client's attorney. Rather, a settlement agreement evidences an agreement to compromise and end a dispute between litigants. Based on the above, it is my opinion that a settlement agreement is not a writing protected by the attorney- client privilege. It is further my opinion, therefore, that the exception in §2.1-342(B)(5) does not apply to a settlement agreement entered into by a public body.

III. Settlement Agreement Constitutes Memoranda, Working Paper or Record Compiled Specifically for Use in Litigation

Section 2.1-342(B)(6) provides that "[m]emoranda, working papers and records compiled specifically for use in litigation" are excepted from the mandatory disclosure requirement of §2.1-342(A).

"Memorandum" is defined, in part, as "[a] brief written statement outlining the terms of an agreement or transaction." Black's Law Dictionary, supra, at 888. A settlement agreement clearly falls within this general definition of a "memorandum."

"Record" is defined, in part, as "[a] written account of some act, court proceeding, transaction or instrument, drawn up, under authority of law, by a proper officer, and designed to remain as a memorial or permanent evidence of the matters to which it relates." Black's Law Dictionary, supra, at 1144. A settlement agreement also clearly satisfies this general ially, enforce the settlement.

A prior Opinion of this Office concludes that it is not necessary that a document be compiled exclusively for use in litigation, as long as it is compiled specifically for use in litigation. See 1986-1987 Att'y Gen. Ann. Rep. 29-30. Although a settlement agreement is not compiled exclusively for use in litigation, it is my opinion that it is compiled specifically for use in litigation to resolve an existing dispute and to memorialize and evidence the terms of that resolution. It is further my opinion, therefore, that §2.1-342(B)(6) excepts a settlement agreement from the mandatory disclosure requirement of §2.1-342(A).¹

IV. Settlement Agreement Is Not Compiled Exclusively for Executive or Closed Meeting

Section 2.1-342(B)(12) provides, in part, that "[m]emoranda, legal opinions, working papers and records recorded in or compiled exclusively for executive or closed meetings" are excepted from the mandatory disclosure requirement of §2.1-342(A).

In this instance, a settlement agreement may be an appropriate subject of discussion during an executive session. Nevertheless, such an agreement is not compiled exclusively for discussion in an executive session. It is my opinion, therefore, that §2.1-342(B)(12) does not except a settlement agreement from the mandatory disclosure requirements of §2.1-342(A).

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Footnotes:

1. In a factually analogous case, the Supreme Court mpared to the Louisiana statute at issue in Dutton. The Louisiana statute applied solely to "writings . . . that reflect the mental impressions, conclusions, opinions or theories of an attorney . . . obtained or prepared in anticipation of litigation or in preparation for trial." Dutton, 395 So.2d at 685.