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August 31 , 2004
Mr. Robert F. Nawrocki, CRM
Richmond, 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 letter of April 30, 2004.
Dear Mr. Nawrocki:
You have asked a question concerning the application of the
Governor's working papers exemption under the Virginia Freedom of
Information Act (FOIA). Specifically, you ask whether the exemption
expires for both the working papers prepared by the Governor as
well as working papers prepared for the Governor by other agencies
in the executive branch. You also ask if the working papers
exemption expires, is the expiration event-based or time-based.
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 of FOIA at subsection B of §
2.2-3700 states that the provisions of [FOIA] shall be liberally
construed to promote an increased awareness by all persons of
governmental activities...[a]ny exemption from public access to
records or meeting shall be narrowly construed. Your question
concerns the exemption set forth at subdivision 2 of §
2.2-3705.7, which allows working papers and correspondence of
the Officer of the Governor, Lieutenant Governor, Attorney General,
members of the General Assembly or the Division of Legislative
Services, the mayor or chief executive officer of a political
subdivision, or the president or chief executive officer of a
public institution of higher education to be withheld from
public disclosure. The exemption defines "working papers" to mean
those records prepared by or for an above-named public official
for his personal or deliberative use.
It has been previously well-established by both the Office of
the Attorney General of Virginia as well as this office that the
working paper exemption no longer applies after a document has been
disseminated beyond the office of the chief executive.1 Therefore, any document labeled as a working paper
would no longer be afforded the protection of the exemption once it
was shared with an outside party. The question remains, however, as
to whether any other event, aside from dissemination, triggers a
loss of the working papers exemption.
Application of the exemption inherently involves the
consideration of two competing policies -- the need for a zone of
privacy in the deliberative process to protect creativity and the
free-flow of ideas, and the policy of FOIA at subsection B of
§ 2.2-3700 that the affairs of government are not intended
to be conducted in an atmosphere of secrecy. Certainly one can
appreciate that when a particular course of action or public policy
is being explored by government, those involved in the
decision-making process should be encouraged to put all ideas and
perspectives on the table, even if some of those ideas might later
be discounted as unworkable or impractical. If the chief executive
were required to make all such ideas and suggestions public, those
who report to the chief executive might be hesitant to speak up to
brainstorm or make suggestions for fear of public scrutiny or
ridicule. This would result in a chilling effect on the unfettered
and free flow of ideas, which ultimately could lead to something
less than full and open discourse concerning a particular policy or
decision. Conversely, once a decision has been reached to pursue a
particular project or course of action, one could argue that it is
in the public interest to allow working papers to become public so
that the thought process that led to that particular decision might
be revealed. Arguably, the actual decision is only a part of the
decision-making process, and keeping that process hidden leaves the
public out of that process.
In resolving these competing policies by giving reasonable
effect to the intent of the law, I must conclude that the working
papers exemption was designed to provide an unfettered zone of
privacy for the deliberative process. The definition of a working
paper defines it as one prepared for personal or deliberative use.
Such a definition causes one to examine the intent of the creation
of the record. Even after a decision is made, the records
supporting the deliberation of the decision do not lose the quality
of having been created to aid in the deliberative process. The
language set forth in the exemption supports this conclusion. The
language indicates a policy determination that protecting
decision-making creativity with an ongoing zone of privacy
ultimately benefits the public by encouraging the free-flow of
ideas by government employees and officials. A different conclusion
would require clear language of intent from the General Assembly
that the exemption no longer applies after a certain number of
years after the creation of a record or that it expires once the
deliberative process ends. Such limitations can be seen in other
exemptions. For example, the exemption for records relating to the
negotiation and award of contracts at subdivision 12 of §
2.2-3705.1 states that the exemption no longer applies after the
public body has made a decision to award or not to award the
contract to which the records related.
This conclusion is further supported by an analysis of
legislative changes made to the working papers exemption by the
1999 Session of the General Assembly.2
Prior to 1999, the exemption applied to memoranda, working papers
and correspondence held by certain named officials. As can be seen
by this language, the exemption focused not on why the record was
created, but on who possessed the record. As a result, the Office
of the Attorney General of Virginia opined that the working paper
exemption no longer applied once a working paper was disseminated
to a third party.3 This is a logical
conclusion, given that once a document was disseminated to a third
party, it was held by someone other than the officials listed in
the exemption. Possession, then, was the key to the working papers
exemption, and the exemption expired when someone besides the named
official obtained the record. In 1999, however, further
clarification of the working papers exemption was made. As noted
above, the current language forces one to examine not only who
possesses the record, but also why the record was created. The
definition of a working paper includes records prepared by or for
one of the named officials' personal or deliberative use. The
apparent intent of the General Assembly in 1999 was to limit
further the working papers exemption by emphasizing the intent
behind the creation of the record. The characterization of why the
record was created never changes, despite what decisions may be
made based upon that record or who comes to posses a given record.
In light of the foregoing, therefore, it appears that if the record
was not prepared by or for a named official's personal or
deliberative use, or if the official to whom the privilege applies
elects to disseminate it or otherwise makes it public by
essentially releasing it from his protected zone of privacy, the
exemption can no longer be invoked.
In conclusion, the working papers exemption does not expire
unless the working papers are disseminated or otherwise made public
by the official to whom the exemption applies. Absent such a
release, a record created by or for one of the named officials for
his personal or deliberative use retains the characterization of a
working paper. To the extent that this opinion reaches a different
conclusion from previous opinions of this office, this opinion will
guide future policy and application.
Thank you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1See 1982-83
Op. Atty. Gen. Va. 724. See also Virginia
Freedom of Information Advisory Opinions 08 (2000), 12 (2000).
2See 1999 Acts of Assembly, cc. 703,
726.
3See 1982-83 Op.
Atty. Gen. Va. 724.
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