June 11, 2001

Mr. Matthew Roy
The Virginian-Pilot
Suffolk, 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 phone conversation of May 1, 2001.

Dear Mr. Roy:

You have asked a question concerning access under the Virginia Freedom of Information Act (FOIA) to budget proposals submitted by various City of Suffolk departments for preparation of the city's 2001-2002 budget. You indicate that the city manager received the proposals and created a document that outlined for each department the current budget, the requested budget, and the city manager's recommended budget. This document was made available to the public. You requested copies of the actual written proposals submitted by five departments that were used by the city manager in creating the summary document. The city manager refused your request on the grounds that the written proposals were his working papers, and thus exempt from disclosure under FOIA.

Subsection A of § 2.1-342 of the Code of Virginia requires that all public records must be open for inspection and copying, [e]xcept as otherwise specifically provided by law. The exemption invoked by the city, found at subdivision A. 6. of § 2.1-342.01, exempts [w]orking papers and correspondence of ... the mayor or chief executive officer of any political subdivision of the Commonwealth. The exemption defines working papers as those records prepared by or for an above-named public official for his personal or deliberative use. In invoking this exemption, the city manager is arguing that as the chief executive officer of the city, the written budget proposals were prepared for his use in preparing a budget proposal to present to the city council.

Section 15.2-2503 requires that officers and heads of departments, offices, divisions, boards, commissions, and agencies of every locality shall, on or before the first day of April of each year, prepare and submit to the governing body an estimate of the amount of money needed during the ensuing fiscal year for his department, office, division, board, commission or agency. (Emphasis added) As a result, the written proposals were actually prepared for the city council, and not for the city manager. The fact that city council delegates the administration of receiving and preparing the city's budget proposal to the city manager does not change the nature of the documents. The Attorney General of Virginia 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.¹ As you can see from the language of the working papers exemption, it only applies to the chief executive officer of the locality, and only covers documents prepared for his use. The governing body itself does not have the authority to invoke the protection of the working papers exemption for documents prepared for its use. Thus, the written proposals required by statute to be prepared for the city council are not properly subject to the city manager's working papers exemption, and therefore are subject to the mandatory disclosure requirement of FOIA.

For your information, the Freedom of Information Advisory Council will be studying the working papers exemption as a result of the introduction of House Bill 2700 (Larrabee) during the 2001 Session. While this bill did not pass, it raises questions about the application of the working papers exemption. If you would like more information about the study, please do not hesitate to contact this office.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. 1980-81 Op. Atty. Gen. Va. 395.