FOI Advisory Council Opinion AO-01-16
July 11, 2016
Travis Fain, President
Virginia Capitol Correspondents Association
Via Electronic Mail
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 electronic mail and our conversation of June 7, 2016.
Dear Mr. Fain:
You have asked for an advisory opinion "on the Governor's decision to withhold the administration's list of felons whose rights were restored under the working papers exemption, as well as the Department of Elections' assertion that the list must be withheld under [§] 24.2-404(B), which says voter registration records aren't subject to FOIA." Based on your email and our conversation, it is my understanding that under the Virginia Freedom of Information Act (FOIA), media representatives requested from the Office of the Governor a list of felons whose rights were restored earlier this year1 but the Office of the Governor denied these requests citing the working papers exclusion, subdivision 2 of § 2.2-3705.7. It is my further understanding that requests for the same list were made to the Department of Elections (the Department) and also denied, pursuant to subsection B of Code § 24.2-404. That subsection sets forth certain duties of the Department concerning voter registration and states that FOIA "shall not apply to records about individuals maintained in this system." As further background, you indicated that the list was shared by the Office of the Governor with the Department to inform the Department which felons are eligible to register to vote and to enable the Department to carry out its duties in that regard. You asked whether the denials of the requests for the list by the Office of the Governor and the Department were proper.2
The policy of FOIA stated in subsection B of § 2.2-3700 is to ensure "the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees." That policy further states that "no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law." This policy statement is implemented as a procedure in subsection A of § 2.2-3704, which provides that "Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records." The definition of "public record" in § 2.2-3701 includes "all writings and recordings that consist of letters, words or numbers, or their equivalent ... however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." Therefore a list of felons who have had their voting rights restored by the Governor would be a public record as defined, regardless of whether it was used by the Governor in making the determination to restore rights, or whether it was used by the Department in carrying out its duties involving voter registration. As a public record, such a list would be subject to mandatory disclosure under FOIA unless an exclusion or other specific provision of law allows it to be withheld.
The working papers exclusion, subdivision 2 of § 2.2-3705.7, allows certain officials, including the Office of the Governor, to withhold working papers and correspondence. The term "Office of the Governor" is defined in the same subdivision to mean "the Governor; his chief of staff, counsel, director of policy, Cabinet Secretaries, and Assistant to the Governor for Intergovernmental Affairs and those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104." Based on the facts presented, it appears that the list was prepared by the Office of the Governor. "Working papers" is defined in the same subdivision to mean "those records prepared by or for an above-named public official for his personal or deliberative use." This definition leads to the heart of your question, whether the list is in fact a working paper prepared for the personal or deliberative use of the Office of the Governor.
The working papers exclusion was given an extensive analysis in an advisory opinion last year which concluded that one should consider the following three factors when analyzing the application of the working papers exemption:
1. The purpose for which the record was created;
2. The person for whom the record was created;
3. Whether the official who holds the exemption has disclosed the record to others, and if so, whether that disclosure was (i) necessary or desirable to further the official's own deliberative process, or (ii) dissemination beyond the personal or deliberative use of the official who holds the exemption.3
Applying that analysis to the facts you have presented, the answers to the first two items are not entirely clear. On one hand, it could be argued that the list of felons was prepared for the Office of the Governor's personal or deliberative use in deciding whether to restore these felons' voting rights. If that is the case, then such a list would be a working paper excluded from mandatory disclosure as it was prepared by or for the Office of the Governor for personal or deliberative use. On the other hand, you have contended that this was a blanket restoration of rights with no deliberation involved, and the list was merely used to notify the Department of those whose rights were restored so the Department would be able to carry out its duties regarding voter registration. If those are the correct facts, then the list would not be a working paper at all, as it would not have been prepared for the Office of the Governor's personal or deliberative use. Deciding which scenario is correct would require a factual determination, and this office is not a trier of fact. However, that determination is unnecessary in this instance because the third factor is dispositive: based on the facts you have presented, the Office of the Governor has disseminated this list to the Department for the Department's own use in carrying out its duties regarding voter registration. Given this third factor, even if the list was originally a working paper prepared for the Office of the Governor's personal or deliberative use, it has subsequently been disseminated beyond that original personal or deliberative use and therefore is no longer excluded from mandatory disclosure as a working paper.4
Your second inquiry concerns subsection B of § 24.2-404, which provides as follows:
The Department shall be authorized to provide for the production, distribution, and receipt of information and lists through the Virginia voter registration system by any appropriate means including, but not limited to, paper and electronic means. The Virginia Freedom of Information Act (§ 2.2-3700 et seq.) shall not apply to records about individuals maintained in this system.
Note that subsection B of § 2.2-3703 provides that "Public access to voter registration and election records shall be governed by the provisions of Title 24.2 and [FOIA]. The provisions of Title 24.2 shall be controlling in the event of any conflict." Additionally, as quoted above, the policy and procedural sections of FOIA both state that public records must be disclosed except as otherwise specified by law. Subsection B of § 24.2-404 clearly is such a provision, and in the event of any conflict with FOIA, it would be controlling.5 Reading these provisions together, it is clear that FOIA does not apply to records about individuals maintained in the Virginia voter registration system. Therefore if the list in question is part of the voter registration system, the Department correctly withheld it.
However, you stated that the list is not a list of those who have actually registered to vote, and therefore you contend that the list is not a part of the voter registration system. The voter registration system is defined in § 24.2-101 to mean "the automated central record-keeping system for all voters registered within the Commonwealth that is maintained as provided in Article 2 (§ 24.2-404 et seq.) of Chapter 4." Note that § 24.2-409 on its face requires the Criminal Central Records Exchange to transmit lists of felony convictions to the Department, and for the Department to "maintain a permanent record of the information in the lists as part of the voter registration system." Similarly, § 24.2-408 requires the State Registrar of Vital Records to provide the Department with lists of decedents and directs the Department to "maintain a permanent record of the information in the lists as part of the voter registration system." You have asserted that the list at issue is not part of the voter registration system because it only lists felons who are now eligible to vote, not ones who have actually registered to vote. However, as §§ 24.2-408 and 24.2-409 indicate, it appears that the voter registration system also contains information about persons who are ineligible to vote. Research did not reveal any specific provisions addressing whether a list of felons whose voting rights have been restored must be maintained as part of the voter registration system. Therefore this issue presents a question of fact: is the list in question part of the voter registration system? It appears that the Department asserts that it is, and given that the voter registration system includes lists of felony convictions as required under § 24.2-409, keeping the list of felons whose rights are restored in the same system seems plausible. However, as you appear to contest this point as a matter of fact, we cannot offer any definite opinion on this issue. As stated previously, this office is not a trier of fact.
In summary, it appears that while the list may have been a Governor's working paper when it was first created, it would no longer be a working paper after being disseminated to the Department for the Department's use. At the same time, it appears that the Department may keep the list as part of its voter registration system, which if true, would mean that the list is not subject to FOIA pursuant to subsection B of § 24.2-404.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1. As it has been widely reported, we take notice that the Governor earlier this year restored the voting rights of over 200,000 felons. Note that it is my understanding that litigation is currently pending concerning the Governor's authority to restore voting rights in this fashion. The litigation policy of the FOIA Council is not to opine on matters pending before a court. However, it is also my understanding that the FOIA questions you have presented are not at issue in the pending litigation, and therefore it is not contrary to the FOIA Council's litigation policy to address your questions in this opinion.
2. Note that when an advisory opinion concerns a party other than the requester, it is the policy of this office to inform that party that an opinion has been requested as a courtesy. In contacting the Office of the Governor we were informed that there is not a specific list of felons whose rights have been restored, but rather a process by which the voter registration system database is updated. As indicated in the preface to this and all advisory opinions issued by this office, each opinion is based upon the facts presented by the requester. Different facts may lead to different conclusions. However, this office is not a trier of fact and cannot resolve factual disputes. Therefore, for purposes of this opinion, we consider the facts as presented and presume that the list at issue does exist.
3. Freedom of Information Advisory Opinion 02 (2015).
4. However, note that as stated in n. 2, supra, it appears there may be a further factual dispute as to whether the list in question actually exists.
5. Note that the statutory authority of the FOIA Council under § 30-179 is limited to FOIA matters, and we generally do not offer interpretations of other laws. In this instance, the provisions of Title 24.2 under consideration are plain on their face without further interpretation and we consider them only as they interact with FOIA.