AG files amicus brief in support of broad working papers interpretation

The Virginia Office of the Attorney General filed an amicus brief in a FOIA case between a Fauquier County citizens group and the Town of Warrenton over the working papers exemption.¹ A central question in that case is, can both the mayor and the town manager use it, or just one or the other?

The AG's brief doesn't really get into that, but it does get into whether there are any limits on the "correspondence" part of that exemption. The AG says no, there aren’t. That's plain on the statute's face, the AG says, and to read it otherwise would, in the case of the governor, violate the separation-of-powers doctrine.

Also, all "correspondence" should be shielded by this exemption because high-level officials are so busy and delegate so much to their inner circle that protecting everything is “critical to the performance of their duties.”

Finally, there's an argument about the burden of proof. FOIA says that the government must prove by a preponderance of the evidence that an exemption they’ve used is justified. The AG’s brief says that the burden can be met during litigation by “produc[ing] every withheld document to the court for its in camera review, and then produc[ing] all of the sample records as ordered by the circuit court.”

Read the AG’s brief, the amicus brief filed by VCOG, and various other filings in the case on VCOG’s brief bank webpage.

1. See, § 2.2.3705.7(2).