FOI Advisory Council Opinion AO-02-15
AO-02-15
March 27, 2015
Tonia Moxley
The Roanoke Times
Roanoke, VA
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 telephone conversations of January 29, 2015, and March 17, 2015.
Dear Ms. Moxley:
You have asked whether Virginia Polytechnic Institute and State University (Virginia Tech) properly denied your request for a consultant's report pursuant to the "working papers" exemption, subdivision 2 of § 2.2-3705.7. As background, you stated that Virginia Tech held a "town hall meeting" on campus in December, 2014, and that at the meeting faculty, staff and the media discussed the university's handling of sexual assault complaints. Notice of the meeting on Virginia Tech's online calendar was titled "Responding to reports of sexual assault: Virginia Tech's response" and read in part as follows:
BLACKSBURG, Va., Dec. 5, 2014 – Recent headlines have brought attention to the on-going problem of sexual violence on college campuses.
Virginia Tech is not immune to this issue and on Friday, Dec. 12, Senior Vice President and Provost Mark McNamee will host a town hall meeting from 11 a.m. to noon in Burruss Hall Auditorium to offer information about the university’s current approach to responding to reports of sexual violence.
Information regarding remote access is forthcoming and will be posted to Virginia Tech News.
* * *
Individuals from the Division of Student Affairs, the Women’s Center, the Virginia Tech Police Department, and Human Resources who are responsible for responding to reports will provide overview information and be available to answer questions.
Participation in the discussion is welcome.1
You wrote that the university's director of the Office of Equity and Access (the Office), which oversees compliance with federal civil rights laws, mentioned a consultant's report at that meeting in the context of best practices the Office was working on implementing. In your inquiry to this office, you described that report as "the consultant's report on the Title 9 and equity and access process at [Virginia Tech]." You wrote that you requested a copy of the report in January, 2015. That request was denied on the basis that the report was a working paper of the President of Virginia Tech. After contacting this office about prior advisory opinions concerning the working papers exemption, you objected to the denial, telling Virginia Tech you felt the exemption did not apply as it appeared that the President had shared the report with other staff outside of the President's office. Virginia Tech continued to deny your request, and stated that it was "okay if the President shares the document if he is trying to get information for his deliberative use." You ask whether Virginia Tech's invocation of this exemption was proper under these facts. The short answer is that the facts presented are insufficient to offer any definite answer to that question, but this opinion will analyze possible answers in the alternative. Further background information will be set forth as needed with the analysis below.
When analyzing FOIA matters the initial inquiries must always be whether the entity involved is a public body and, in situations involving records, whether the records at issue are public records, as those terms are defined in § 2.2-3701. The definition of public body specifically includes boards of visitors of public institutions of higher education, and therefore, Virginia Tech is a public body.2 The definition of public record includes all writings and recordings ... 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. Your description of the consultant's report at issue is necessarily brief, but it appears to be a record in the possession of Virginia Tech in the transaction of Virginia Tech's public business concerning "the Title 9 and equity and access process" at Virginia Tech, which would make it a public record subject to FOIA. In any event, it does not appear that Virginia Tech contests its status as a public body or the status of the consultant's report as a public record.
The policy of FOIA regarding access to public records stated in subsection B of § 2.2-3700 provides the following guidance:
The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked.
The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records ... shall be narrowly construed and no record shall be withheld ... unless specifically made exempt pursuant to [FOIA] or other specific provision of law.
The working papers exemption, subdivision 2 of § 2.2-3705.7, provides a discretionary exception from mandatory disclosure for the following records:
Working papers and correspondence of the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates and the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia. However, no record, which is otherwise open to inspection under this chapter, shall be deemed exempt by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. [Emphasis added.]
Additionally, this exemption defines the term working papers to mean those records prepared by or for an above-named public official for his personal or deliberative use. Giving these provisions a plain reading, it is clear that as the president of a public institution of higher education in Virginia, this exemption is available to the President of Virginia Tech. The question therefore is whether the consultant's report in this instance, which was mentioned by another Virginia Tech official at a publicly advertised meeting attended by faculty, staff, and the press, is in fact a working paper for the President's personal or deliberative use. Virginia Tech asserts that it is; however, based on the facts you have presented, the answer is not clear.
Prior opinions have applied the narrow construction rule quoted above in holding that records prepared for someone other than an official listed in the exemption are not working papers, even if they are shared with an official who may use the exemption.3 Prior opinions concerning the working papers exemption also have established that if a working paper has been disseminated beyond the personal or deliberative use of the official who may claim the exemption, then the exemption no longer applies.4 In examining whether a record has been disseminated, this office has opined that mere discussion of a working paper or its contents with outside parties would not constitute dissemination, but actual distribution of the record itself - including allowing outside parties to view the record - would constitute dissemination and prevent further application of the exemption.5 However, this office has also recognized that the working papers exemption exists to protect the deliberative process, and as such, allows an official to communicate with others within a zone of privacy without losing the protections of the exemption.6 Each of these concepts will be further examined below within the context of the facts you have presented.
Personal or deliberative use
When analyzing working papers the first question must be whether the record at issue meets the statutory definition as a record prepared by or for an above-named public official for his personal or deliberative use. In a prior opinion addressing the application of the working papers exemption to a consultant's report, the facts presented were that the report had been commissioned by a city council but delivered to the city manager.7 These facts led to the question of whether the report was in fact prepared for the city council, in which case the exemption would not apply, or for the city manager's personal or deliberative use, in which case the exemption would apply. Focusing on the personal or deliberative use language, that advised looking for a "value-added" approach in determining whether the executive merely received the document on behalf of the council, or whether it required his review, deliberation, or other subjective evaluation, and thus became part of his work product.8 The facts in that case were inconclusive on this issue. In a similar opinion regarding a superintendent of schools, the Attorney General opined as follows:
For the [working papers exemption] to be applicable, there must be some factor that specially relates an official record to the chief executive officer's requirements for the conduct of his office. Official records specially generated at the chief executive officer's request come within the exclusion. Official records routinely generated elsewhere pursuant to law do not acquire a special character merely because they come to be deposited in the superintendent's office in the ordinary course of business.9
Therefore we must consider first the purpose for which the records were created, keeping in mind that records intended for use by others do not become exempt working papers merely because they are received by an official to whom the exemption is available.
In this case, Virginia Tech has asserted that the consultant's report is a working paper for the President's personal or deliberative use. However, you stated that the director of Virginia Tech's Office at the town hall meeting "said the consultant's report detailed some best practices the Office was working on implementing." These statements appear to raise a factual question regarding the intended purpose of the report. If the report was in fact prepared for the President's personal or deliberative use, and required his review, deliberation, or other subjective evaluation, then yes, it would be a President's working paper (unless it was disseminated to outside parties beyond the zone of privacy for the President's deliberations, as will be discussed below). On the other hand, if the report was prepared for use by the Office, or the director of the Office, and was merely received by the President, then it would not meet the statutory definition and the working paper exemption would not apply. The mere fact that the director of the Office mentioned the report at a town hall meeting, by itself, does not answer this question. It is possible, for example, that the consultant's report was prepared for the President's own use and that he merely mentioned it to the director in the context of implementing best practices. On the other hand, hypothetically, if the consultant's report was prepared for the Office to advise on best practices, and had merely been shared with the President as a matter of routine, then the report would not be a working paper at all. The facts presented do not clearly indicate for whom and for what purpose the consultant's report was prepared. For purposes of continuing the analysis in this opinion, and absent any evidence to the contrary, it will be presumed that the consultant's report was prepared for the President's own personal or deliberative use.
Dissemination
The next step in the analysis is to question whether the report has been disseminated to such an extent that it is no longer a working paper for the President's personal or deliberative use. The prior opinion concerning a consultant's report observed that earlier opinions had found that a document loses its working papers status when disseminated by the chief executive officer, but had not defined "dissemination." Absent a statutory definition, rules of construction dictate using the ordinary meaning of a word, so the opinion relied on Webster's New Collegiate Dictionary (1977 Edition), which defines "to disseminate" as "to spread abroad as though sowing seed; to disperse throughout; or to spread widely." 10 A previous opinion of the Attorney General concerning a school superintendent's records used the term "distributed" rather than "disseminated," stating that once public "records are distributed by the division superintendent, the [working papers exemption] no longer applies."11 Relevant dictionary definitions of the term "distribute" are "to deliver or pass out: distributing handbills on the street" and "to spread or diffuse over an area."12 Regardless of which term is used, it is clear that the concept involved is that a record is widely made available to others.
While you indicated that the director mentioned the consultant's report at the town hall meeting, we must presume that copies were not provided to those attending the meeting. If that was the case - that copies had been given to all those in attendance at a public meeting - it would clearly be dissemination and no further analysis would be necessary. However, given the facts you described, it appears that the report was only mentioned by the director at the meeting. It is not apparent whether the director had seen or received a copy of the report, or merely had discussed it contents with the President. There is no evidence in these facts to indicate that the report was widely disseminated or distributed to others.
Zone of Privacy
The final consideration, closely tied to the concept of dissemination, is the fundamental nature of the exemption as an expression of deliberative privilege. This office has previously opined that the application of the working papers 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.13 That opinion balanced the chilling effect that would occur if all records in the deliberative process were open, which might make some hesitant to propose ideas that could later be publicly rejected, against the public's right to know how government conducts its business and why decisions were made. The opinion concluded that the working papers exemption was designed to provide an unfettered zone of privacy for the deliberative process.14 Following an analysis of legislative changes made in 1999, the opinion also observed that the focus of the exemption changed from who possessed the record under the pre-1999 language, to focus more on why the record was created, i.e. for an official's personal or deliberative use.15 Combining these concepts, this office opined that 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.16 Note that in defining working papers, the current language refers only to whether the record was prepared by or for a named official for his personal or deliberative use. It does not refer to whether others may have seen the record, or set forth some arbitrary numerical limit on the number of others who may have seen it. However, wide dissemination of a record may still act as evidence that the record is not, in fact, for the personal or deliberative use of a named official.
Applying the zone of privacy concept to the facts you present, I must reiterate that it is unclear whether the President actually shared the consultant's report with anyone, although it appears he did at least discuss its contents with the director of the Office. Such a discussion would fall within the zone of privacy for the President's deliberations, even if the document was shared with the director, so long as the disclosure was necessary or desirable for furtherance of the President's own deliberative process. As stated previously by this office, the purpose of the working papers exemption is to encourage "decision-making creativity with an ongoing zone of privacy [which] ultimately benefits the public by encouraging the free-flow of ideas by government employees and officials."17 It would be contrary to this purpose were we to state that the President cannot deliberate with the aid of another employee of Virginia Tech. Hypothetically, even if the President had shared the document in order to get feedback to aid his own deliberations, such sharing would appear to fall within the zone of privacy. Sharing a document within the zone of privacy in order to further an official's own deliberations does not constitute wide dissemination of the sort that would cause the exemption not to apply.
In summary, it appears that in this instance there may be factual issues regarding the consultant's report, particularly in that it is not clear for whom and for what purpose it was prepared, nor to whom it may have been distributed. Such factual questions may only be resolved by a court, as this office is not a trier of fact. However, if it was in fact prepared for the President's own personal or deliberative use, and if it has not been disseminated or distributed beyond the zone of privacy allowed to protect that deliberative process, then it would remain exempt from disclosure as a working paper of the President.
General Guidance on the Working Papers Exemption
This office is aware that the application of the working papers exemption has generated a significant amount of public controversy and debate, as well as proposed legislative changes to the exemption itself.18 In addition to the specific considerations of the facts you have presented, this opinion offers the opportunity to provide more general guidance. In order to facilitate a clearer understanding of the exemption as it is currently written, consider the following 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.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. Notice found at http://www.vtnews.vt.edu/articles/2014/12/120514-provost-townhall.html (internal link to a December 10, 2014 live stream of the event omitted).
2. See Ch. 11 of Title 23 of the Code of Virginia (§§ 23-114 through 23-155.05).
3. See, e.g., 1980-1981 Op. Atty. Gen. Va. 395; Freedom of Information Advisory Opinions 08 (2004), 32 (2001), and 12 (2000).
4. See, e.g., 1982-1983 Op. Atty. Gen. Va. 724; Freedom of Information Advisory Opinions 17 (2004) and 12 (2000).
5. Freedom of Information Advisory Opinion 12 (2000).
6. Freedom of Information Advisory Opinion 17 (2004).
7. Freedom of Information Advisory Opinion 12 (2000).
8. Id.
9. 1980-1981 Op. Atty. Gen. Va. 395.
10. Freedom of Information Advisory Opinion 12 (2000)(internal cites omitted).
11. 1976-1977 Op. Atty. Gen. Va. 315.
12. The American Heritage Dictionary 410 (2d College ed. 1982).
13. Freedom of Information Advisory Opinion 17 (2004).
14. Id.
15. Id.
16. Id.
17. Id.
18. For example, Senate Bill 893 (2015), which did not pass, would have eliminated the working paper and correspondence record exemption for the president or other chief executive officer of any public institution of higher education in Virginia.
