FOI Advisory Council Opinion AO-17-04

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.