FOI Advisory Council Opinion AO-04-11

VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA

AO-04-11

September 15, 2011

Charles Landis
Onancock, 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 electronic mail of August 15 and 23, 2011.

Dear Mr. Landis:

You have inquired regarding the status of weekly memoranda sent by a town manager, who also serves as town attorney, to members of the town council. You indicated that the memoranda are prefaced with a header that states as follows:

This is an attorney/client communication, and as is subject to the attorney/client privilege. It is strictly confidential and is exempt from the disclosure requirements of the Freedom of Information Act.

Your email did not discuss the actual contents of the memoranda, but you indicated that you did not believe any of the contents met the requirements of the exemption. You stated that it was your understanding that the memoranda were sent as part of the routine administrative duties of the town manager position, not as advice from the town attorney.

The general policy of FOIA regarding public records is set forth in • 2.2-3700:

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....Any exemption from public access to records ... shall be narrowly construed and no record shall be withheld ... unless specifically made exempt pursuant to this chapter or other specific provision of law.

This policy is implemented in subsection A of • 2.2-3704: 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. In this instance, it appears that you made a request for the memoranda in question and that request was initially denied pursuant to the attorney-client records exemption. It appears that the procedural requirements of FOIA were met and that the public body cited a valid exemption as required, but you question the application of that exemption to the records you sought.

The attorney-client privilege exemption, subdivision 2 of • 2.2-3705.1, allows the public body to withhold in its discretion [w]ritten advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other records protected by the attorney-client privilege. Examining the common law attorney-client privilege, this office has previously observed that

six elements must be present in order to invoke the privilege: communications from a client; to the client's lawyer or lawyer's agent; relating to the lawyer's rendering of legal advice; made with the expectation of confidentiality; and not in furtherance of a future crime or tort; provided that the privilege has not been waived. If each of these elements is present, then the privilege is absolute and cannot be overcome with an argument that the information is critical in a particular case, or that disclosure of the information plays an important public purpose....A closely related factor in determining whether attorney-client privilege applies is whether the communication relates to legal advice. The fact that one communicates with a lawyer does not alone invoke the privilege. The attorney-client privilege only protects explicit and implicit requests from a client to a lawyer for legal advice and factual information from a client that the lawyer needs to form a legal opinion.1

More recently, the Supreme Court of Virginia has opined on the attorney-client privilege as follows:

As a general rule, confidential communications between an attorney and his or her client made in the course of that relationship and concerning the subject matter of the attorney's representation are privileged from disclosure. The objective of the attorney-client privilege is to encourage clients to communicate with attorneys freely, without fearing disclosure of those communications made in the course of representation, thereby enabling attorneys to provide informed and thorough legal advice. Nevertheless, the privilege is an exception to the general duty to disclose, is an obstacle to investigation of the truth, and should be strictly construed. 2

Given the facts as you have presented them, that the memoranda in question are routine weekly reports from the town manager to the town council that do not contain legal advice or other attorney-client communications, the attorney-client privilege exemption would not apply to such routine memoranda. However, given that in this instance the town manager and the town attorney are the same person, it is possible that the memoranda may in fact contain legal advice or other communications that are exempt under the attorney-client privilege, as well as routine matters. As one person holds both offices, it could happen that the contents of the memoranda reflect communications both as town manager and as town attorney. Should it be the case that the reports in question contain both exempt and non-exempt material, then the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record, as provided by subdivision B 2 of • 2.2-3704.

Based on subsequent communications with the town manager/attorney and with you, it is my understanding that a revised response to your request was being sent to you that would include redacted versions of the memoranda at issue. My understanding is that the public body had acknowledged that the initial denial of your request applied the attorney-client privilege exemption too broadly in withhold the reports in their entirety. As you requested that we proceed with this advisory opinion before you had received the revised response, I cannot offer any opinion as to that response and whether it now complies with FOIA. Additionally, note that without knowing the contents of the reports in full, it is not possible to offer an opinion on whether any redacted portions are in fact exempt per the attorney-client privilege. It is my understanding that the intent was to only redact those items from the memoranda that did in fact reflect matters subject to the attorney-client privilege. Such redaction would be a proper response when part of the record is exempt and the rest is not, as stated above.

As a final matter, I would note that it is a common practice for attorneys to use a header or footer in letters, memoranda, and electronic mail that makes note that the communication at issue may be subject to the attorney-client privilege or work-product doctrine.3 While such a header or footer may serve to put the reader on notice that the communication may be privileged or exempt from FOIA, in and of itself the header or footer does not render any record exempt. As always, what matters for FOIA purposes is whether there is a legal exemption and whether the contents of the record in question are in fact subject to that exemption. Whether a record is marked "confidential" or "privileged" or otherwise does not make it exempt. A record is only exempt if there is an exemption specifically provided by law. In considering the attorney-client privilege as described above, one must also look at who generated and received the record, whether it was for the purpose of providing or receiving legal counsel, and whether the privilege may have been waived by further disclosure to some third party. As the attorney-client privilege must be construed narrowly, both according to the FOIA policy stated in • 2.2-3700 and at common law as quoted above, if any of the elements of privilege are not satisfied then the exemption will not apply.

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

Sincerely,

Maria J.K. Everett
Executive Director

1. Freedom of Information Advisory Opinion 25 (2003).

2. Walton v. Mid-Atlantic Spine Specialists, 280 Va. 113, 122; 694 S.E.2d 545, 549 (Va. 2010)(internal citations and quotations omitted).

3. While not at issue in this opinion, note that just as the attorney-client privilege has been codified as a FOIA exemption, FOIA also recognizes the common law work-product doctrine, at • 2.2-3705.1(3): Legal memoranda and other work product compiled specifically for use in litigation or for use in an active administrative investigation concerning a matter that is properly the subject of a closed meeting under • 2.2-3711.

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