Working Papers/Memoranda/Correspondence Exemption

Any response by a public body to a FOIA request for public records shall comply with the provisions of subsection B of § 2.2-3704 of the Code of Virginia. The working papers exemption in subdivision 2 of § 2.2-3705.7 of the Code of Virginia was designed to provide a zone of privacy for the deliberative process of the designated officials. Any record labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party. If a record has already been disclosed publicly, then the working papers exemption does not apply and the records must be released, if requested. The exclusion for correspondence in subdivision 2 of § 2.2-3705.7 of the Code of Virginia applies to all written communications such as letters, emails and text messages sent or received by the designated officials. Pursuant to Lawrence v. Jenkins (Va. 1999), a technical violation of FOIA procedure does not change the fact that the records are exempt if a valid exemption applies. FOIA access rights are generally equal for all citizens with no individual having greater access rights to public records than another individual unless otherwise provided by law. FOIA provides that there is a fundamental duty for a public body to collaborate with a requester in production of the records requested. Any search for records made under FOIA must be carried out in a good faith effort by a public body's officers and employees.
 

The Court of Appeals rules that a city/town invoking the working papers and correspondence exemption (in particular, the correspondence part), cannot invoke it on behalf of both the city/town mayor AND the city/town manager (or other executive officer). The city/town must choose between the two. The court also says that the method by which Warrenton selected records for the judge to look at privately to determine if the exemption for working papers applied was inadequate. The trial judge should have required the town to prepare a federal-like Vaughn Index or to pick records randomly or representatively. Whichever method, the main this is that the government has to explain to the judge and other party why and how these records were chosen. Case is remanded for new sampling.

A Governor-elect's transition teams generally would not be public bodies subject to FOIA unless they are supported wholly or principally by public funds. Transition team records might be public records subject to FOIA (i) if the transition team is a public body because it is supported by public funds or (ii) if transition team records are possessed by another public body in the transaction of public business. Applying FOIA's narrow construction rule for exemptions, the working papers and correspondence exemption, subdivision 2 of § 2.2-3705.7, may only be used by those listed in the exemption itself. While the "Office of the Governor" is listed in the exemption, "Governor-elect" is not and therefore, a Governor-elect may not use the working papers and correspondence exemption.

Direct messages sent by school superintendent through Twitter's direct message platform are "correspondence" that can be withheld under the "working papers and correspondence" exemption of FOIA, 2.2-3705.7(2).

Discusses the use of the contract negotiations and economic development records exemptions. FOIA allows a records custodian to disclose exempt records in his discretion. Also discuss the working papers exemption as it applies to Cabinet Secretaries.

Records that have been prepared by or for the Office of the Governor for personal or deliberative use may be withheld as working papers. However, if those records are disseminated by the Office of the Governor to another agency for that agency's use in carrying out its statutory duties, then the records may not be withheld as working papers because they are no longer for personal or deliberative use of the Office of the Governor. Pursuant to subsection B of § 24.2-404, FOIA does not apply to records about individuals maintained in the voter registration system.