FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Mr. Matthew Roy
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 phone
conversation of May 1, 2001.
Dear Mr. Roy:
You have asked a
question concerning access under the Virginia Freedom of Information
Act (FOIA) to budget proposals submitted by various City of
Suffolk departments for preparation of the city's 2001-2002
budget. You indicate that the city manager received the proposals
and created a document that outlined for each department the
current budget, the requested budget, and the city manager's
recommended budget. This document was made available to the
public. You requested copies of the actual written proposals
submitted by five departments that were used by the city manager
in creating the summary document. The city manager refused
your request on the grounds that the written proposals were
his working papers, and thus exempt from disclosure under
Subsection A of
§ 2.1-342 of the Code of Virginia requires that all public
records must be open for inspection and copying, [e]xcept
as otherwise specifically provided by law. The exemption
invoked by the city, found at subdivision A. 6. of § 2.1-342.01,
exempts [w]orking papers and correspondence of ... the
mayor or chief executive officer of any political subdivision
of the Commonwealth. The exemption defines working papers
as those records prepared by or for an above-named public
official for his personal or deliberative use. In invoking
this exemption, the city manager is arguing that as the chief
executive officer of the city, the written budget proposals
were prepared for his use in preparing a budget proposal to
present to the city council.
requires that officers and heads of departments, offices,
divisions, boards, commissions, and agencies of every locality
shall, on or before the first day of April of each year, prepare
and submit to the governing body an estimate of the
amount of money needed during the ensuing fiscal year for
his department, office, division, board, commission or agency.
(Emphasis added) As a result, the written proposals were actually
prepared for the city council, and not for the city manager.
The fact that city council delegates the administration of
receiving and preparing the city's budget proposal to the
city manager does not change the nature of the documents.
The Attorney General of Virginia opined that documents routinely
generated pursuant to law do not acquire a working paper character
merely because they come to be deposited in the chief executive's
office in the ordinary course of business.1 As
you can see from the language of the working papers exemption,
it only applies to the chief executive officer of the locality,
and only covers documents prepared for his use. The governing
body itself does not have the authority to invoke the protection
of the working papers exemption for documents prepared for
its use. Thus, the written proposals required by statute to
be prepared for the city council are not properly subject
to the city manager's working papers exemption, and therefore
are subject to the mandatory disclosure requirement of FOIA.
For your information,
the Freedom of Information Advisory Council will be studying
the working papers exemption as a result of the introduction
of House Bill 2700 (Larrabee) during the 2001 Session. While
this bill did not pass, it raises questions about the application
of the working papers exemption. If you would like more information
about the study, please do not hesitate to contact this office.
Thank you for contacting
this office. I hope that I have been of assistance.
Maria J.K. Everett
Op. Atty. Gen. Va. 395.