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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-12-02
October
30, 2002
Elizabeth C. Waters
The Free Lance-Star
Fredericksburg,
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 email
of August 20, 2002.
Dear Ms. Waters:
You have asked a
question regarding the working papers exemption of the Virginia
Freedom of Information Act (FOIA). Specifically, you ask if
both the mayor and the city manager in the same locality may
claim the exemption. Further, you ask if both cannot use the
exemption, who may properly invoke it.
Pursuant to subsection
A of § 2.2-3704 of the Code of Virginia, all public records
must be open for inspection and copying, unless otherwise
specifically provided by law. The policy provision of FOIA
at § 2.2-3700 states that [t]he provisions of this chapter
shall be liberally construed to promote an increased awareness
of all persons of governmental activities and afford every
opportunity to citizens to witness the operations of government.
Any exemption from public access to records or meetings shall
be narrowly construed.
Subdivision A6 of
§ 2.2-3705 provides an exemption for the [w]orking papers
and correspondence of ... the mayor or chief executive officer
of any political subdivision of the Commonwealth. At issue
in the instant case is the use of the word "or," and whether
it can be construed to mean both the mayor and the chief executive
officer may properly invoke the exemption. According to rules
of statutory construction, in the absence of a statutory definition,
a statutory term is considered to have its ordinary meaning,
given the context in which it is used.1 Generally,
"or" is disjunctive, meaning that it presents two or more
alternatives. Rules of statutory construction also state that
whenever it is necessary to effectuate the obvious intention
of the legislature, "or" may be construed to mean "and." However,
this interpretation may only be applied where the context,
other provisions of the statute, or former laws relating to
the same subject indicates that such usage was the legislative
intent.2 Taking these rules together with the narrow
construction required of FOIA exemptions, this provision must
be interpreted to present an alternative as to who may exercise
the exemption at a local level - either the mayor or the chief
executive officer, but not both. The common usage of "or"
is clear, and there is nothing in the statute or context that
indicates that the legislature meant to include both the mayor
and the chief executive officer of the same locality under
the exemption.
Because only one
of the two individuals specified in the exemption may properly
exercise the exemption, this leads to the more difficult question
as to which party may appropriately use it if a locality has
both a mayor and a chief executive officer. In the context
of local government, the city, county or town manager may
commonly be thought of as the chief executive officer. In
order to answer the question, one must look at the functions
of the mayor and the manager as spelled out in a locality's
charter. Different localities may adopt different governing
structures, making it impossible to give an answer that would
apply to all local governments. For example, a city may adopt
a "strong mayor" form of government, where the mayor is elected
independently of the city council and is afforded many duties
and responsibilities separate from other council members for
running the city's business. On the other hand, a locality
could adopt a "council-manager" form of government, where
the council appoints a manager whose job is to oversee the
government's business, and report back to the council with
updates and recommendations. In this instance, the council
may still have a mayor, but the mayor's duties would likely
be more parliamentarian than managerial.
Webster's Dictionary
defines an executive as "one who holds a position of administrative
or managerial responsibility in a business or other organization."3
However, the analysis cannot look only to the title given
to each individual. A mayor might be referred to as a chief
executive officer, and a manager may be referred to as an
administrative officer in a charter, but this alone is not
conclusive. Instead, it is essential to adopt a functional
approach and examine the various duties and responsibilities
assigned to each public official. The individual that would
most properly exercise the exemption would be delegated duties
such as ensuring that laws and ordinances are faithfully executed
in the locality, advising the governing body as to the affairs
of the locality, hiring and overseeing employees of the locality,
and acting as a contact between the heads of various local
departments and the local governing body. These functions
most closely align with the definition of an executive as
being the individual with administrative and managerial responsibilities
for the locality.
In essence, one
must closely examine which public official - either the mayor
or another officer - performs the types of duties that would
warrant the privilege of the exemption. If a mayor's duties
are closely aligned with those of the other council members,
then little is accomplished by protecting some of the mayor's
records from public disclosure if the same type of records
can be accessed from other members of council. On the other
hand, if the mayor plays more of an operational role in the
day-to-day governance of the locality, then it might be proper
for the exemption to extend to the office of the mayor instead
of the office of the manager. Generally, however, it appears
that most localities have adopted a governing structure than
gives a local manager the executive authority for local operations.
Each locality must examine its own charter to determine who
functionally acts as the executive, and who, therefore, may
properly exercise the exemption.
Finally, it is important
to note that a locality may not switch back and forth as to
which public official may exercise the exemption. After determining
who acts as the executive, the working papers exemption will
stay with that public official unless the charter and duties
of the local officials are changed.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1
Commonwealth Department of Taxation v. Orange-Madison Coop.
Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op.
Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987
Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes
and Statutory Construction, 6th ed., §46:01.
2 See
South East Pub. Service Corp. v. Commonwealth, 165 VA 116,
181 S.E. 448 (1935), Industrial Dev. Auth. v. LaFrance Cleaners
& Laundry Corp., 216 VA 277, 217 S.E. 2d 879 (1975), Patterson
v. Commonwealth, 216 VA 306, 218 S.E. 2d 435 (1975).
3 Webster's
Third New International Dictionary (1986).
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