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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-01-16
July
11, 2016
Travis
Fain, President
Virginia Capitol Correspondents Association
Via Electronic Mail
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 and our conversation
of June 7, 2016.
Dear
Mr. Fain:
You
have asked for an advisory opinion "on the Governor's
decision to withhold the administration's list of
felons whose rights were restored under the working
papers exemption, as well as the Department of Elections'
assertion that the list must be withheld under [§]
24.2-404(B), which says voter registration records
aren't subject to FOIA." Based on your email
and our conversation, it is my understanding that
under the Virginia Freedom of Information Act (FOIA),
media representatives requested from the Office of
the Governor a list of felons whose rights were restored
earlier this year1 but the Office of the
Governor denied these requests citing the working
papers exclusion, subdivision 2 of § 2.2-3705.7.
It is my further understanding that requests for the
same list were made to the Department of Elections
(the Department) and also denied, pursuant to subsection
B of Code § 24.2-404. That subsection sets forth
certain duties of the Department concerning voter
registration and states that FOIA "shall not
apply to records about individuals maintained in this
system." As further background, you indicated
that the list was shared by the Office of the Governor
with the Department to inform the Department which
felons are eligible to register to vote and to enable
the Department to carry out its duties in that regard.
You asked whether the denials of the requests for
the list by the Office of the Governor and the Department
were proper.2
The policy of FOIA stated in subsection B of §
2.2-3700 is to ensure "the people of the Commonwealth
ready access to public records in the custody of a
public body or its officers and employees." That
policy further states that "no record shall be
withheld or meeting closed to the public unless specifically
made exempt pursuant to this chapter or other specific
provision of law." This policy statement is implemented
as a procedure in subsection A of § 2.2-3704,
which provides that "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." The definition of "public
record" in § 2.2-3701 includes "all
writings and recordings that consist of letters, words
or numbers, or their equivalent ... however stored,
and regardless of physical form or characteristics,
prepared or owned by, or in the possession of a public
body or its officers, employees or agents in the transaction
of public business." Therefore a list of felons
who have had their voting rights restored by the Governor
would be a public record as defined, regardless of
whether it was used by the Governor in making the
determination to restore rights, or whether it was
used by the Department in carrying out its duties
involving voter registration. As a public record,
such a list would be subject to mandatory disclosure
under FOIA unless an exclusion or other specific provision
of law allows it to be withheld.
The working papers exclusion, subdivision 2 of §
2.2-3705.7, allows certain officials, including the
Office of the Governor, to withhold working papers
and correspondence. The term "Office of the Governor"
is defined in the same subdivision to mean "the
Governor; his chief of staff, counsel, director of
policy, Cabinet Secretaries, and Assistant to the
Governor for Intergovernmental Affairs and those individuals
to whom the Governor has delegated his authority pursuant
to § 2.2-104." Based on the facts presented,
it appears that the list was prepared by the Office
of the Governor. "Working papers" is defined
in the same subdivision to mean "those records
prepared by or for an above-named public official
for his personal or deliberative use." This definition
leads to the heart of your question, whether the list
is in fact a working paper prepared for the personal
or deliberative use of the Office of the Governor.
The working papers exclusion was given an extensive
analysis in an advisory opinion last year which concluded
that one should consider the following three factors
when analyzing the application of the working papers
exemption:
1.
The purpose for which the record was created;
2. The person for whom the record was created;
3. Whether the official who holds the exemption
has disclosed the record to others, and if so, whether
that disclosure was (i) necessary or desirable to
further the official's own deliberative process,
or (ii) dissemination beyond the personal or deliberative
use of the official who holds the exemption.3
Applying
that analysis to the facts you have presented, the
answers to the first two items are not entirely clear.
On one hand, it could be argued that the list of felons
was prepared for the Office of the Governor's personal
or deliberative use in deciding whether to restore
these felons' voting rights. If that is the case,
then such a list would be a working paper excluded
from mandatory disclosure as it was prepared by or
for the Office of the Governor for personal or deliberative
use. On the other hand, you have contended that this
was a blanket restoration of rights with no deliberation
involved, and the list was merely used to notify the
Department of those whose rights were restored so
the Department would be able to carry out its duties
regarding voter registration. If those are the correct
facts, then the list would not be a working paper
at all, as it would not have been prepared for the
Office of the Governor's personal or deliberative
use. Deciding which scenario is correct would require
a factual determination, and this office is not a
trier of fact. However, that determination is unnecessary
in this instance because the third factor is dispositive:
based on the facts you have presented, the Office
of the Governor has disseminated this list to the
Department for the Department's own use in carrying
out its duties regarding voter registration. Given
this third factor, even if the list was originally
a working paper prepared for the Office of the Governor's
personal or deliberative use, it has subsequently
been disseminated beyond that original personal or
deliberative use and therefore is no longer excluded
from mandatory disclosure as a working paper.4
Your second inquiry concerns subsection B of §
24.2-404, which provides as follows:
The
Department shall be authorized to provide for the
production, distribution, and receipt of information
and lists through the Virginia voter registration
system by any appropriate means including, but not
limited to, paper and electronic means. The Virginia
Freedom of Information Act (§ 2.2-3700 et seq.)
shall not apply to records about individuals maintained
in this system.
Note
that subsection B of § 2.2-3703 provides that
"Public access to voter registration and election
records shall be governed by the provisions of Title
24.2 and [FOIA]. The provisions of Title 24.2 shall
be controlling in the event of any conflict."
Additionally, as quoted above, the policy and procedural
sections of FOIA both state that public records must
be disclosed except as otherwise specified by law.
Subsection B of § 24.2-404 clearly is such a
provision, and in the event of any conflict with FOIA,
it would be controlling.5 Reading these
provisions together, it is clear that FOIA does not
apply to records about individuals maintained in the
Virginia voter registration system. Therefore if the
list in question is part of the voter registration
system, the Department correctly withheld it.
However, you stated that the list is not a list of
those who have actually registered to vote, and therefore
you contend that the list is not a part of the voter
registration system. The voter registration system
is defined in § 24.2-101 to mean "the automated
central record-keeping system for all voters registered
within the Commonwealth that is maintained as provided
in Article 2 (§ 24.2-404 et seq.) of Chapter
4." Note that § 24.2-409 on its face requires
the Criminal Central Records Exchange to transmit
lists of felony convictions to the Department, and
for the Department to "maintain a permanent record
of the information in the lists as part of the voter
registration system." Similarly, § 24.2-408
requires the State Registrar of Vital Records to provide
the Department with lists of decedents and directs
the Department to "maintain a permanent record
of the information in the lists as part of the voter
registration system." You have asserted that
the list at issue is not part of the voter registration
system because it only lists felons who are now eligible
to vote, not ones who have actually registered to
vote. However, as §§ 24.2-408 and 24.2-409
indicate, it appears that the voter registration system
also contains information about persons who are ineligible
to vote. Research did not reveal any specific provisions
addressing whether a list of felons whose voting rights
have been restored must be maintained as part of the
voter registration system. Therefore this issue presents
a question of fact: is the list in question part of
the voter registration system? It appears that the
Department asserts that it is, and given that the
voter registration system includes lists of felony
convictions as required under § 24.2-409, keeping
the list of felons whose rights are restored in the
same system seems plausible. However, as you appear
to contest this point as a matter of fact, we cannot
offer any definite opinion on this issue. As stated
previously, this office is not a trier of fact.
In summary, it appears that while the list may have
been a Governor's working paper when it was first
created, it would no longer be a working paper after
being disseminated to the Department for the Department's
use. At the same time, it appears that the Department
may keep the list as part of its voter registration
system, which if true, would mean that the list is
not subject to FOIA pursuant to subsection B of §
24.2-404.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1As
it has been widely reported, we take notice that the
Governor earlier this year restored the voting rights
of over 200,000 felons. Note that it is my understanding
that litigation is currently pending concerning the
Governor's authority to restore voting rights in this
fashion. The litigation policy of the FOIA Council is
not to opine on matters pending before a court. However,
it is also my understanding that the FOIA questions
you have presented are not at issue in the pending litigation,
and therefore it is not contrary to the FOIA Council's
litigation policy to address your questions in this
opinion.
2Note that when an advisory opinion concerns
a party other than the requester, it is the policy of
this office to inform that party that an opinion has
been requested as a courtesy. In contacting the Office
of the Governor we were informed that there is not a
specific list of felons whose rights have been restored,
but rather a process by which the voter registration
system database is updated. As indicated in the preface
to this and all advisory opinions issued by this office,
each opinion is based upon the facts presented by the
requester. Different facts may lead to different conclusions.
However, this office is not a trier of fact and cannot
resolve factual disputes. Therefore, for purposes of
this opinion, we consider the facts as presented and
presume that the list at issue does exist.
3Freedom of Information Advisory Opinion
02 (2015).
4However, note that as stated in n. 2, supra,
it appears there may be a further factual dispute as
to whether the list in question actually exists.
5Note that the statutory authority of the
FOIA Council under § 30-179 is limited to FOIA
matters, and we generally do not offer interpretations
of other laws. In this instance, the provisions of Title
24.2 under consideration are plain on their face without
further interpretation and we consider them only as
they interact with FOIA.
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