 |
VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
|
AO-8-01
January
31, 2001
Mr. Patrick Kershaw
Kents Store, VA
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 January 12, 2001.
Dear Mr. Kershaw:
You have asked whether
your rights have been violated under the Virginia Freedom
of Information Act (FOIA). You indicate that a county supervisor
publicly discussed the contents of a document that the county
claimed to be exempt from FOIA under the attorney-client privilege.
The document is related to a citizen lawsuit concerning the
county's recent decision to include development-friendly language
in its comprehensive plan and allow a power plant to build
in the county. One of the supervisors made a public statement
indicating that the document had a major effect on the public
hearings concerning the power plant. You ask if the public
discussion of the document would waive the attorney-client
privilege and open it to public access.
Section 2.1-342
of the Code of Virginia states that all public records are
open for inspection and copying except as specifically provided
by law. Subsection A. 7. of § 2.1-342.01 specifically exempts
[w]ritten advice of legal counsel to state, regional or
local public bodies or public officials and any other records
protected by the attorney-client privilege. The Attorney
General of Virginia has held that the attorney-client privilege
is one which belongs to a client and which allows the client
to refuse to disclose, and prevents an attorney from disclosing,
confidential communications between a client and that attorney.1
Assuming that the
document is properly subject to this exemption, it appears
that the county is the client and thus the holder of the privilege
in the scenario that you present. The supervisor, therefore,
has the discretion to decide how much or how little of the
privileged information will be made available to the public.
Generally, when
a public official chooses to discuss information contained
in a document subject to an exemption, that document does
not lose the protection of the exemption. The Attorney General
touched on this principle in an opinion addressing the working
paper exemption under FOIA. In that instance, a superintendent
of schools had in his possession charts, graphs and other
documents that were properly subject to the working papers
exemption. The superintendent used the documents to make a
presentation to the school board, but did not distribute the
actual documents . Despite this public discussion, the Attorney
General opined that the documents were still subject to the
working papers exemption, even after the presentation.2
While this case involved a different factual situation and
exemption than the situation that you have presented, the
conclusion is the same in your situation -- despite the fact
that the supervisor discussed the contents of an exempt document,
the document does not lose its status as protected by the
attorney-client privilege.
Peripherally, also
please note that subsection B of § 2.1-342 requires that requests
for public records identify the requested records with
reasonable specificity. You indicated in your inquiry
that you felt that the county had violated your rights and
privileges under FOIA in response to prior requests, because
you received different documents than others who had made
similar requests. Such a response might only be a violation
to the extent that both your requests and the other requests
mentioned used identical language in identifying the
records with reasonable specificity.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1 1988
Op. Atty. Gen. Va. 35.
2 1979-80 Op. Atty. Gen. Va. 378.
|