VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-01-04

January 6, 2004

Mr. Mike Stollenwerk
Alexandria, 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 November 3, 2003.

Dear Mr. Stollenwerk:

You have asked three questions regarding the Metropolitan Washington Airport Authority (MWAA) and the Virginia Freedom of Information Act (FOIA). You indicate that a requester made a FOIA request for "arrest reports, court case names, related summaries or reports regarding cases or incidents stemming from the arrest or detention or warning of any individuals suspected or charged with violating MWAR 8.4 since January 1, 1987." In response to the request, MWAA indicated that it was not subject to FOIA, and had its own policy governing access to records. MWAA indicated that its policy provides that the person requesting records must pay for expenses related to providing the records, similar to FOIA. MWAA estimated that to search for and redact automated records since 2001, it would cost $268. To hand-search records dating back to 1987, the costs were estimated to be $12,800. The requester also asked for documents containing legal analysis of § 15.2-915 of the Code of Virginia. MWAA responded that such documents were protected from disclosure by the attorney-client privilege.

Specifically, you ask if MWAA is subject to FOIA. If MWAA is subject to FOIA, you ask if it is appropriate for a public body to charge more than $12,000 to obtain public records. Finally, you ask if it is appropriate for a public body to claim that all documents prepared by legal counsel for the public body may be withheld pursuant to the attorney-client privilege.

MWAA was created by an interstate compact between the Commonwealth of Virginia and the District of Columbia (the District) to acquire by lease Washington Dulles International Airport and Ronald Regan Washington National Airport. The creation involved passage of legislation that included terms governing the operation of MWAA by Virginia and the District.¹ The United States Constitution, Article I, § 10, cl. 3 provides that "No state shall, without the Consent of the Congress...enter into any Agreement or Compact with another state." Congress may consent to such a compact by authorizing the joint state action in advance, or by giving expressed or implied approval to an agreement that the states have already joined.² In the case of MWAA, Congress approved the agreement between Virginia and the District after its creation with the Metropolitan Washington Airports Act of 1986 ("the Enabling Act").³ The Enabling Act consented to the lease of the two airports to MWAA, subject to certain conditions. Included in the agreement adopted by Virginia and the District, and subsequently approved by Congress, is language stating that [t]he courts of the Commonwealth of Virginia shall have original jurisdiction of all actions brought by or against the Authority, which courts shall in all cases apply the law of the Commonwealth of Virginia.⁴ (Emphasis added.)

FOIA governs access to records and meetings of all public bodies in the Commonwealth. Section 2.2-3701 defines a public body to include any legislative body, authority, board, bureau, commission, district or agency of the Commonwealth. At first glance, it would appear that MWAA, as an authority, would be a public body subject to FOIA. However, because MWAA is the creation of an interstate agreement between the Commonwealth and the District, further analysis is necessary to determine whether MWAA is indeed subject to Virginia's FOIA.

Courts have found that "once given, Congressional consent transforms an interstate compact into a law of the United States."⁵ When interpreting a compact, the first question that a court must address is what role the compact leaves to the federal courts in enforcing provisions and providing remedies.⁶ While it is generally accepted that a compact is a federal law, its terms and scope may dictate that state laws apply. In interpreting the provisions of a compact, no court -- federal or state -- may exercise jurisdiction or provide relief inconsistent with the express terms of the compact. A court may not fundamentally alter the structure of a compact entered into and agreed upon by the parties. And just as a court cannot subject the parties of a compact to remedy or relief inconsistent with the terms of the compact, one party to the compact may not unilaterally subject the other parties to its own laws without consent.

In applying the plain language of the compact adopted by Virginia and the District, FOIA would apply to MWAA. As noted above, the terms of the compact state that the courts of Virginia have original jurisdiction in all actions involving MWAA, and that the laws of the Commonwealth shall apply. This provision is not limited to certain types of actions -- torts, or actions to enforce a contract, for example -- but to any action brought by or against MWAA. This broad and general language would include actions brought to enforce FOIA. Furthermore, when Congress passed the Enabling Act, "it did so with the knowledge that the state statutes creating MWAA broadly conferred jurisdiction to Virginia courts over actions involving MWAA."⁷

The situation involving MWAA can be distinguished from a case that found that a state's freedom of information law does not apply to an interstate compact. Specifically, C.T. Hellmuth & Associates v. Washington Metropolitan Area Transit Authority (WMATA) addressed the issue of whether Maryland's Public Information Act, a freedom of information law, applied to WMATA.⁸ WMATA was created by an interstate compact between Maryland, Virginia, and the District. In asserting that Maryland's Public Information Act should apply to WMATA, the plaintiff argued that Virginia and the District had also adopted freedom of information laws, and the existence of similar legislation eliminated the possibility that imposing Maryland's law on WMATA would result in the unilateral imposition of one state's laws on the other signatory parties. The court rejected this argument, finding that while the freedom of information laws of the signatory states may be similar, they were not identical. Therefore, Maryland's law could not be unilaterally imposed upon the other signatories without their consent.

However, the WMATA compact had no language granting broad jurisdiction to the laws of Maryland, or to any of the other signatories. In fact, the only mention of jurisdiction is that "[t]he United States District Courts shall have original jurisdiction, concurrent with the courts of Maryland, Virginia, and the District of Columbia...Any such action initiated in a State or District of Columbia Court shall be removable to the appropriate United States District Court."⁹ There is no mention in this provision of choice or law for actions brought by or against WMATA. In Hellmuth, arbitrarily applying Maryland's law, without express consent in the compact, would result in a unilateral application of Maryland law. The signatories clearly did not agree to be subjected to Maryland's law in entering into the agreement. In the instant case involving MWAA, however, the signatories all consented to a broad application of Virginia law. Virginia enacted FOIA prior to the creation of MWAA, and the signatories all had knowledge of Virginia law, including FOIA, when they chose to impose it on MWAA.

In interpreting interstate compacts, the United States Supreme Court has recognized that interpretation of a compact is limited by the scope of its specific terms. Just because the terms of one compact lead to one conclusion does not mean that the same conclusion can be reached in interpreting another compact with different terms, even if the terms address similar issues.¹⁰ In this instance, the WMATA compact and the MWAA compact both relate to transportation issues and include two of the same signatories. However, the terms of the two compacts vary greatly, and an interpretation of the WMATA compact as it relates to freedom of information laws cannot apply to an interpretation of the MWAA compact when the compacts provide for differing jurisdiction. While imposing Maryland's Public Information Act on MWATA would have been an improper result because of the terms of that compact, the WMATA decision cannot be construed to be controlling every time the issue arises as to whether a state's freedom of information law applies to an authority created by interstate compact. Each compact in question needs to be examined in light of its specific jurisdictional and choice of law provisions. An examination of the terms of the MWAA compact leads one to conclude that FOIA does apply to MWAA, because of the broad jurisdictional authority granted to Virginia.

Because MWAA is subject to FOIA by the terms of the compact, your next question concerns the appropriateness of the costs cited by MWAA to respond to the request. Subsection F of § 2.2-3704 allows a public body to make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying or searching for the requested records...No public body shall impose any extraneous, intermediary or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body. This office has previously interpreted this subsection to allow a public body to charge for actual costs incidental to the request at hand. This would include charges such as the hourly rate of pay for the staff that researched and responded to your request or the cost of copies. This provision would not allow for charges such as the fringe benefits of the employees responding to the request, because these charges are not incidental to the FOIA request. In addition to requiring that only actual costs be charged to the requester, this subsection also requires that the costs be reasonable. However, whether a charge is reasonable is a question for the courts and not for this office.¹¹

Finally, you ask whether MWAA may claim that records are protected by attorney-client privilege just because they are prepared by legal counsel. Generally, all records in the possession of a public body are subject to inspection and disclosure unless specifically exempted by law. Subdivision A 7 of § 2.2-3705 provides an exemption for [w]ritten advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other records protected by the attorney-client privilege. This office has previously opined that the exemption mirrors the traditional common law doctrine of attorney-client privilege.¹² The privilege ensures that clients, whether public or private, can freely communicate with legal counsel. For the privilege to attach to a communication, the communication must relate to the lawyer's rendering of legal advice; it does not attach to a communication merely because it is made by a lawyer. As such, attorney-client privilege does not automatically cover all documents generated by a lawyer. In the question you have presented, however, the request was for documents containing certain legal analysis. The nature of the request seems to indicate that any responsive documents prepared by legal counsel would relate to the rendering of legal advice, which is what the attorney-client privilege exemption seeks to protect.

In conclusion, it appears that MWAA is subject to FOIA. The terms of the interstate compact creating MWAA provide that Virginia law applies to all actions brought by or against MWAA. This broad language would include the provisions of FOIA. As such, MWAA, like other public bodies, may recoup the actual costs associated with responding to a request. Whether such costs are also reasonable is a question for the courts to decide. Finally, in responding to a FOIA request, MWAA must produce records unless they are specifically exempt from disclosure. The exemption at subdivision A 7 of § 2.2-3705 would allow MWAA to withhold documents from its legal counsel that relate to the provision of legal advice.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹Va. Code §§ 5.1-152 et seq., D.C. Code §§ 9-901 et seq.
²Virginia v. Tennessee, 148 U.S. 503, 521 (1893).
³49 U.S.C.S. §§49101 et seq.
⁴Va. Code § 5.1-173(A), D.C. Code § 9-922(a).
⁵See Texas v. New Mexico, 462 U.S. 554, 564, 103 S. Ct. 2558, 2565 (1983).
⁶See Id. at 567-68, 2567.
⁷Washington-Dulles Transportation, Ltd. v. MWAA, 263 F. 3d 371, 374 (4th Cir. 2001). This case involved a dispute over the procurement procedures employed by MWAA. The terms of the federal enabling language requires the lease to provide that published competitive procedures be used when contracting for goods or services estimated to be more than $200,000. The Enabling Act also reserves federal jurisdiction for claims involving enforcement of the lease. At issue in the case was whether the terms of the competitive procedures, required to be established pursuant to the lease, fall under the limited federal jurisdiction reserved by Congress.
⁸414 F. Supp. 408 (Md. USDC 1976).
⁹1968 Va. Acts ch. 627 (as amended), Title III, § 81.
¹⁰See Texas, supra n. 5, at 565, 2565.
¹¹See Virginia Freedom of Information Advisory Opinions 21 (2001), 25 (2001), 49 (2001), 05 (2002).
¹²See Virginia Freedom of Information Advisory Opinion 25 (2003).