VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-08-04

May 4, 2004

Mr. Jeff Sturgeon
Roanoke Times
Roanoke, 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 February 12, 2004.

Dear Mr. Sturgeon:

You have asked a question concerning the working papers exemption under the Virginia Freedom of Information Act (FOIA), and its application to certain documents held by the Roanoke Redevelopment and Housing Authority ("the Authority").

You indicate that the Authority is involved in a major redevelopment project that includes a high-tech business park for medical companies. By way of background, you indicate that the Authority has acquired private property for phase one of the project, and has begun demolition of existing buildings. You indicate that the Authority has entered into a written agreement with two nonprofit health organizations to purchase this property from the Authority and complete the development for phase one of the project. Before the land is conveyed to the health organizations, the general land use plan for the redevelopment project gives the Authority the right to review and approve the developers' preliminary and final plans and specifications to ensure that the plans conform with the Authority's redevelopment plan.

You requested, under FOIA, a copy of a master plan document prepared by an engineering company on behalf of one of the two health organizations, and submitted to the Authority for review. You indicate that the Authority's community development director acknowledged that the Authority received a copy of the master plan document to check the plan against redevelopment guidelines. However, the director withheld the document from disclosure and cited, in writing, the working papers exemption at subdivision A 6 of § 2.2-3705 of the Code of Virginia. You ask if the master plan document may be withheld pursuant to this exemption.

Subsection A of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth. The policy set forth in subsection B of § 2.2-3700 states that the provisions of FOIA are to be liberally construed, and that [a]ny exemption from public access to records or meetings shall be narrowly construed. Subdivision A 6 of § 2.2-3705 allows a public body to withhold [w]orking papers and correspondence of ...the mayor or chief executive officer of any political subdivision of the Commonwealth, and "working papers" are defined as those records prepared by or for an above-named public official for his personal or deliberative use. Section 36-4 allows counties and cities to create redevelopment and housing authorities to clear, plan and reconstruct areas in which unsafe or unsanitary housing conditions exist, and to redevelop blighted and deteriorated areas. The section declares that such authorities are political subdivisions of the Commonwealth. As such, the director of the Authority, as the chief executive officer, would be authorized to withhold his working papers from public disclosure. The question, in this case, is whether the master plan document was prepared for the director's personal or deliberative use, and thus may properly be withheld as a working paper.

This office previously interpreted the working papers exemption as it applied to budget estimates submitted by city departments to the city manager for preparation the annual budget.¹ In that instance, the budget estimates were not working papers of the city manager, even though the city manager was the chief executive officer of the locality. By statute, the departments were required to annually submit budget estimates to the governing body of the locality; in practice, the city council delegated authority to the city manager to receive and prepare the city's budget proposal. Construing the working papers exemption narrowly, as is required by law, the opinion concluded that the budget estimates were not prepared for the city manager's personal or deliberative use, because he was receiving the documents on behalf of the city council. In addition, the Attorney General of Virginia has 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.²

These opinions appear directly relevant to the situation that you present. The general land use plan that you cited in your correspondence requires the Authority to review and approve preliminary and final redevelopment plans prior to conveyance of the land. As such, it appears that the director received the master plan document in the ordinary course of business of administering the day-to-day operations of the Authority. The director may review and approve the master plan on behalf of the Authority if it has delegated this task to the director; nonetheless, the document was technically submitted to the Authority for its review, and not to the director for his personal or deliberative use. Therefore, the working papers exemption would not properly apply to the master plan document, because it was required to be submitted to the Authority and only came into the possession of the director in the course of conducting the day-to-day operations of the Authority.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹See Virginia Freedom of Information Advisory Council 32 (2001).
²1980-81 Op. Atty. Gen. Va. 395.