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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-04-11
September
15, 2011
Charles
Landis
Onancock, 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 electronic
mail of August 15 and 23, 2011.
Dear
Mr. Landis:
You
have inquired regarding the status of weekly memoranda sent
by a town manager, who also serves as town attorney, to members
of the town council. You indicated that the memoranda are
prefaced with a header that states as follows:
This
is an attorney/client communication, and as is subject
to the attorney/client privilege. It is strictly confidential
and is exempt from the disclosure requirements of the
Freedom of Information Act.
Your
email did not discuss the actual contents of the memoranda,
but you indicated that you did not believe any of the contents
met the requirements of the exemption. You stated that it
was your understanding that the memoranda were sent as part
of the routine administrative duties of the town manager position,
not as advice from the town attorney.
The general policy of FOIA regarding public records is
set forth in § 2.2-3700:
Unless
a public body or its officers or employees specifically
elect to exercise an exemption provided by this chapter
or any other statute, ... all public records shall be
available for inspection and copying upon request. All
public records ... shall be presumed open, unless an exemption
is properly invoked....Any exemption from public access
to records ... shall be narrowly construed and no record
shall be withheld ... unless specifically made exempt
pursuant to this chapter or other specific provision of
law.
This
policy is implemented in subsection A of § 2.2-3704:
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. In this instance,
it appears that you made a request for the memoranda in question
and that request was initially denied pursuant to the attorney-client
records exemption. It appears that the procedural requirements
of FOIA were met and that the public body cited a valid exemption
as required, but you question the application of that exemption
to the records you sought.
The
attorney-client privilege exemption, subdivision 2 of §
2.2-3705.1, allows the public body to withhold in its discretion
[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. Examining the common law attorney-client privilege,
this office has previously observed that
six
elements must be present in order to invoke the privilege:
communications from a client; to the client's lawyer or
lawyer's agent; relating to the lawyer's rendering of
legal advice; made with the expectation of confidentiality;
and not in furtherance of a future crime or tort; provided
that the privilege has not been waived. If each of these
elements is present, then the privilege is absolute and
cannot be overcome with an argument that the information
is critical in a particular case, or that disclosure of
the information plays an important public purpose....A
closely related factor in determining whether attorney-client
privilege applies is whether the communication relates
to legal advice. The fact that one communicates with a
lawyer does not alone invoke the privilege. The attorney-client
privilege only protects explicit and implicit requests
from a client to a lawyer for legal advice and factual
information from a client that the lawyer needs to form
a legal opinion.1
More
recently, the Supreme Court of Virginia has opined on the
attorney-client privilege as follows:
As
a general rule, confidential communications between an
attorney and his or her client made in the course of that
relationship and concerning the subject matter of the
attorney's representation are privileged from disclosure.
The objective of the attorney-client privilege is to encourage
clients to communicate with attorneys freely, without
fearing disclosure of those communications made in the
course of representation, thereby enabling attorneys to
provide informed and thorough legal advice. Nevertheless,
the privilege is an exception to the general duty to disclose,
is an obstacle to investigation of the truth, and should
be strictly construed. 2
Given
the facts as you have presented them, that the memoranda in
question are routine weekly reports from the town manager
to the town council that do not contain legal advice or other
attorney-client communications, the attorney-client privilege
exemption would not apply to such routine memoranda. However,
given that in this instance the town manager and the town
attorney are the same person, it is possible that the memoranda
may in fact contain legal advice or other communications that
are exempt under the attorney-client privilege, as well as
routine matters. As one person holds both offices, it could
happen that the contents of the memoranda reflect communications
both as town manager and as town attorney. Should it be the
case that the reports in question contain both exempt and
non-exempt material, then the public body may delete or
excise only that portion of the record to which an exemption
applies and shall release the remainder of the record,
as provided by subdivision B 2 of § 2.2-3704.
Based
on subsequent communications with the town manager/attorney
and with you, it is my understanding that a revised response
to your request was being sent to you that would include redacted
versions of the memoranda at issue. My understanding is that
the public body had acknowledged that the initial denial of
your request applied the attorney-client privilege exemption
too broadly in withhold the reports in their entirety. As
you requested that we proceed with this advisory opinion before
you had received the revised response, I cannot offer any
opinion as to that response and whether it now complies with
FOIA. Additionally, note that without knowing the contents
of the reports in full, it is not possible to offer an opinion
on whether any redacted portions are in fact exempt per the
attorney-client privilege. It is my understanding that the
intent was to only redact those items from the memoranda that
did in fact reflect matters subject to the attorney-client
privilege. Such redaction would be a proper response when
part of the record is exempt and the rest is not, as stated
above.
As a
final matter, I would note that it is a common practice for
attorneys to use a header or footer in letters, memoranda,
and electronic mail that makes note that the communication
at issue may be subject to the attorney-client privilege or
work-product doctrine.3 While such a header or
footer may serve to put the reader on notice that the communication
may be privileged or exempt from FOIA, in and of itself
the header or footer does not render any record exempt. As
always, what matters for FOIA purposes is whether there is
a legal exemption and whether the contents of the record in
question are in fact subject to that exemption. Whether a
record is marked "confidential" or "privileged"
or otherwise does not make it exempt. A record is only exempt
if there is an exemption specifically provided by law. In
considering the attorney-client privilege as described above,
one must also look at who generated and received the record,
whether it was for the purpose of providing or receiving legal
counsel, and whether the privilege may have been waived by
further disclosure to some third party. As the attorney-client
privilege must be construed narrowly, both according to the
FOIA policy stated in § 2.2-3700 and at common law as
quoted above, if any of the elements of privilege are not
satisfied then the exemption will not apply.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Freedom
of Information Advisory Opinion 25 (2003).
2Walton v. Mid-Atlantic Spine Specialists,
280 Va. 113, 122; 694 S.E.2d 545, 549 (Va. 2010)(internal
citations and quotations omitted).
3While not at issue in this opinion, note that
just as the attorney-client privilege has been codified as
a FOIA exemption, FOIA also recognizes the common law work-product
doctrine, at § 2.2-3705.1(3): Legal memoranda and
other work product compiled specifically for use in litigation
or for use in an active administrative investigation concerning
a matter that is properly the subject of a closed meeting
under § 2.2-3711.
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