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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-02-15
March
27, 2015
Tonia
Moxley
The Roanoke Times
Roanoke, 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 electronic mail and our telephone
conversations of January 29, 2015, and March 17, 2015.
Dear
Ms. Moxley:
You have asked whether Virginia Polytechnic Institute
and State University (Virginia Tech) properly denied
your request for a consultant's report pursuant to
the "working papers" exemption, subdivision
2 of § 2.2-3705.7. As background, you stated
that Virginia Tech held a "town hall meeting"
on campus in December, 2014, and that at the meeting
faculty, staff and the media discussed the university's
handling of sexual assault complaints. Notice of the
meeting on Virginia Tech's online calendar was titled
"Responding to reports of sexual assault: Virginia
Tech's response" and read in part as follows:
BLACKSBURG,
Va., Dec. 5, 2014 – Recent headlines have brought
attention to the on-going problem of sexual violence
on college campuses.
Virginia Tech is not immune to this issue and on
Friday, Dec. 12, Senior Vice President and Provost
Mark McNamee will host a town hall meeting from
11 a.m. to noon in Burruss Hall Auditorium to offer
information about the university’s current approach
to responding to reports of sexual violence.
Information
regarding remote access is forthcoming and will
be posted to Virginia Tech News.
*
* *
Individuals
from the Division of Student Affairs, the Women’s
Center, the Virginia Tech Police Department, and
Human Resources who are responsible for responding
to reports will provide overview information and
be available to answer questions.
Participation
in the discussion is welcome.1
You
wrote that the university's director of the Office
of Equity and Access (the Office), which oversees
compliance with federal civil rights laws, mentioned
a consultant's report at that meeting in the context
of best practices the Office was working on implementing.
In your inquiry to this office, you described that
report as "the consultant's report on the Title
9 and equity and access process at [Virginia Tech]."
You wrote that you requested a copy of the report
in January, 2015. That request was denied on the basis
that the report was a working paper of the President
of Virginia Tech. After contacting this office about
prior advisory opinions concerning the working papers
exemption, you objected to the denial, telling Virginia
Tech you felt the exemption did not apply as it appeared
that the President had shared the report with other
staff outside of the President's office. Virginia
Tech continued to deny your request, and stated that
it was "okay if the President shares the document
if he is trying to get information for his deliberative
use." You ask whether Virginia Tech's invocation
of this exemption was proper under these facts. The
short answer is that the facts presented are insufficient
to offer any definite answer to that question, but
this opinion will analyze possible answers in the
alternative. Further background information will be
set forth as needed with the analysis below.
When
analyzing FOIA matters the initial inquiries must
always be whether the entity involved is a public
body and, in situations involving records, whether
the records at issue are public records,
as those terms are defined in § 2.2-3701. The
definition of public body specifically includes
boards of visitors of public institutions of higher
education, and therefore, Virginia Tech is a
public body.2 The definition of
public record includes all writings and
recordings ... 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. Your description of the consultant's
report at issue is necessarily brief, but it appears
to be a record in the possession of Virginia Tech
in the transaction of Virginia Tech's public business
concerning "the Title 9 and equity and access
process" at Virginia Tech, which would make it
a public record subject to FOIA. In any event,
it does not appear that Virginia Tech contests its
status as a public body or the status of
the consultant's report as a public record.
The policy of FOIA regarding access to public records
stated in subsection B of § 2.2-3700 provides
the following guidance:
The
affairs of government are not intended to be conducted
in an atmosphere of secrecy since at all times the
public is to be the beneficiary of any action taken
at any level of government. 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.
The
provisions of this chapter shall be liberally construed
to promote an increased awareness by all persons
of governmental activities and afford every opportunity
to citizens to witness the operations of government.
Any exemption from public access to records ...
shall be narrowly construed and no record shall
be withheld ... unless specifically made exempt
pursuant to [FOIA] or other specific provision of
law.
The
working papers exemption, subdivision 2 of §
2.2-3705.7, provides a discretionary exception from
mandatory disclosure for the following records:
Working
papers and correspondence of the Office of the Governor;
Lieutenant Governor; the Attorney General; the members
of the General Assembly, the Division of Legislative
Services, or the Clerks of the House of Delegates
and the Senate of Virginia; the mayor or chief executive
officer of any political subdivision of the Commonwealth;
or the president or other chief executive
officer of any public institution of higher education
in Virginia. However, no record, which
is otherwise open to inspection under this chapter,
shall be deemed exempt by virtue of the fact that
it has been attached to or incorporated within any
working paper or correspondence. [Emphasis
added.]
Additionally,
this exemption defines the term working papers
to mean those records prepared by or for an above-named
public official for his personal or deliberative use.
Giving these provisions a plain reading, it is clear
that as the president of a public institution of higher
education in Virginia, this exemption is available
to the President of Virginia Tech. The question therefore
is whether the consultant's report in this instance,
which was mentioned by another Virginia Tech official
at a publicly advertised meeting attended by faculty,
staff, and the press, is in fact a working paper for
the President's personal or deliberative use. Virginia
Tech asserts that it is; however, based on the facts
you have presented, the answer is not clear.
Prior opinions have applied the narrow construction
rule quoted above in holding that records prepared
for someone other than an official listed in the exemption
are not working papers, even if they are
shared with an official who may use the exemption.3
Prior opinions concerning the working papers exemption
also have established that if a working paper has
been disseminated beyond the personal or deliberative
use of the official who may claim the exemption, then
the exemption no longer applies.4 In examining
whether a record has been disseminated, this office
has opined that mere discussion of a working paper
or its contents with outside parties would not constitute
dissemination, but actual distribution of the record
itself - including allowing outside parties to view
the record - would constitute dissemination and prevent
further application of the exemption.5
However, this office has also recognized that the
working papers exemption exists to protect the deliberative
process, and as such, allows an official to communicate
with others within a zone of privacy without losing
the protections of the exemption.6 Each
of these concepts will be further examined below within
the context of the facts you have presented.
Personal
or deliberative use
When analyzing working papers the first question must
be whether the record at issue meets the statutory
definition as a record prepared by or for an above-named
public official for his personal or deliberative use.
In a prior opinion addressing the application of the
working papers exemption to a consultant's report,
the facts presented were that the report had been
commissioned by a city council but delivered to the
city manager.7 These facts led to the question
of whether the report was in fact prepared for the
city council, in which case the exemption would not
apply, or for the city manager's personal or deliberative
use, in which case the exemption would apply. Focusing
on the personal or deliberative use language,
that advised looking for a "value-added"
approach in determining whether the executive merely
received the document on behalf of the council, or
whether it required his review, deliberation, or other
subjective evaluation, and thus became part of his
work product.8 The facts in that case were
inconclusive on this issue. In a similar opinion regarding
a superintendent of schools, the Attorney General
opined as follows:
For
the [working papers exemption] to be applicable,
there must be some factor that specially relates
an official record to the chief executive officer's
requirements for the conduct of his office. Official
records specially generated at the chief executive
officer's request come within the exclusion. Official
records routinely generated elsewhere pursuant to
law do not acquire a special character merely because
they come to be deposited in the superintendent's
office in the ordinary course of business.9
Therefore
we must consider first the purpose for which the records
were created, keeping in mind that records intended
for use by others do not become exempt working papers
merely because they are received by an official to
whom the exemption is available.
In this case, Virginia Tech has asserted that the
consultant's report is a working paper for the President's
personal or deliberative use. However, you stated
that the director of Virginia Tech's Office at the
town hall meeting "said the consultant's report
detailed some best practices the Office was working
on implementing." These statements appear to
raise a factual question regarding the intended purpose
of the report. If the report was in fact prepared
for the President's personal or deliberative use,
and required his review, deliberation, or other subjective
evaluation, then yes, it would be a President's working
paper (unless it was disseminated to outside parties
beyond the zone of privacy for the President's deliberations,
as will be discussed below). On the other hand, if
the report was prepared for use by the Office, or
the director of the Office, and was merely received
by the President, then it would not meet the statutory
definition and the working paper exemption would not
apply. The mere fact that the director of the Office
mentioned the report at a town hall meeting, by itself,
does not answer this question. It is possible, for
example, that the consultant's report was prepared
for the President's own use and that he merely mentioned
it to the director in the context of implementing
best practices. On the other hand, hypothetically,
if the consultant's report was prepared for the Office
to advise on best practices, and had merely been shared
with the President as a matter of routine, then the
report would not be a working paper at all. The facts
presented do not clearly indicate for whom and for
what purpose the consultant's report was prepared.
For purposes of continuing the analysis in this opinion,
and absent any evidence to the contrary, it will be
presumed that the consultant's report was prepared
for the President's own personal or deliberative use.
Dissemination
The next step in the analysis is to question whether
the report has been disseminated to such an extent
that it is no longer a working paper for the President's
personal or deliberative use. The prior opinion concerning
a consultant's report observed that earlier opinions
had found that a document loses its working papers
status when disseminated by the chief executive officer,
but had not defined "dissemination." Absent
a statutory definition, rules of construction dictate
using the ordinary meaning of a word, so the opinion
relied on Webster's New Collegiate Dictionary (1977
Edition), which defines "to disseminate"
as "to spread abroad as though sowing seed; to
disperse throughout; or to spread widely." 10A
previous opinion of the Attorney General concerning
a school superintendent's records used the term "distributed"
rather than "disseminated," stating that
once public "records are distributed by the division
superintendent, the [working papers exemption] no
longer applies."11 Relevant dictionary
definitions of the term "distribute" are
"to deliver or pass out: distributing handbills
on the street" and "to spread or diffuse
over an area."12 Regardless of which
term is used, it is clear that the concept involved
is that a record is widely made available to others.
While you indicated that the director mentioned the
consultant's report at the town hall meeting, we must
presume that copies were not provided to those attending
the meeting. If that was the case - that copies had
been given to all those in attendance at a public
meeting - it would clearly be dissemination and no
further analysis would be necessary. However, given
the facts you described, it appears that the report
was only mentioned by the director at the meeting.
It is not apparent whether the director had seen or
received a copy of the report, or merely had discussed
it contents with the President. There is no evidence
in these facts to indicate that the report was widely
disseminated or distributed to others.
Zone
of Privacy
The final consideration, closely tied to the concept
of dissemination, is the fundamental nature of the
exemption as an expression of deliberative privilege.
This office has previously opined that the application
of the working papers exemption inherently involves
the consideration of two competing policies -- the
need for a zone of privacy in the deliberative process
to protect creativity and the free-flow of ideas,
and the policy of FOIA at subsection B of § 2.2-3700
that the affairs of government are not intended
to be conducted in an atmosphere of secrecy.13
That opinion balanced the chilling effect that would
occur if all records in the deliberative process were
open, which might make some hesitant to propose ideas
that could later be publicly rejected, against the
public's right to know how government conducts its
business and why decisions were made. The opinion
concluded that the working papers exemption was designed
to provide an unfettered zone of privacy for the deliberative
process.14 Following an analysis of legislative
changes made in 1999, the opinion also observed that
the focus of the exemption changed from who possessed
the record under the pre-1999 language, to focus more
on why the record was created, i.e. for an official's
personal or deliberative use.15 Combining
these concepts, this office opined that it appears
that if the record was not prepared by or for a named
official's personal or deliberative use, or if the
official to whom the privilege applies elects to disseminate
it or otherwise makes it public by essentially releasing
it from his protected zone of privacy, the exemption
can no longer be invoked.16 Note that in
defining working papers, the current language
refers only to whether the record was prepared by
or for a named official for his personal or deliberative
use. It does not refer to whether others may have
seen the record, or set forth some arbitrary numerical
limit on the number of others who may have seen it.
However, wide dissemination of a record may still
act as evidence that the record is not, in fact, for
the personal or deliberative use of a named official.
Applying the zone of privacy concept to the facts
you present, I must reiterate that it is unclear whether
the President actually shared the consultant's report
with anyone, although it appears he did at least discuss
its contents with the director of the Office. Such
a discussion would fall within the zone of privacy
for the President's deliberations, even if the document
was shared with the director, so long as the disclosure
was necessary or desirable for furtherance of the
President's own deliberative process. As stated previously
by this office, the purpose of the working papers
exemption is to encourage "decision-making creativity
with an ongoing zone of privacy [which] ultimately
benefits the public by encouraging the free-flow of
ideas by government employees and officials."17
It would be contrary to this purpose were we to state
that the President cannot deliberate with the aid
of another employee of Virginia Tech. Hypothetically,
even if the President had shared the document in order
to get feedback to aid his own deliberations, such
sharing would appear to fall within the zone of privacy.
Sharing a document within the zone of privacy in order
to further an official's own deliberations does not
constitute wide dissemination of the sort that would
cause the exemption not to apply.
In summary, it appears that in this instance there
may be factual issues regarding the consultant's report,
particularly in that it is not clear for whom and
for what purpose it was prepared, nor to whom it may
have been distributed. Such factual questions may
only be resolved by a court, as this office is not
a trier of fact. However, if it was in fact prepared
for the President's own personal or deliberative use,
and if it has not been disseminated or distributed
beyond the zone of privacy allowed to protect that
deliberative process, then it would remain exempt
from disclosure as a working paper of the President.
General
Guidance on the Working Papers Exemption
This office is aware that the application of the working
papers exemption has generated a significant amount
of public controversy and debate, as well as proposed
legislative changes to the exemption itself.18
In addition to the specific considerations of the
facts you have presented, this opinion offers the
opportunity to provide more general guidance. In order
to facilitate a clearer understanding of the exemption
as it is currently written, consider the following
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.
Thank you for contacting this office. I hope that
I have been of assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1Notice
found at http://www.vtnews.vt.edu/articles/2014/12/120514-provost-townhall.html
(internal link to a December 10, 2014 live stream of
the event omitted).
2See Ch. 11 of Title 23 of the Code
of Virginia (§§ 23-114 through 23-155.05).
3See, e.g., 1980-1981 Op. Atty. Gen. Va.
395; Freedom of Information Advisory Opinions 08 (2004),
32 (2001), and 12 (2000).
4See, e.g., 1982-1983 Op. Atty.
Gen. Va. 724; Freedom of Information Advisory Opinions
17 (2004) and 12 (2000).
5Freedom of Information Advisory Opinion
12 (2000).
6Freedom of Information Advisory Opinion
17 (2004).
7Freedom of Information Advisory Opinion
12 (2000).
8Id.
91980-1981 Op. Atty. Gen. Va. 395.
10Freedom of
Information Advisory Opinion 12 (2000)(internal cites
omitted).
111976-1977
Op. Atty. Gen. Va. 315.
12The American Heritage Dictionary 410 (2d
College ed. 1982).
13Freedom of Information Advisory Opinion
17 (2004).
14Id.
15Id.
16Id.
17Id.
18For example, Senate Bill 893 (2015), which
did not pass, would have eliminated the working paper
and correspondence record exemption for the president
or other chief executive officer of any public institution
of higher education in Virginia.
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