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VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH
OF VIRGINIA |
AO-06-18
August
9, 2018
Cameron
Cook
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 electronic mail messages dated December
21, 2017.
Dear
Mr.Cook:
You have asked for an advisory opinion regarding issues
relating to a request for public records from the
City of Alexandria (the City) under the Virginia Freedom
of Information Act (FOIA). You provided copies of
a series of emails detailing your requests to the
City as well as various responses from the City and
from the Vice Mayor.
Questions Presented
Your first question is whether email headers described
in the request for records appropriately fall under
the exemption from mandatory disclosure in subdivision
2 of § 2.2-3705.1 as information that may be
withheld as advice from legal counsel or protected
by attorney-client privilege. Additionally, you have
asked whether the inclusion of a vice mayor's administrative
assistant on an email between an attorney and a vice
mayor would represent a disclosure that breaks the
attorney-client privilege. Finally, you have asked
whether email headers could fall under the exemption
from mandatory disclosure in subdivision 2 of §
2.2-3705.21 as information that describes the design,
function, operation, or access control features of
any security system.
Factual Background
You submitted a request to the City for communications
involving the Vice Mayor, his administrative assistant,
and any member of the City Attorney's office between
August 15, 2017, and September 31, 2017. The City
responded by stating that all of the documents requested
were being withheld pursuant to subdivision 2 of §
2.2-3705.1 "because the documents contain written
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."
You sent a second request to the City asking for the
email headers from the records withheld in the previous
request. You noted that the response did not need
to include the content of the emails, only the headers.
The City responded to your request and stated that
the requested documents would be withheld for the
same reason the records were withheld in your first
request.
After the City's second response, you submitted an
appeal to the City alleging that the information in
the email headers should not qualify as protected
under attorney-client privilege. The City responded
and asserted again that the information you requested
was being withheld pursuant to subdivision 2 of §
2.2-3705.1. This time, the City responded that the
requested information was also being withheld "as
information that describes the design, function, operation,
or access control features of any security system"
pursuant to subdivision 2 of § 2.2-3705.2.
Applicable Law and Discussion
Advice of Legal Counsel and Attorney-Client Privilege
Your first two questions are whether email headers2
generally can include information that falls under
the records exclusion of subdivision 2 of § 2.2-3705.1
and whether the inclusion of the Vice Mayor's assistant
on an email would waive attorney-client privilege
and therefore mean that the public body could not
use the exemption to withhold the records.
It is first necessary to discuss the requirements
under the exemption and what is specifically allowed
to be withheld. Generally, the exemption protects
any information protected by the attorney-client privilege.
In Virginia, attorney-client privilege is governed
by the principles of common law as interpreted by
the courts of the Commonwealth, and this office has
previously opined that six elements must be present
to invoke the privilege: (i) communications from a
client, (ii) to the client's lawyer or lawyer's agent,
(iii) relating to the lawyer's rendering of legal
advice, (iv) made with the expectation of confidentiality,
(v) not in the furtherance of a future crime or tort,
and (vi) absent waiver of the privilege.3 The Supreme
Court of Virginia has also opined that the privilege
applies to more than just communication from a client,
including all confidential communications between
an attorney and his or her client.4
Additionally,
the concept of waiver of the privilege relates to
the fourth and sixth requirements stated above. In
most instances, the inclusion of a third party on
an otherwise confidential attorney-client communication
is deemed to be a waiver of the privilege because
it shows that the intent is for the communication
to not be confidential.5 Courts have, however, identified
some exceptions. For example, if a third party is
helping to facilitate the legal counsel, then including
the third party on the communications would not destroy
the privilege, since the third party is necessary
to the communication.6 Another example is when the
interests of the clients are so closely aligned, such
as in the case of codefendants, that the communications
between all parties may not be a waiver.7 The analysis
regarding waiver of the privilege is therefore extremely
fact specific.
Furthermore,
the ideas of confidentiality and waiver of the privilege
are even more difficult in the context of large entities
such as governments or other public bodies.8 Government
attorneys are tasked with representing an entity comprising
many individuals, including elected officials and
numerous employees. There has been much debate as
to who the "client" of a government attorney
is in specific circumstances.9 In many instances, the
interests of multiple employees or members of the
government would be closely aligned, and communication
between multiple individuals would be necessary for
an attorney to adequately represent the interests
of the government or public body. There are also instances
in which an employee may have interests adverse to
those of other members of the government or public
body. In those instances, it would clearly be a violation
of confidentiality to include those individuals with
adverse interests in the communications. Again, this
area is extremely fact specific, and there has been
little consensus on bright line rules.
FOIA
attempts to address some of these complex issues posed
by attorneys representing public bodies by adding
specific language to the exemption addressing to whom
the advice may be given. In the first words of subdivision
2 of § 2.2-3705.1 the exemption states that a
public body may withhold records that are "written
advice of legal counsel to state, regional or local
public bodies or the officers or employees of such
public bodies." This portion of the exemption
therefore clarifies who can be the client of the attorney
of a public body and that all that is required is
that the records be (a) written legal advice (b) of
legal counsel (c) to state, regional, or local public
bodies or the officers or employees of such public
bodies. The exemption does not place a limit on how
many individuals can receive the advice; it requires
only that the advice come from legal counsel and that
the individuals receiving the advice fall into certain
categories. It is therefore a different analysis than
the traditional waiver of the privilege when members
or staff of a public body are involved. It is important
to remember, however, that the attorney-client privilege
must be construed narrowly, both according to the
FOIA policy stated in § 2.2-3700 and at common
law. If any of the elements of privilege discussed
above are not satisfied, the exemption will not apply.
Therefore, if individuals were included on the emails
other than those allowed by the privilege above, or
if the records were disclosed further to individuals
not contemplated by the exemption, then the records
could not be withheld pursuant to this exemption.
We can now look at your questions and the specific
facts you have provided. First, can an email header
even include information that would fall under one
or both parts of this exemption? Yes, it is possible
that the headers could include such information. The
first portion of the exemption states that it must
be "written legal advice" and the second
portion requires only that it be communications related
to the lawyer's rendering of legal advice. There is
no minimum or maximum length of such advice or communications.
The subject line of an email is certainly large enough
to allow a lawyer to give brief advice to a public
body, or to the officer or employees of such bodies,
or to allow a client to convey a confidential communication.
An example would be a client enquiring in the subject
line, "Should I testify since I lied to the police?"
An attorney could then respond briefly in the subject
line of his or her reply. Additionally, it is possible
that a court could determine that other information
contained in a header, such as dates, times, specific
email addresses, or other information, falls under
the umbrella of advice or communications relating
to the rendering of legal advice in specific contexts.
It is also entirely likely, however, that some information
contained in an email header would not fall under
the exemption, especially the more technical and automatically
created content. Ultimately, if challenged, a court
of law would need to apply the analysis to the specific
information included in a particular header.
Next is the issue of whether including the Vice Mayor's
assistant on the emails would waive attorney-client
privilege and prevent the public body from using the
exemption to withhold the records. In the facts you
provided, the emails are between the City Attorney,
the Vice Mayor, and the Vice Mayor's administrative
assistant. The Vice Mayor is an officer of a public
body, the public body being the City. Additionally,
the Vice Mayor's administrative assistant, while working
for the Vice Mayor, is an employee of the public body.
Assuming the emails contain legal advice from the
attorney, as the City claims, it would appear that
the emails in question fall under the first portion
of the exemption as written advice of legal counsel
to an officer and employee of a public body and could
therefore be withheld. As stated above, the exemption
provides specific language to address the complex
issues facing attorneys representing public bodies
and contemplates legal advice being given by the attorney
to an employee of the public body, such as the Vice
Mayor's administrative assistant. Furthermore, the
exemption does not place a limit on the number of
recipients of the advice; it requires only that the
recipients be a public body or an officer or employees
of such bodies. On the basis of the facts you have
provided, that appears to be the case, and withholding
the records thus would be appropriate. If there is
a factual dispute regarding what the records contain
or how they were handled, a court of law would be
the appropriate body to make that determination. In
that instance, the City would bear the burden of proof
by a preponderance of the evidence to establish the
exemption.10
It
is important to note that the exemption discussed
above in relation to both the email headers and the
emails is subject to the redaction requirement. If
a record contains both information that may be excluded
and information that may not be excluded, a public
body has a duty to release any portion of the record
that does not fall under an exemption from mandatory
disclosure, assuming it meets the definition of a
public record.11
Information
That Describes the Design, Function, Operation, or
Access Control Features of Any Security System
Your final question is whether email headers can be
withheld by a public body pursuant to the exemption
from mandatory disclosure in subdivision 2 of §
2.2-3705.2 as information that describes the design,
function, operation, or access control features of
any security system. It is important to note that
computer security matters are beyond the expertise
and authority of this office. And again, the answer
is that it may depend on the specific information
in a particular record. Generally, however, it seems
that there is some information contained in email
headers that does not appear to describe the design,
function, operation, or access control features of
a security system. For example, email addresses, the
dates and times messages were received, and the subject
lines would likely not describe the design, function,
operation, or access control features of a security
system.12 It is also possible, however, that a court
of law could disagree or find that there is other
information in email headers that does describe a
security system in certain instances. Again, if a
record contains both information that may be excluded
and information that may not be excluded, a public
body has a duty to release any portion of the record
that does not fall under an exemption from mandatory
disclosure, assuming it meets the definition of a
public record pursuant to § 2.2-3701.
Conclusion
In both instances, whether the exemptions in subdivision
2 of § 2.2-3705.1 and subdivision 2 of §
2.2-3705.2 were properly invoked depends on the specific
records withheld and the facts surrounding them. It
is possible that information contained in email headers
could include legal advice and information protected
by the attorney-client privilege. Additionally, FOIA's
exemption under subdivision 2 of § 2.2-3705.1
extends to advice from a lawyer to a public body and
employees of the public body, which appears be the
case in the given factual scenario. The inclusion
of the administrative assistant, as an employee of
the public body, is therefore contemplated by the
exemption and would not destroy the privilege under
the given facts.
Additionally, there seems to be information contained
in email headers that would not fall under the exemption
of subdivision 2 of § 2.2-3705.2 as information
describing the design, function, operation, or access
control features of a security system. The area of
computer security, however, is beyond the expertise
of this office, and it is possible that a court could
find that some information contained in a header falls
within this exemption, depending on the specific factual
circumstances.
In both instances, a public body has a duty to provide
any information that falls within the definition of
a public record that does not fall within one of the
exemptions from mandatory disclosure. If a record
contains both information that may be excluded from
mandatory disclosure and information that may not
be excluded from mandatory disclosure, the public
body may only withhold the portions of the public
record containing information subject to an exclusion.
Thank
you for contacting this office. I hope that I have
been of assistance.
Sincerely,
Chad
M. Ayers
Attorney
Alan
Gernhardt
Executive Director
1I
note that the response you received from the Alexandria
City Attorney quoted language from subdivision 2 of
§ 2.2-3705.2 but referenced subdivision 3 of
§ 2.2-3705.2. The quoted language was moved from
subdivision 3 to subdivision 2 in 2017. Since subdivision
3 of § 2.2-3705.2 addresses security aspects
of a safety program plan adopted by the Commonwealth's
designated Rail Fixed Guideway Systems Safety Oversight
agency, and the email headers you are asking for would
seemingly have nothing to do with that type of program,
I will assume that the intended exemption was the
quoted language under subdivision 2 of § 2.2-3705.2
in the current Code.
2Email headers, as evidenced by the example
you provided, include a variety of information about
the email such as the subject line, email addresses
of senders and recipients, mail servers that the message
has passed through, and IP addresses, as well as other
information.
3See Freedom of Information Advisory
Opinion 04 (2011) (examining a similar issue in which
information was disseminated from a town manager,
who also served as town attorney, to multiple members
of the town council) and Freedom of Information Advisory
Opinion 25 (2003) (examining the requirements of the
attorney-client privilege, specifically in the context
of communications to a public relations firm as the
attorney's agent).
4Walton
v. Mid-Atlantic Spine Specialists, 280 Va. 113,
122; 694 S.E.2d 545, 549 (Va. 2010) (stating that
"[a]s 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").
5See
Commonwealth v. Edwards, 235 Va. 499, 509, 370
S.E.2d 296, 301 (1988) (quoting United States
v. Cote, 456 F.2d 142, 144 (8th Cir. 1972).
6See id. (stating that the "privilege
attaches to communications made to the attorney's
agents, including accountants, when such agent's services
are indispensable to the attorney's effective representation
of the client").
7See
Hicks v. Commonwealth, 17 Va. App. 535, 537 (1994)
(stating that the "privilege extends to communications
among co-defendants and their attorneys when engaged
in consultation about their defense."). The court
goes on to say that the privilege applies "[w]hether
an action is civil or criminal, potential or actual."
Id.
8See
Jeffrey L. Goodman and Jason Zabokrtsky,
The Attorney-Client Privilege and the Municipal Lawyer,
48 Drake L. Rev. 655 (2000) (examining the attorney-client
privilege and how it relates to the obligations of
the municipal lawyer).
9Id.
at 661–663 (discussing the problems with defining
the municipal lawyer's client)..
10See subsection E of § 2.2-3713
(stating: "In any action to enforce the provisions
of this chapter, the public body shall bear the burden
of proof to establish an exclusion by a preponderance
of the evidence").
11See § 2.2-3704.01 (addressing
records containing both excluded and nonexcluded information
and the duty to redact). See also §
2.2-3701 (defining "public records" as "all
writings and recordings that consist of letters, words
or numbers, or their equivalent . . . 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").
12See
Freedom of Information Advisory Opinion 03 (2007)
(providing a similar analysis regarding email headers).
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