VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-24

November 15, 2024

Saurav Ghosh

Vienna, Virginia

Request received via email

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 8, 2023.

Dear Mr. Ghosh:

You have requested an advisory opinion on the withholding of records by the Office of the Governor pursuant to exemptions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) (FOIA) relative to voting rights restoration policies, practices, and procedures and any changes to such during Governor Youngkin's administration. More specifically, you request guidance from the Freedom of Information Advisory Council (the Council) on:

1. Whether the responses from the Office of the Governor on June 13, 2023, and August 16, 2023, comply with the statutorily mandated responses for records denials outlined in subdivisions B 1 through B 4 of § 2.2-3704 of the Code of Virginia; and

2. Whether FOIA, pursuant to subsection C of § 2.2-3704 of the Code of Virginia, mandates a public body "make reasonable efforts to reach an agreement with the requester." What is meant by "reasonable efforts" and has the Office of the Governor satisfied this obligation based on its response?

Factual Background

As background information, you, Director for Federal Campaign Finance Reform, in coordination with Ms. Kate Uyeda, Legal Fellow, and Ms. Blair Bowie, Attorney, from the Campaign Legal Center (CLC), in Washington, D.C., submitted a FOIA request on June 1, 2023, via email with attached letter to the Office of the Governor and the Office of the Secretary of the Commonwealth for electronic copies of five categories of records relative to rights restoration policies, practices, and procedures and any changes to such during Governor Youngkin's administration. On its website, CLC describes itself as a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy.¹ More specifically, CLC proposes to fight for every American's freedom to vote and participate meaningfully in the democratic process, particularly Americans who have faced political barriers because of race, ethnicity, or economic status. You also requested to be informed prior to delivery if the fees for production of the records requested exceeded $40. The five categories of records you sought included:

1. Records sufficient to show the identifying information of all individuals whose civil rights have been restored since Governor Youngkin assumed office, including but not limited to the 3,496 individuals announced on May 20, 2022, and those included in the January 15, 2023, report. Identifying information includes: the individual's name, date of birth, conviction information (date of conviction, court of conviction, and crime of conviction), contact information, date of application, any legal financial obligations still owed, whether the individual has completed any assigned parole or probation, and how much time remains on the individual's sentence, if any.

2. All written communications between Governor Youngkin's office and the Office of the Secretary of the Commonwealth concerning:

a. Any changes to the rights restoration process, including but not limited to how an individual applies for rights restoration, how applications are processed, criteria for granting restoration, and notification of denial or acceptance, etc.;

b. Any changes or updates to any state websites discussing rights restoration processes, including but not limited to the Governor's website and the Secretary of the Commonwealth's website;

c. Any changes, updates, or development of any public-facing guidance or instructions on rights restoration processes.

3. Records showing any communications, guidance, policies, practices, or instructions to the general public discussing how an individual may request restoration of his rights and the process for doing so that were created or published since Governor Youngkin assumed office (January 15, 2022, to present).

4. Records showing any communications, guidance, policies, practices, or instructions to local or state agencies discussing changes to the rights restoration process created or published since Governor Youngkin assumed office (January 15, 2022, to present).

5. Copies of all applications for restoration of civil rights received since Governor Youngkin assumed office (January 15, 2022, to present), and records sufficient to show the disposition of each application.

On June 2, 2023, the FOIA Officer for the Office of the Governor requested your name and legal address pursuant to subsection A of § 2.2-3704 of the Code of Virginia, which was provided that same day. Then, the FOIA Officer on behalf of the Office of the Governor responded on June 9, 2023, invoking the seven additional business days to respond afforded by subdivision B 4 of § 2.2-3704 of the Code of Virginia "[d]ue to staffing issues, potential volume of records, and based upon their ongoing inquiries."

Subsequently, the FOIA Officer on behalf of the Office of the Governor emailed a denial of your request on June 13, 2023, stating that "the Governor's review of pardon and restoration of rights petitions is protected from disclosure by the executive privilege and the working papers exemption under [FOIA]." This email expressed that the Office of the Governor was "unable to share specific details about pardon and restoration of rights petitions or grants with you" and that "once the Governor has taken action on a pardon or restoration of rights petition, that information is disclosed to the public." The email also stated that "[t]he names of all individuals who were granted pardons or had their rights restored, under this administration and previous administrations are reported annually in a document the Secretary of the Commonwealth submits to the General Assembly called [Office of the Governor: List of Pardons, Commutations, Reprieves and Other Forms of Clemency to the General Assembly of Virginia] 'Senate Document [No.] 2.'" Moreover, the email provided that "[y]ou can find copies of Senate Document [No.] 2 at this link: https://rga.lis.virginia.gov/" and that "[y]ou can also contact the Division of Legislative Services."

On your behalf, Ms. Bowie and Ms. Uyeda as legal counsel for the CLC sent a letter on August 15, 2023, to the Office of the Governor and its FOIA Officer clarifying "why the stated exemptions do not apply to the records we requested." Citing FOIA and applicable case law, their letter argued that these "records are not protected by executive privilege or the working papers exemption" and "[a]s a qualified privilege, executive privilege exists to 'protect[] the actions and deliberations of the Executive Branch from the intrusions of either the Judiciary of [sic] the Legislature.'"² This letter also referenced several previously issued advisory opinions from the Council, stating that "the working papers exemption acts as an executive privilege."³ The letter further stated that "information must be disclosed regardless of its status as a working paper when information is 'disseminated beyond . . . [the Governor's] personal or deliberative use.'"⁴

CLC's letter also provided notice as to why "none of the records we requested fall under the working papers exemption" for each of the five requested records. As for the first group of requested records (the identifying information of all individuals whose civil rights have been restored since Governor Youngkin assumed office), CLC cited FOIA law stating that "[a]ll such identifying information is publicly available information through the courts system and other criminal records databases and is otherwise subject to disclosure."⁵ Additionally, CLC argued that "[t]o the extent that such information is incorporated within any working paper or correspondence, it must still be disclosed . . . even if it has been aggregated or changed in format if there has been no 'substantive analysis or revision.'"⁶ CLC contended that "if the information sought was provided to the Secretary of the Commonwealth in order to produce the May 2022 and January 2023 reports, it must be disclosed."⁷

For the second group of records (copies of the written communications between Governor Youngkin's Office and the Secretary of the Commonwealth), CLC wrote that FOIA provides that if the records sought "contain otherwise publicly available information, they may not be withheld."⁸ CLC argued that "[t]o the extent that part or all of any records are exempted, the office must disclose the volume and the subject matter of such exempted records and cite to the specific code of the exemption."⁹ For the third group of records (showing communications, guidance, policies, practices, or instruction to general public discussing rights restoration since Governor Youngkin assumed office) sought, CLC stated that "[t]he records sought by [r]equest 3 are not covered by the working papers exemption as any such records would be publicly available." CLC expounded further that even if such records were previously covered by the working papers exemption "that exemption ceased to apply the moment they were provided to the public by the Governor's [O]ffice and thus had been 'disseminated beyond that original personal or deliberative use.'"¹⁰

Regarding the fourth request (records showing communications, guidance, policies, or instructions to state agencies discussing right restoration since Governor Youngkin assumed office), CLC argued that these records "are not covered by the working papers exemption as they have been 'disseminated beyond [the Governor's] original personal or deliberative use.'"¹¹ CLC maintained, "regardless of whether the records at one point were covered under the exemption or contained information previously covered by the exemption," that disclosure of the records was required since the information had been disseminated beyond the Governor's personal or deliberative use.¹² Moreover, CLC insisted that "[s]uch records must also be disclosed even if they are incorporated into any working paper or correspondence, if the records have been non-substantively changed or aggregated."¹³

Concerning the fifth request (copies of all applications for rights restoration and the disposition of each since Governor Youngkin assumed office), CLC stated that these records "are not covered by the working papers exemption," because "the May 2022 and January 2023 reports to the Virginia legislature included the names of rights restoration recipients." CLC concluded that "those individuals' applications, which only include otherwise public information, would also be disclosable." Likewise, CLC reasoned that "any rejected application would be similarly disclosable, since the Governor has similarly 'taken action on a pardon or restoration of rights petition,' as you stated in your email." Subsequently, CLC claimed that "even those applications which are currently pending would be disclosable as they only include publicly available information."

CLC argued that "the Governor's Office may not withhold any public record 'in its entirety' on the grounds that 'some portion' of the record is excluded; a public record may be entirely withheld 'only to the extent that an exclusion from disclosure . . . applies to the entire content of the public record.''¹⁴ Moreover, CLC expounded that "[t]o the extent that any requested record contains validly exempted information, 'only those portions' that are exempted may be withheld and 'all portions of the public record that are not so excluded shall be disclosed.''¹⁵ Lastly, CLC wrote that "pursuant to [FOIA], we renew our request for copies of such records and respectfully remind the Governor's Office of its duty to 'make reasonable efforts to reach an agreement with a requester.'"¹⁶

CLC concluded its letter by stating that:

If the Governor's Office maintains all the records we request are protected by executive privilege and the working papers exemption under [FOIA], please identify the volume and subject matter of withheld records with reasonable particularity, as well as cite the specific code for [sic] that authorizes the withholding for each pursuant to [subsection B of § 2.2-3704 of the Code of Virginia]; see also Virginia Freedom of Information Advisory Council, Opinion Letter 9 (2018) (failing to provide the volume or subject matter of withheld records would violate the state FOIA law). Should records be improperly withheld, we will explore our options for legal redress.

On August 16, 2023, the FOIA Officer responded via email on behalf of the Office of the Governor that "[w]e are in receipt of your email and correspondence dated August 15, 2023" but advised that "this office stands by our prior response."

You and the CLC provided this office with seven exhibits totaling approximately 269 pages of documents regarding this matter. These documents included the initial request submitted under FOIA (Exhibit 1), the Office of the Governor's initial response (Exhibit 2), a letter submitted by CLC on your behalf in response to denial of request (Exhibit 3), and the Office of the Governor's response to your response letter including all of the communications between the Office of the Governor and you in this matter (Exhibit 4).

In your request for an advisory opinion, you noted that the Office of the Governor has already released, through FOIA requests to other requestors, records that would be responsive to your request. As an example, you provided a copy of a letter from the Deputy Attorney General to President of the Virginia State Conference of the National Association for the Advancement of Colored People (NAACP) dated June 8, 2023, as Exhibit 5. The Deputy Attorney General began the letter by stating that he was responding "[o]n behalf of the Office of the Governor" and acknowledging later that some of the records being provided "are exempt from the mandatory disclosure requirements under [FOIA] but are being provided voluntarily under the discretion granted by [§§ 2.2-3705.1 and 2.2-3705.7 of the Code of Virginia] in the interest of transparency and to help further explain the restoration of voting rights process and its application." The letter stated that:

Many of the records contained in today's production are records we understand you are most interested in, namely: the process for restoration of voting rights, the types of information gathered to complete an application, representative samples of documents reflecting correspondence with applicants (including the various forms of letters that are sent to applicants), prior and current application forms, prior and current restoration order templates, and information about the Office of Restoration of Rights within the Secretary of the Commonwealth.

The Deputy General Counsel's letter also conveyed the following:

Please note that some of these documents are exempt from mandatory disclosure under [FOIA] but are being provided voluntarily under the discretion granted by [§§ 2.2-3705.1 and 2.2-3705.7 of the Code of Virginia] in the interest of transparency and to help further explain the restoration of voting rights process and its application. ROR 00004–00005 contain exempt personnel information pursuant to [subdivision 1 of § 2.2-3705.1 of the Code of Virginia] but are being provided in an exercise of discretion. [Subdivision 2 of § 2.2-3705.7 of the Code of Virginia] provides an exemption for the working papers and correspondence of the Office of the Governor, which includes the Secretary of the Commonwealth. We have marked with an asterisk (*) the records that are exempt under [subdivision 2 of § 2.2-3705.7 of the Code of Virginia] but for which the Office of the Governor is exercising its discretion to disclose.

The Office of the Governor is withholding, pursuant to [subdivision 2 of § 2.2-3705.7 of the Code of Virginia], two records that were prepared for the Governor's personal and deliberative use that describe the restoration of rights process for which he is constitutionally responsible. Pursuant to the Office of the Governor's discretion under [§ 2.2-3705.7 of the Code of Virginia] to disclose information about these records, our June 1 conversation with your counsel, and the option to provide information in an abstract or summary form under [subsection D of § 2.2-3704 of the Code of Virginia], the Office of the Governor is providing an abstract or summary version of these records (ROR 00001–00002) in the spirit of cooperation and transparency.

The personal identifying information of individuals who have applied for the restoration of their rights, including full name, date of birth, address, and social security number, has been redacted consistent with your May 9 request and our conversation with your counsel on June 1. For similar reasons, the attachments to the sample emails to agencies that request information for the restoration of rights process are being withheld (ROR 00025–00031). The attachments contain personal identifying information of individuals who have applied for the restoration of their rights and are also exempt under [subdivision 2 of § 2.2-3705.7 of the Code of Virginia].

The letter concluded with a table that contained "descriptions of the documents produced that provide context that may not be apparent from their face, again provided in the interest of cooperation and transparency." You asserted that some of these records that were provided to others, but to which you were denied, would have been responsive to your request for records and include, but are not limited to, the restoration of voting rights application form comparison (ROR 00006), press releases (ROR 00009–00010), common emails sent from Office of Restoration of Rights to individuals seeking rights restoration (ROR 00032–00067), and a memorandum from the Virginia Department of Corrections (VDOC) on updates to rights restoration forms (ROR 00076–00079).

You provided copies of documents relative to the application process for the restoration of voting rights as Exhibit 6. Exhibit 7 contained many documents including the Reentry Resource Packet VDOC provides to released inmates, which included various documents and information on programs from multiple state agencies (the Department of Social Service, the Department of Motor Vehicles, the Department for Aging and Rehabilitative Services, Medicaid, and the Department of Veteran Services), and a copy of the Office of the Governor's List of Pardons, Commutations, Reprieves and Other Forms of Clemency to the General Assembly of Virginia-Senate Document No. 2 for the period of January 16, 2022, to January 15, 2023.

FOIA Policy and Applicable Law

FOIA policy in subsection B of § 2.2-3700 of the Code of Virginia states:

By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. 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, every meeting shall be open to the public and all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

The provisions of [FOIA] 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 or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law. This chapter shall not be construed to discourage the free discussion by government officials or employees of public matters with the citizens of the Commonwealth.

All public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested.

Hence, the FOIA mantra is that "[a]ll public records shall be presumed open, unless an exemption is properly invoked." Interpreting exemptions as narrowly construed is commonly referred to as "the narrow construction rule of FOIA."¹⁷ In Gloss v. Wheeler, the Supreme Court of Virginia recognized this FOIA specific rule of construction, which "'puts the interpretative thumb on the scale in favor of' open government."¹⁸ Adhering to the stated statutory policy, this office has stated that "exemptions must be 'narrowly construed' in favor of disclosure."¹⁹ Furthermore, "if a statute does not specifically exempt a record from disclosure, it must be made available for public inspection and copying under FOIA."²⁰ Thus, applicable exemptions to FOIA's inclination towards the disclosure of public records are examined and analyzed accordingly.

In order to understand the applicability of FOIA, it is important to first define public records. Section 2.2-3701 of the Code of Virginia defines "public records" as:

all writings and recordings that consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording, or other form of data compilation, however stored, and 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.

The three basic elements in determining whether a record is a "public record" are: (i) there must be a record of any type and stored in any manner; (ii) the record must be "prepared or owned by, or in the possession of a public body or its officers, employees, or agents"; and (iii) the record in the possession of such body or agent must be "in the transaction of public business."²¹ Documents or records that are not "in the transaction of public business" are not considered public records under FOIA, and therefore are not subject to its mandatory disclosure requirements.²² As no argument was presented that the records you requested were not public records, our analysis will proceed with the assumption for the purposes of this opinion that the requested records are public records, and therefore subject to the provisions of FOIA.

FOIA specifically stipulates the manner in which a public body shall respond to requests for records.²³ Subsection B of § 2.2-3704 of the Code of Virginia in part requires that "the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester" or reply in writing with one of the four following summarized responses:

1. The requested records are being entirely withheld;

2. The requested records are being partially provided and partially withheld;

3. The requested records could not be found or do not exist; or

4. An additional seven work days is necessary to provide or determine whether the requested records are available.

If the requested records are being withheld, entirely or in part, the public body is required to identify with reasonable particularity the volume and subject matter of withheld records and to cite with specificity the Code section that authorizes such withholding.²⁴ When a public body gives any response other than providing the requested records, then the response shall be in writing.²⁵ Additionally, subsection E of § 2.2-3704 provides that "[f]ailure to respond to a request for records shall be deemed a denial of the request and shall constitute a violation of this chapter." When analyzing a public body's response time to a public records request, note that the term "working days" is not specifically defined in FOIA; however, "as previously opined by this office, weekends and legal holidays do not count as working days when computing the timing of a response."²⁶ "The first day to respond is the first working day after the request was actually received."²⁷ Furthermore, "the five working day time limit refers to the time when a request is received by the public body and when a response is sent by the public body; it does not refer to the time when the response is received by the requester."²⁸

The working papers and correspondence exemption, subdivision 2 of § 2.2-3705.7 of the Code of Virginia, in full, provides that the following information contained in a public record is excluded from mandatory disclosure:

Working papers and correspondence of the Office of the Governor, the Lieutenant Governor, or the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates or 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 the Commonwealth. However, no information that is otherwise open to inspection under [FOIA] shall be deemed excluded by virtue of the fact that it has been attached to or incorporated within any working paper or correspondence. Further, information publicly available or not otherwise subject to an exclusion under [FOIA] or other provision of law that has been aggregated, combined, or changed in format without substantive analysis or revision shall not be deemed working papers. Nothing in this subdivision shall be construed to authorize the withholding of any resumes or applications submitted by persons who are appointed by the Governor pursuant to § 2.2-106 or 2.2-107.

As used in this subdivision:

"Members of the General Assembly" means each member of the Senate of Virginia and the House of Delegates and their legislative aides when working on behalf of such member.

"Office of the Governor" means the Governor; the Governor's chief of staff, counsel, director of policy, and Cabinet Secretaries; the Assistant to the Governor for Intergovernmental Affairs; and those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104.

"Working papers" means those records prepared by or for a public official identified in this subdivision for his personal or deliberative use.

Analysis

The definitions for "the Office of the Governor" and "working papers" serve as significant factors in determining whether the records you requested have been properly categorized as working papers and correspondence prepared for the "personal or deliberative use of the Office of the Governor," and therefore are exempt from disclosure. It should be noted that the definition for "the Office of the Governor" includes not only the Governor, himself, but other individuals, such as his chief of staff, his counsel, the Cabinet Secretaries, and any secretary or other officer to whom the Governor has delegated his authority to pursuant to § 2.2-104 of the Code of Virginia.

This office has analyzed the working papers exclusion in several advisory opinions before.²⁹ For instance, this office previously issued an advisory opinion regarding whether the denials of FOIA requests submitted to the Office of the Governor and the Department of Elections (the Department) for a list of felons whose voting rights were restored were proper.³⁰ The Office of the Governor denied these requests citing the working papers exclusion in subdivision 2 of § 2.2-3705.7 of the Code of Virginia.³¹The Department also denied these requests pursuant to subsection B of § 24.2-404 of the Code of Virginia, which sets forth certain duties of the Department concerning voter registration, and states that FOIA "shall not apply to records about individuals maintained in this system."³² This office determined that:

a list of felons who have had their voting rights restored by the Governor would be a public record as defined, regardless of whether it was used by the Governor in making the determination to restore rights, or whether it was used by the Department [of Elections] in carrying out its duties involving voter registration. As a public record, such a list [if it existed] would be subject to mandatory disclosure under FOIA unless an exclusion or other specific provision of law allows it to be withheld.³³

The requester had "indicated that the list was shared by the Office of the Governor with the Department to inform the Department which felons are eligible to register to vote and to enable the Department to carry out its duties in that regard."³⁴ This office's conclusion was that "while the list may have been a Governor's working paper when it was first created, it would no longer be a working paper after being disseminated to the Department for the Department's use."³⁵ However, "it appears that the Department may keep the list as part of its voter registration system, which if true, would mean that the list is not subject to FOIA pursuant to subsection B of § 24.2-404 [of the Code of Virginia]."³⁶

Similar to the request considered in the 2016 advisory opinion, you also submitted a request for voting rights restoration records to the Office of the Governor, yet your request was much broader and comprised of other types of public records that are more complex than just a list.³⁷ Your request included:

1. Records sufficient to show the identifying information of all individuals whose civil rights have been restored since [Governor Youngkin] assumed office;

2. All written communications between [the Office of the Governor] and the Office of the Secretary of the Commonwealth concerning the rights restoration process and changes to it;

3. Records showing any communications, guidance, policies, practices, or instructions to the general public discussing how an individual may request restoration of his rights and the process for doing so that were created or published since [Governor Youngkin] assumed office;

4. Records showing any communications, guidance, policies, practices, or instructions to local or state agencies discussing changes to the rights restoration process created or published since [Governor Youngkin] assumed office; and

5. Copies of all applications for restoration of civil rights received since [Governor Youngkin] assumed office and records sufficient to show the disposition of each application.

The Office of the Governor denied your request because "the Governor's review of pardon and restoration of rights petitions is protected from disclosure by the executive privilege and the working papers exemption under [FOIA]." This office has previously opined that "[t]he working papers exclusion, subdivision 2 of § 2.2-3705.7, allows certain officials, including the Office of the Governor, to withhold working papers and correspondence."³⁸ As to your question of whether the Office of the Governor properly used the working papers and correspondence exemption in subdivision 2 of § 2.2-3705.7 of the Code of Virginia in response to your request, that requires further examination.

Applying the previously referenced narrow construction rule of FOIA, previous advisory opinions have determined "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."³⁹ Prior opinions have also 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."⁴⁰This office has previously 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," such as granting an outside party access to the record, would constitute dissemination disallowing use of the exemption.⁴¹ This office has also recognized that the working papers exemption exists to protect the deliberative process, allowing "an official to communicate with others within a zone of privacy without losing the protections of the exemption."⁴² Further examination of these concepts as they relate to your records request is essential to understanding the application of the working papers exemption in FOIA.

In an initial 2015 opinion and in subsequent opinions, this office has provided the following three factors as general guidance for consideration when applying the working papers exemption in subdivision 2 of § 2.2-3705.7 of the Code of Virginia:

1. The purpose for which the record was created;

2. The person for whom the record was created; and

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.⁴³

Proper analysis first requires consideration of the purpose for which the records were created. The creation of records relating to the Office of the Governor in the performance of its duties is an example of a suitable purpose. In this instance, those records required for the Office of the Governor to review and act on petitions for pardons and applications for the restoration of voting rights would be appropriate. Next, we assess whether the records were prepared by or for a statutorily named public official eligible to use the working papers exemption while being cognizant "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."⁴⁴ For example, records specifically created for or at the Office of the Governor's request may be exempt. However, records created elsewhere for someone else's use but ending up in the Office of the Governor through the regular course of business do not qualify.⁴⁵

Lastly, we need to ascertain whether or not the records were prepared for the personal or deliberative use of an official who holds the exemption and whether the records have been disseminated. The records must have been prepared for the Office of the Governor's personal or deliberative use, such as they were in this matter for the purpose of reviewing pardon and restoration of rights petitions and applications. This office has previously opined that "[i]f the records were not prepared for that purpose or were further disclosed in a manner that was not necessary to further the personal and deliberative use of the particular official, then the exemption would not apply."⁴⁶

This office has stated previously that the intent of the working papers exemption is to promote "decision-making creativity with an ongoing zone of privacy [that] ultimately benefits the public by encouraging the free-flow of ideas by government employees and officials."⁴⁷ This office recognized "that the working papers exemption was designed to provide an unfettered zone of privacy for the deliberative process."⁴⁸ So, a record deemed originally as a working paper prepared for the Office of the Governor's personal or deliberative use would qualify under the exemption, but if a record "has subsequently been disseminated beyond that original personal or deliberative use, then it is no longer excluded from mandatory disclosure as a working paper."⁴⁹

The Office of the Governor acknowledged in its response to your request that it was "unable to share specific details about pardon and restoration of rights petitions or grants with you" and that "once the Governor has taken action on a pardon or restoration of rights petition, that information is disclosed to the public." Additionally, the Office of the Governor stated that "[t]he names of all individuals who were granted pardons or had their rights restored, under this administration and previous administrations are reported annually in a document the Secretary of the Commonwealth submits to the General Assembly called [Office of the Governor List of Pardons, Commutations, Reprieves and Other Forms of Clemency to the General Assembly of Virginia] 'Senate Document [No.] 2.'" Records sent to or shared with local or state agencies would likely not qualify under the working papers exemption unless "the disclosure was necessary or desirable for furtherance of" the Office of the Governor's own deliberative process.⁵⁰ However, it is unclear from the information provided whether all of the records you requested were shared with others. Based on the Office of the Governor's response provided above, it is possible that some of the records you requested were disseminated. If a requested record was shared with parties outside "the protected zone of privacy," then that record would no longer qualify under the working papers exemption and would be subject to release. Hence,"[t]he names of all individuals who were granted pardons or had their rights restored" that was reported to the General Assembly should be disclosed.⁵¹

Similarly, you also provided a copy of a letter sent from a Deputy Attorney General that began with the disclosure that he was responding "[o]n behalf of the Office of the Governor" and acknowledged that some of the records being provided "are exempt from the mandatory disclosure requirements under [FOIA] but are being provided voluntarily under the discretion granted by [§§ 2.2-3705.1 and 2.2-3705.7 of the Code of Virginia] in the interest of transparency and to help further explain the process for restoration of rights process and its application." You asserted that some of these records, which were denied to you but which were provided to the Virginia NAACP, would have been responsive to your request.

Altogether, most exemptions to FOIA are discretionary, and pursuant to subsection B of § 2.2-3700 of the Code of Virginia, a public body may utilize an exemption in FOIA or any other law if applicable. However, as previously discussed, if records are disseminated publicly, then the working papers exemption is no longer eligible for use.⁵² FOIA policy in subsection B of § 2.2-3700 of the Code of Virginia "ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." Moreover, subsection A of § 2.2-3704 of the Code of Virginia provides that "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth."

In general, except as specifically provided by law, a public body may not prefer one citizen's request over another citizen's request. In a prior opinion, this office reviewed an inquiry from a citizen who felt that a public body had violated her rights and privileges under FOIA because she had received different documents than others who had made similar requests.⁵³ This office opined that "[s]uch a response might only be a violation to the extent that both your requests and the other requests mentioned used identical language in identifying the records with reasonable specificity."⁵⁴ Nevertheless, FOIA is not intended to be an inequitable process with preferential treatment allowing a public body to choose which requester receives records and which requester does not. "FOIA grants all citizens of the Commonwealth and applicable media representatives the same rights of access to public records and meetings regardless of whether a person is a private citizen, a government employee, or an elected or appointed government official."⁵⁵ Thus, FOIA access rights are generally equal for all citizens with no individual having greater access rights to public records than another individual unless otherwise provided by law.

The exclusion in subdivision 2 of § 2.2-3705.7 of the Code of Virginia applies to "the working papers and correspondence" of specifically named officials and designated public entities. However, FOIA does not include a definition for "correspondence." As stated by the Supreme Court of Virginia in Lawlor v. Commonwealth, "an undefined term must be given its ordinary meaning, given the context in which it is used."⁵⁶ "Furthermore, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results."⁵⁷ As previously opined, when encountering an undefined term in FOIA, the "rules of construction dictate that when a term is not defined, it is considered to have its ordinary meaning, given the context in which it is used is not specifically defined in Virginia law.⁵⁸ "Correspondence" as defined by Meriam-Webster's online dictionary means "communication by letters or email" and "the letters or emails exchanged."⁵⁹ For purposes of FOIA, "correspondence" may be recognized as "written communications including letters, emails, and text messages exchanged" between a public body, its officers, officials, staff members, or other parties.

In subsection B of § 2.2-3704 of the Code of Virginia, FOIA provides that "[a] request for public records shall identify the requested records with reasonable specificity." Because your request included records of "communications" between the Office of the Governor and other parties but not records of "correspondence," the meanings of these terms require further analysis. "Communication" is also not defined in FOIA. Utilizing the previously referenced guidance from the Supreme Court, the ordinary meaning for "communication" according to Meriam-Webster is "a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior."⁶⁰ It also means "information communicated, transmitted, or conveyed," "exchange of information," and "a verbal or written message."⁶¹ As for FOIA, "communication" may be understood to mean the exchange of information through written, verbal, audio, visual, sensual signs or messages.

The exclusion in subdivision 2 of § 2.2-3705.7 of the Code of Virginia allows the Office of the Governor to withhold its correspondence from release.⁶² Utilizing the ordinary understood meaning for correspondence, this exception applies to all written communications such as letters, emails, text messages, etc., between the Office of the Governor and another party. Thus, all correspondence sent or received by the Office of the Governor may be withheld from disclosure. The Secretary of the Commonwealth is eligible to utilize the working papers and correspondence exemption as well. This office has previously opined that "[u]nder subdivision 2 of § 2.2-3705.7, a public body may withhold records that are prepared for the personal or deliberative use of an official who holds the exemption, including a Cabinet Secretary," such as the Secretary of the Commonwealth.⁶³

A public body in receipt of correspondence from the Office of the Governor would be required to release the correspondence if a request was submitted to the other public body, unless it also qualified as a named official or entity specifically identified in subdivision 2 of § 2.2-3705.7 of the Code of Virginia, such as a Cabinet Secretary, or if another exclusion in FOIA or other law applied. In addition, other forms of communications to or from the Office of the Governor not in written form, such as verbal, audio, or video messages, would not be considered correspondence and would be subject to release as a public record, unless those forms of communications also happen to come under the working papers exemption or another exemption in FOIA or other law.

As for records issued by the Office of the Governor to the general public or posted on a government website, the records would not qualify under the working papers exclusion because the records have already been released publicly. "[W]ide 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."⁶⁴ Moreover, "any document labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party."⁶⁵ If communications or other documents released to the general public were subsequently requested, then the applicable records in the possession of a public body should be produced as they have already been disseminated to the publicly. Similarly, records sent to or shared with local or state agencies for the agency's use would not qualify.⁶⁶It is unclear from the information provided whether the Office of the Governor shared the records that you requested with outside parties. However, if any of the requested records were shared with parties outside "the protected zone of privacy," they would no longer qualify under the working papers exemption and would be subject to release.⁶⁷ Hence, the list of "[t]he names of all individuals who were granted pardons or had their rights restored, under this administration and previous administrations" as reported annually to the General Assembly in a document referred to as "Senate Document 2" should be released.

Nevertheless, by invoking the working papers exemption in response to all of the records you requested, the Office of the Governor is claiming that none of the requested records have been disseminated or shared beyond the "zone of privacy" afforded under FOIA.⁶⁸ Under those circumstances, then the Office of the Governor's use of the working papers exemption would be permissible as "the working papers exemption does not expire unless the working papers are disseminated or otherwise made public by the official to whom the exemption applies."⁶⁹ "Absent such a release, a record created by or for one of the named officials for his personal or deliberative use retains the characterization of a working paper."⁷⁰

Question #1

The first question you presented is whether the Office of the Governor's responses to your records request comply with the statutorily mandated responses for records outlined in subdivisions B 1 through B 4 of § 2.2-3704 of the Code of Virginia. On June 9, the Office of the Governor responded by email to your June 1 request invoking an additional seven work days to respond to your request, permissible under response four above. As required by FOIA, this response included the conditions for being unable to provide the requested records within the five work days "[d]ue to staffing issues, potential volume of records, and based upon their ongoing inquiries." This initial response in writing was provided in a timely manner complying with the five work day response deadline along with FOIA's other requirements.

Subsequently, on June 13, the Office of the Governor emailed a denial of your request reasoning that "the Governor's review of pardon and restoration of rights petitions is protected from disclosure by the executive privilege and the working papers exemption under [FOIA]." The Office of the Governor also wrote that "once the Governor has taken action on a pardon or restoration of rights petition, that information is disclosed to the public." The Office of the Governor also stated that "[t]he names of all individuals who were granted pardons or had their rights restored, under this administration and previous administrations are reported annually in a document the Secretary of the Commonwealth submits to the General Assembly called [Office of the Governor List of Pardons, Commutations, Reprieves and Other Forms of Clemency to the General Assembly of Virginia] 'Senate Document [No.] 2.'" Moreover, the Office of the Governor informed you that "[y]ou can find copies of Senate Document 2" on the General Assembly's website.

Consequently, you and the CLC sent a second email and letter on August 15 to the Office of the Governor clarifying the duties and requirements under FOIA for either the release of the requested records or a basis in law for withholding the requested records along with the volume of records being withheld from release. The Office of the Governor did not provide any additional records but responded with a two-line email stating that it was "in receipt of your email and correspondence" from the day before and that "this office stands by our prior response."

Based on the background you provided it appears that Office of the Governor's initial response denying your records request does not strictly comply with the provisions of FOIA as it did not "identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records" as required by subdivision B 1 of § 2.2-3704 of the Code of Virginia. Subsequently, you submitted a second letter to the Office of the Governor notifying the public body of the FOIA requirement to identify the volume and subject matter of records withheld and the Code section authorizing the withholding of the records. The Office of the Governor replied in a second email without further explanation or clarification for the denial. This second response email from the Governor's Office again appears to be a technical violation of FOIA as it does not comply with the denial response provisions in subdivision B 1 of § 2.2-3704 of the Code of Virginia.

In Lawrence v. Jenkins, the Supreme Court of Virginia reversed the trial court's awarding of a writ of mandamus and dismissed the case after finding that a writ of mandamus was an inappropriate remedy in the matter.⁷¹The Supreme Court concluded that there were no violations of Jenkins' rights or privileges under FOIA even though technical violations of FOIA occurred when Lawrence, the zoning administrator, admitted that the response time of five work days had expired by the time he provided the specific Code section that authorized his withholding the identity of the complainants from the records requested by Jenkins.⁷² The Supreme Court held that "Jenkins received all the information that he was entitled to receive under FOIA" and that Lawrence's failure to refer to the specific Code provision authorizing the withholding of information from the records within five work days "did not bring about a denial of any rights or privileges afforded to Jenkins under the provisions of FOIA and did not operate as a waiver of Lawrence's otherwise valid exercise of an applicable exemption."⁷³ Despite the Office of the Governor's responses not strictly complying with the provisions of FOIA, if the exemption does in fact apply to the records in question, then the failure to follow FOIA's procedure in denying your request would be a technical rather than substantive violation of FOIA following the holding in Lawrence.

The Office of the Governor informed you that "once the Governor has taken action on a pardon or restoration of rights petition, that information is disclosed to the public." "It has been previously well-established by both the Office of the Attorney General of Virginia as well as this office that the working paper exemption no longer applies after a document has been disseminated beyond the office of the chief executive."⁷⁴ "Therefore, any document labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party."⁷⁵ If a record has already been disclosed publicly, then the working papers exemption does not apply and the records must be released if requested.

For the sake of argument, if the Office of the Governor does not possess or cannot find the requested records or copies of the requested records do not exist—i.e., if the Office of the Governor is not the custodian of these public records—then directing you to visit the General Assembly's website to obtain the records you requested is a valid response under FOIA, because it equates to providing the contact information for the other public body (i.e., the General Assembly) that is the custodian of the records as set out in subdivision B 3 of § 2.2-3704. Pursuant to subdivision B 3 of § 2.2-3704 of the Code of Virginia, once a public body determines that "the requested records could not be found or do not exist" but "knows that another public body has the requested records, the response shall include contact information for the other public body."

The Office of the Governor's response stated that "[t]he names of all individuals who were granted pardons or had their rights restored, under this administration and previous administrations are reported annually in a document the Secretary of the Commonwealth submits to the General Assembly called [Office of the Governor List of Pardons, Commutations, Reprieves and Other Forms of Clemency to the General Assembly of Virginia] 'Senate Document [No.] 2.'" This response clearly acknowledged that the requested records have already been released publicly and are available on another public body's website. Even though it may seem unlikely for a public body not to retain copies of records that it likely created, it is a possibility. In addition, the Office of the Governor could have also delivered the requested records to The Library of Virginia for safekeeping as required by § 2.2-126 of the Code of Virginia.⁷⁶ Nonetheless, once the Office of the Governor forwards the requested records to the General Assembly or The Library of Virginia, then those public bodies would be considered the custodian of the records since they would have possession of them. FOIA requests could then be submitted to those public bodies.

Whether the Office of the Governor retained copies of the requested records becomes a determination of fact best reconciled by a court of law. No information has been provided to establish whether the Office of the Governor retained copies or not. Nevertheless, if copies were retained, then the Office of the Governor should provide the records upon request unless an exemption applies. Having acknowledged that it submitted the records to the General Assembly, the Office of the Governor cannot retroactively invoke the working papers exemption after the records have been released. Any record "labeled as a working paper would no longer be afforded the protection of the exemption once it was shared with an outside party."⁷⁷

The Office of the Governor invoked "executive privilege" and the working papers exemption to FOIA in response to your request. Although FOIA does not contain a specific provision for "executive privilege," such a declaration is not unprecedented. In Taylor v. Worrell Enterprises, Inc., an employee of a local newspaper sought an itemized list of long-distance telephone calls placed by the Office of the Governor pursuant to FOIA.⁷⁸ The special assistant to the Governor as custodian of records agreed to provide the aggregate monthly charges for various phone services, but he refused to produce a list of itemized calls showing the telephone numbers, their corresponding cities, and the charges pursuant to the working papers and correspondence exemption to FOIA held by the Office of the Governor.⁷⁹ The Supreme Court of Virginia found that the itemized billings were exempted from disclosure under the memoranda and working papers and correspondence exemptions to FOIA held by the Office of the Governor, reasoning that to require mandatory disclosure of the billing information would have violated the separation of powers doctrine in Article I, Section 5 and Article III, Section 1 of the Constitution of Virginia.⁸⁰ The Supreme Court found that disclosure of the information requested "could have a chilling effect on the Governor's use of the telephone" to conduct the Commonwealth's business and may chill those who would otherwise offer valuable consultation to the Governor.⁸¹ The Supreme Court further found that the purpose of FOIA to promote a policy of openness in government did not outweigh the disruption that required disclosure would have imposed on the Governor in executing his duties.⁸²

Because it is a constitutional issue, consideration of executive privilege is beyond the scope of FOIA and the statutory authority of this office.⁸³ Since this office does not address constitutional issues, further arguments would best be presented to a court of law. For the purposes of this matter, if the requested records meet the requirements of the working papers and correspondence exemption as discussed above, then the records may be withheld from disclosure. However, a complete declaration on whether the Office of the Governor properly or improperly withheld the requested records under the working papers and correspondence exemption in subdivision 2 of § 2.2-3705.7 "would require a factual determination, and this office is not a trier of fact."⁸⁴ "If a factual dispute about the content or purpose of the records exists, a court of law is the appropriate place to make any necessary determinations of fact."⁸⁵ The Supreme Court of Virginia has opined that "as a threshold matter, a court's in camera review of the records constitutes a proper method to balance the need to preserve confidentiality of privileged materials with the statutory duty of disclosure under [FOIA]."⁸⁶ "The public body would have the burden by a preponderance of the evidence to establish the exemption in accordance with subsection E of § 2.2-3713 [of the Code of Virginia]."⁸⁷

Question #2

Your second question focuses on FOIA requirements under subsection C of § 2.2-3704 of the Code of Virginia for a public body to make reasonable efforts to reach an agreement with a requester and whether the Office of the Governor satisfied this obligation based on its response to your request. FOIA policy in subsection B of § 2.2-3700 of the Code of Virginia provides that "[a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested." Subsection C of § 2.2-3704 of the Code of Virginia also provides that a "public body shall make reasonable efforts to reach an agreement with the requester concerning the production of the records requested." Finally, in regard to electronic records, subsection G of § 2.2-3704 of the Code of Virginia provides further that a "public body shall make reasonable efforts to provide records in any format under such terms and conditions as agreed between the requester and public body, including the payment of reasonable costs."

The Supreme Court of Virginia has previously stated that:

Under fundamental rules of statutory construction, each statute must be examined in its entirety, rather than by isolating particular words or phrases. The legislature's intent must be determined from the words used, unless a literal construction would yield an absurd result. Thus, when the language employed in a statute is clear and unambiguous, the courts are bound by the plain meaning of that language.⁸⁸

The Supreme Court has also stated that "[e]very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary."⁸⁹

FOIA is not intended to be "an adversarial process staking government against citizens."⁹⁰ FOIA provides that there is a fundamental duty for a public body to collaborate with a requester in production of the records requested, which is reiterated three separate times in the statute as quoted above. FOIA requires a requester to identify the requested records with "reasonable specificity" and a public body to make a "good faith" effort to access, search, duplicate, and supply the records as requested. In several prior opinions, this office has addressed the efforts that a public body must undertake in the search for records.⁹¹ This guidance provided that "while the methods and extent of searches may vary, any search for records made under FOIA must be carried out in good faith."⁹² Therefore, unless there is evidence to the contrary, the presumption in FOIA remains that government officials, officers, and staff members are performing their duties appropriately.⁹³ Now, whether the Office of the Governor in this matter conducted its search for records in "good faith" is a determination of fact that is outside the authority of this office.⁹⁴ Pursuant to established principles that this office has reiterated on numerous occasions, "this office is not a trier of fact and cannot resolve factual disputes."⁹⁵ According to FOIA, a court of law is the only entity authorized to make such a determination.⁹⁶

As previously cited, FOIA policy requires that "[a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested." You and the CLC provided a four-page letter to the Office of the Governor with arguments for release of the records you requested. In response, the Office of the Governor provided you with a two-line email noting that it was in receipt of your email and letter but was standing by its previous decision to deny your request. Given the brief response, an argument may be presented that although an initial search may have been conducted in good faith, reasonable efforts may not have been made to reach an agreement with you regarding your request, but only a court may make that determination. Thus, "a court of law is the appropriate place to make any necessary determinations of fact" and is the only entity empowered to determine whether a public body made reasonable efforts to reach an agreement with a requester for production of records as required by FOIA.⁹⁷

Thank you for contacting this office. We hope that this opinion is of assistance.

Sincerely,

Joseph Underwood
Senior Attorney

Alan Gernhardt
Executive Director

¹https://campaignlegal.org/about
²Northrop Grumman Sys. Corp. v. Commonwealth, 100 Va. Cir. 17 (2018).
³SeeFreedom of Information Advisory Opinion 01 (2000).
⁴See Freedom of Information Advisory Opinion 01 (2016).
⁵See Virginia Code Ann. § 2.2-3701 (referencing definition for "public record").
⁶See Virginia Code Ann. § 2.2-3705.7(2).
⁷See Freedom of Information Advisory Opinion 01 (2016) (quoting "[E]ven if the list was originally a working paper prepared for the Office of the Governor's personal or deliberative use, it has subsequently been disseminated beyond that original personal or deliberative use and therefore is no longer excluded from mandatory disclosure as a working paper.").
⁸See Virginia Code Ann. § 2.2-3705.7(2).
⁹See Virginia Code Ann. § 2.2-3704(B).
¹⁰See Freedom of Information Advisory Council Opinion 01 (2016).
¹¹See id.
¹²See id.
¹³Virginia Code Ann. § 2.2-3705.7(2)
¹⁴See Virginia Code Ann. § 2.2-3704.01.
¹⁵See id.
¹⁶Virginia Code Ann. § 2.2-3700(B).
¹⁷Freedom of Information Advisory Opinion 01 (2020) (See also Freedom of Information Advisory Opinions 02 (2023), 02 (2021), 04 (2020), 04 (2019), 03 (2015), 06 (2013), and 01 (2013)).
¹⁸Gloss v. Wheeler, 301 Va. 258, 279, 887 S.E.2d 11 (2023) (citing Fitzgerald v. Loudoun Cnty. Sheriff's Off., 289 Va. 499, 505, 771 S.E.2d 858 (2015)).
¹⁹Freedom of Information Advisory Opinion 02 (2021) (citing Virginia Dep't of Corrections v. Surovell, 290 Va. 255, 263, 776 S.E.2d 579, 583 (2015) (quoting Fitzgerald v. Loudoun County Sheriff's Office, 289 Va. 499, 505, 771 S.E.2d 858, 860-61 (2015)).
²⁰Freedom of Information Advisory Opinion 04 (2019) (quoting Freedom of Information Advisory Opinion 07 (2003)).
²¹See Freedom of Information Advisory Opinion 02 (2023).
²²See Freedom of Information Advisory Opinion 02 (2014).
²³See Freedom of Information Advisory Opinions 01 (2017) and 07 (2011).
²⁴See Va. Code Ann. § 2.2-3704(B).
²⁵See Freedom of Information Advisory Opinion 01 (2017).
²⁶See Freedom of Information Advisory Opinions 01 (2017), 06 (2014), 01 (2009), 02 (2008), and 08 (2007).
²⁷See id.
²⁸Freedom of Information Advisory Opinions 01 (2017) and 05 (2014).
²⁹See Freedom of Information Advisory Opinions 02 (2023), 08 (2018), 01 (2016), 02 (2015), 17 (2004), and 12 (2000).
³⁰See Freedom of Information Advisory Opinion 01 (2016).
³¹See id.
³²Id.
³³Id. (Note footnote #2 explaining the Office of the Governor's position that "there is not a specific list of felons whose rights have been restored, but rather a process by which the voter registration system database is updated.")
³⁴Id.
³⁵Id.
³⁶Id.
³⁷See Freedom of Information Advisory Opinion 01 (2016).
³⁸Freedom of Information Advisory Opinion 01 (2016).
³⁹See, e.g., 1980-1981 Op. Atty. Gen. Va. 395; Freedom of Information Advisory Opinions 02 (2023), 01 (2016), 02 (2015), 08 (2004), 32 (2001), and 12 (2000).
⁴⁰See, e.g., 1982-1983 Op. Atty. Gen. Va. 724; Freedom of Information Advisory Opinions 02 (2023), 01 (2016), 02 (2015), 17 (2004) and 12 (2000).
⁴¹Freedom of Information Advisory Opinions 02 (2023), 01 (2016), 02 (2015), and 12 (2000).
⁴²Freedom of Information Advisory Opinions 02 (2015) and 17 (2004).
⁴³See Freedom of Information Advisory Opinions 02 (2023), 01 (2016), and 02 (2015).
⁴⁴Freedom of Information Advisory Opinion 02 (2015).
⁴⁵See id.
⁴⁶Freedom of Information Advisory Opinion 08 (2018).
⁴⁷Freedom of Information Advisory Opinions 02 (2023), 02 (2015), and 17 (2004).
⁴⁸Freedom of Information Advisory Opinions 02 (2015) and 17 (2004).
⁴⁹Freedom of Information Advisory Opinion 01 (2016).
⁵⁰Freedom of Information Advisory Opinion 02 (2015).
⁵¹Note that published Reports to the General Assembly are generally available to the public on the Legislative Information System (https://rga.lis.virginia.gov/, last visited September 30, 2024), including the referenced Senate Document 2 (2023) (available at https://rga.lis.virginia.gov/Published/2023/SD2, last visited September 30, 2024).
⁵²See Freedom of Information Advisory Opinions 02 (2023), 02 (2015), and 17 (2004).
⁵³See Freedom of Information Advisory Opinion 08 (2001).
⁵⁴Id.
⁵⁵Freedom of Information Advisory Opinions 02 (2024), 07 (2015), and 02 (2014).
⁵⁶Lawlor v. Commonwealth, 285 Va. 187, 237, 738 S.E.2d 847, 875 (Va. 2013) (citations, internal quotation marks, and alteration omitted).
⁵⁷Id.
⁵⁸Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op. Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., §46:01; see Freedom of Information Advisory Opinion 01 (2022).
⁵⁹https://www.merriam-webster.com/dictionary/correspondence (last accessed September 3, 2024).
⁶⁰https://www.merriam-webster.com/dictionary/communication (last accessed September 3, 2024).
⁶¹Id.
⁶²See Freedom of Information Advisory Opinion 50 (2001).
⁶³Freedom of Information Advisory Opinion 08 (2018).
⁶⁴Freedom of Information Advisory Opinion 02 (2015).
⁶⁵Freedom of Information Advisory Opinion 17 (2004).
⁶⁶Note that if the Governor contacted a state agency in order to have the agency generate records for the Governor's personal or deliberative use, those would be protected as "working papers" by definition. However, records that are for the agency's use, rather than for the Governor's use, would not be "working papers."
⁶⁷Freedom of Information Advisory Opinions 02 (2015) and 17 (2004).
⁶⁸Id.
⁶⁹Freedom of Information Advisory Opinion 17 (2004).
⁷⁰Id.
⁷¹See Lawrence v. Jenkins, 258 Va. 598 (1999), 521 S.E.2d 523, 1999 Va. LEXIS 124.
⁷²See id. at 602-603.
⁷³Id. at 603, Cf. Tull v. Brown, 255 Va. 177, 184, 494 S.E.2d 855, 859 (1998) (public official's decision to provide transcript of 911 tape recording did not waive right to deny access to tape itself under applicable exemption).
⁷⁴See 1982-83 Op. Atty. Gen. Va. 724. See also Freedom of Information Advisory Opinions 12 (2000) and 8 (2000).
⁷⁵Freedom of Information Advisory Opinion 17 (2004).
⁷⁶See Va. Code Ann. § 2.2-126.
⁷⁷Freedom of Information Advisory Opinion 17 (2004).
⁷⁸See Taylor, Jr. v. Worrell Enterprises, Inc., 242 Va. 219 (1991), 409 S.E.2d 136, 1991 Va. LEXIS 130.
⁷⁹See id. at 220.
⁸⁰See id. at 221-222.
⁸¹See id.. at 222-223.
⁸²See id. at 224.
⁸³See Va. Code Ann. § 30-179; Freedom of Information Advisory Opinions 16 (2002), 15 (2003), 10 (2005), 06 (2006), 12 (2009), 04 (2012), and 04 (2016).
⁸⁴Freedom of Information Advisory Opinion 01 (2016).
⁸⁵Freedom of Information Advisory Opinions 02 (2023) and 08 (2018).
⁸⁶Hawkins v. Town of South Hill, 87 S.E.2d 408, 416 (Va. 2022) (alterations and citations omitted).
⁸⁷Freedom of Information Advisory Opinion 08 (2018).
⁸⁸Ragan v. Woodcroft Village Apartments, 255 Va. 322, 325-26, 497 S.E.2d 740, 742 (1998) (internal citations and quotations omitted).
⁸⁹Davis v. MKR Development, LLC, 295 Va. 488, 494, 814 S.E.2d 179, 182 (2018) (quoting City of Richmond v. Virginia Elec. & Power Co., 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016)).
⁹⁰Freedom of Information Advisory Opinion 16 (2004).
⁹¹See Freedom of Information Advisory Opinions 05 (2024), 03 (2023), 04 (2018), and 04 (2010).
⁹²Freedom of Information Advisory Opinion 04 (2010).
⁹³See Freedom of Information Advisory Opinion 05 (2024).
⁹⁴See Freedom of Information Advisory Opinion 01 (2016) (quoting footnote #2).
⁹⁵Freedom of Information Advisory Opinion 01 (2016) (quoting footnote #2).
⁹⁶Va. Code § 2.2-3713 (Note that this Code section provides that general district court and circuit courts possess authority to hear FOIA petitions for mandamus or injunction filed against a specific public body).
⁹⁷Freedom of Information Advisory Opinions 02 (2023) and 08 (2018).

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