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It
was a struggle, but the Library of Virginia finally
took possession of former Gov. Jim Gilmore’s
papers. The
governor was supposed to send his
gubernatorial records to the archives at Library of
Virginia when he left office.
But he kept numerous boxes himself,
triggering a long feud with the library that was
settled in November 2002 with a signed agreement limiting
public access to the records.
The library agreed to seal access to certain
documents, mainly those to which executive privilege
or attorney/client privilege apply, until January
2015.
Now library staffers are trying to figure out
whether those privileges apply to the
administration's working papers.
The
Virginia Freedom of Information Act defines "working
papers" as "those records prepared by or
for an above-named public official for his personal
or deliberative use."
The officials are the governor, lieutenant
governor, attorney general, members of the General
Assembly or Division of Legislative Services, mayor
or chief executive officer of any political
subdivision, or president or other chief executive
officer of public institutions of higher education.
The Attorney General in 1983 stated that if
working papers are distributed to others, they lose
their status as working papers.
In
April, archivist
Robert Nawrocki asked the Freedom of Information
Advisory Council about the governor’s working
papers that aren’t disseminated: How long do they
keep their status as working papers?
Always a working
paper?
In
an August
31, 2004 opinion, Maria Everett, executive
director of the Freedom of Information Advisory
Council, said, "If
the chief executive were required to make all such
ideas and suggestions public, those who report to
the chief executive might be hesitant to speak up to
brainstorm or make suggestions for fear of public
scrutiny or ridicule. This would result in a
chilling effect on the unfettered and free flow of
ideas..."
The
exemption itself does not contain any limits on how
long it applies, whereas some other exemptions, like
on contracts, apply only while matters are under
negotiation. Furthermore,
said Ms. Everett, when the definition of working
papers was added in 1999, the legislature emphasized
why they were created, not who possessed them:
"The characterization of why the record was
created never changes, despite what decisions may be
made based upon that record or who comes to posses
[sic] a given record."
Therefore, she concludes that the exemption
"was designed to provide an unfettered zone of
privacy for the deliberative process" and that
working papers retain their status until they are
disseminated.
Ms.
Everett is being inconsistent.
If a record is a working paper only because
of why it’s created (“characterization… never
changes”), then it's still a working paper even if
disseminated. For
her argument to hold up, all records created for
that purpose must retain their status as working
papers, no matter what's done with them.
Once a working paper, always a working paper.
However,
the word that should be emphasized in the definition
is not "prepared," but "use."
And it's a particular kind of use: an
official's personal or deliberative use.
The sensible interpretation is that working
papers are those that an official is actively using
for his own deliberations.
If he is no longer using them in that way,
the records are no longer working papers.
If he has disseminated them, they're no
longer for his own use.
Likewise, if he is no longer using them at
all, they're not for his personal or deliberative
use. They
would be "worked" papers rather than
"working" ones. The word
"working" is a present participle,
indicating continuing action.
Rationale for the
exemption
The
purpose of the exemption, Ms. Everett says, is to
provide a private zone for brainstorming.
However, a state or local employee can never
know that his ideas won't become public.
Regardless of the exemption, the official is
free to disseminate the records.
If a staffer’s ideas are good, very likely
they will be spread around.
When an official asks for reports, even for
his own deliberation, the preparer should expect
that they will be shared eventually. Just
where are all these employees who are afraid to
speak up because they may look stupid?
Is it advantageous to protect these timid
souls?
A
better rationale for the exemption is that it gives
officials time to digest material first, while
they're trying to make up their own minds.
Some of the material may be good, some may
not, and the exemption saves officials from having
to deal with the public's questions on reports that
are going to be rejected anyway.
By the time decisions are made, the public
usually isn't interested in the rejected reports.
Their attention is on the approved ones.
The exemption saves officials from
distractions and saves the public from needless
worries or confusion while officials are trying to
decide what they think.
All
the material, however, should be made available to
the public once decisions are made and projects are
underway. Not
everything must be saved.
Generally speaking, reports that are
historically significant must be saved; those that
are not significant need be retained only as long as
they are administratively useful.
Most of the working papers that don't turn
out to be useful no doubt go into the trash can.
However, if they are retained, someone has
found some significance in them, and if they exist,
the public should have access to them.
A former governor's working papers sitting in
the Library of Virginia should be available to the
public. Researchers
must be free to read all the records so that
historical accounts are truthful and complete.
An executive
privilege for legislators and
staff?
The
working papers exemption is related to the common
law deliberative process privilege which protects
records showing a chief executive’s process of
deliberation. That
privilege doesn’t protect facts, though.
The deliberative process privilege is a
relatively recent addition to law, being first
claimed by President Eisenhower and then picked up
by federal courts. By
contrast, the working papers exemption shields facts
as well as opinions.
Virginia’s
working papers exemption not only shields records by
chief executives but other officials as well,
including legislators and even staff of the Division
of Legislative Services. The exemption stems from
ideas of “executive
privilege” but it’s now a hodgepodge for both
the executive and legislative branches.
Mayors have it but not chairmen of boards of
supervisors. (In an opinion in 2002 Ms. Everett said
mayors have it only if they act as
the chief executive officer but if that’s
the case the General Assembly would have given it
just to “the
chief executive officer” instead of to “the
mayor or chief executive officer.”)
The lieutenant governor, whose only real job
is to preside over the Senate, has it, but not the
heads of state agencies.
The
rationale Ms. Everett cites for the exemption is
based on the dubious idea that staff won’t be
candid if others hear them. Staff
can never be assured of privacy anyway since
officials are free to distribute the reports. The
better rationale for it, that it gives officials
time to think things over before making decisions
without being distracted with the public’s
questions, applies only until decisions are made.
Facts certainly ought to be accessible to the
public as soon as possible.
The General Assembly didn’t spell out
exactly when the working papers should lose their
status, but once the work is over, it
makes sense that the papers are no longer
“working.” A
former governor’s papers sitting in the archives
certainly aren’t working any longer.
Records are presumed
open
The
state library should provide access to all of the
governors’ records even if working papers
never lose their status. Section 2.2-126 directs
governors to deliver their records to the Library of
Virginia at the end of their term.
The records are to be made accessible to the
public once cataloguing is complete.
42.1-78 directs that all records deposited in
the archives that are not made confidential by law
shall be open to public access.
The working papers exemption, like all the
FOIA exemptions, is discretionary, not mandatory;
custodians may disclose records if they like, unless
disclosure is prohibited elsewhere by law (there are
provisions of law other than FOIA that require
certain documents to be kept confidential). 2.2-3700
states that all public records are presumed open,
unless an exemption is properly invoked.
If exemptions haven’t been invoked, the
records are presumed open.
Therefore,
the only gubernatorial records that are
“confidential by law” are those where the law
requires them to be confidential and those where the
governor has already invoked a FOIA exemption in
response to a request.
Everything else, including working papers, is
presumed open, and 42.1-78 directs that they shall
be open to public access.
Once the records have been transferred to the
library, the State Library Board is the custodian;
former governors have no authority to invoke
exemptions. The only questions the library need ask
are simple: 1) Is this record required by statute to
be confidential? 2)
Has a court sealed it?
3) Has a FOIA exemption ever been properly
invoked on it? If not, the records must be open.
The legislature rightly decided that archival
records deserve less protection than active records.
While
the Public Records Act shields only records
“confidential by law,” the 2002 agreement
between Gilmore and the library in effect claims
that some records should be confidential by
privilege too. Earlier
this year Judicial Watch won a key decision in a
court case against former Vermont Gov. Howard Dean,
who had likewise made an agreement with the Vermont
archives to seal his records for 10 years. Judicial Watch argued that Dean and the
archives had no authority to overwrite the Public
Records Act by their own agreement. The judge
agreed, stating that Dean would have to list all
documents he wanted to shield and the court would
decide on access to them. Sealing them for 10 years by agreement was
contrary to the Public Records Act.
Executive privilege evaporates once officials
are out of office. How
can they argue that disclosure will harm their
effectiveness in office if they’re no longer in
office?
Once
working papers have done their work, once officials
are no longer using them for their own deliberation,
the public should have access to them.
If
they are important enough to be kept, then the
public should be able to read them. The “duds,” the reports not even
administratively useful, much less historically
significant, need not be kept.
The working papers
that are kept, the ones that turned out to be
useful, will help citizens understand decisions that
officials have made. Once
officials have finished working with them, once
they’ve finished deliberating, the reports should
lose their status as working papers and the public
should have a chance to “witness the operations of
government.” The
only safeguard for good government is for it to
operate in full public view.
--
September 20, 2004
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