Background
Walter Smith, acting pro se, filed multiple Virginia Freedom of Information Act (VFOIA) requests with the University of Virginia seeking documents. UVA withheld several documents, claiming they qualified as “working papers” exempt from disclosure under Code § 2.2-3705.7(2). The disputed documents fell into three categories: an email concerning the University Guide Service; documents prepared to brief President James Ryan for an official legislative trip to Richmond; and drafts of joint statements on university admissions policy and the university’s response to a Middle East conflict, to be issued jointly with other UVA officials.
Smith petitioned the Henrico County Circuit Court for a writ of mandamus to compel disclosure. The circuit court held a hearing, reviewed the documents in camera, and heard a declaration from President Ryan regarding the documents’ purposes. The circuit court denied Smith’s petition in full, finding that the documents met the statutory working-papers exemption.
The Court’s Holding
The Court of Appeals affirmed the circuit court’s judgment, upholding the working-papers exemption for the disputed documents. The court held that “‘working papers'” under VFOIA means “those records prepared by or for a public official identified in this subdivision for his personal or deliberative use.” The court defined “personal use” in the statutory context as documents prepared for the purpose of aiding the particular official in performing the duties of his office, not necessarily documents exclusively prepared by that official alone. “Deliberative” use encompasses materials that reflect the give-and-take of the consultative process.
Applying this framework, the court found the travel documents—prepared expressly to prepare President Ryan for official legislative meetings—qualified as working papers because they were created to aid Ryan in performing his official duties. The court rejected Smith’s argument that drafts of joint statements lost their protected status merely because other UVA officials were included on the drafts. The court held that the statute’s plain language does not require documents be prepared exclusively by or for the covered official; the dispositive question is whether they were prepared for that official’s personal or deliberative use. Sharing the drafts with other officials was part of President Ryan’s deliberative process and did not exceed the scope of his deliberative use, so the documents remained protected.
Key Takeaways
- Under VFOIA, a public official’s “working papers” exemption covers documents prepared for either personal use (in aid of performing official duties) or deliberative use (reflecting the consultative process).
- Documents do not lose protection under the working-papers exemption solely because they are shared with non-exempt officials, provided the sharing furthers the exempt official’s deliberative process.
- VFOIA exemptions must be narrowly construed, but courts apply them according to their plain statutory language when statutory requirements are met.
- A concession made at trial without timely objection bars appellate review of the underlying legal issue.
Why It Matters
This decision clarifies the scope of VFOIA’s working-papers exemption for university presidents and other covered public officials. By holding that deliberative sharing with collaborating officials does not waive the exemption, the court acknowledges the practical necessity for officials to consult with colleagues during policy development while maintaining protection for the deliberative process. The ruling gives universities and other public bodies clearer guidance on document retention and disclosure obligations when officials prepare materials jointly.
The decision also reinforces that VFOIA exemptions, though narrowly construed, are not illusory—once statutory requirements are met, courts will enforce them. However, the opinion leaves unresolved the novel question of whether draft versions of a document lose protection after the final version is released, a question the court acknowledged was likely an issue of first impression in Virginia.
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