The Pitfalls of Exempting Working Papers

sw15-rhyne-60x80By Megan Rhyne
Executive Director
Virginia Coalition for Open Government

There’s a bill on offer in the Michigan legislature. As proposed by a Democratic representative from Grand Rapids, the bill would make the state’s Freedom of Information Act applicable to both the governor and the state legislature.

I wish the Michiganders well. Getting state lawmakers and a governor to voluntarily expose themselves to the glare of the open records light is an uphill battle, no doubt. It’s one of those issues that lawmakers have trouble seeing the forest of good government through the trees of their own self-interest.

Virginia waded through that battle years ago and miraculously came out on the other side with both the executive and legislative branch subject to FOIA. This is a good thing, and I’m proud that my home state sees the light.

But what we have now in Virginia is more like what Cher in “Clueless” calls “a full-on Monet”: “It’s like a painting, see? From far away, it’s OK, but up close, it’s a big old mess.”

The so-called working papers exemption is largely (if not exclusively) to blame for making this big old mess.

The exemption applies to records “prepared by or for” a list of named people “for his personal or deliberative use.”

The idea, of course, is that we want our leaders to be able to collect information from all sources, separate out the wheat from the chaff, and then make the best decision. People will presumably feel freer to talk and offer up ideas if they know that their dumb idea won’t be splashed across the front page.

Some states have some version of this for the governor, though they may call it “deliberative process” or “executive privilege,” but many more states have no protection at all for the chief executive’s records.

Some of the states that do not exempt their governor nonetheless exempt their legislatures from public records acts (it’s good to write the laws!), but several legislatures are subject to the laws, and of those, probably half have a working-papers-type exemption.

There are usually one of two critical distinctions, however: the exemption is limited to matters related to the crafting of legislation (drafts, correspondence, reports), and/or the exemption no longer applies after a decision is made. The same post-decision limitation is present in many states with a similar exemption for chief executives.

Those are reasonable limitations. The first, again, is to encourage open discussion to come up with the best solution. The second balances the government’s need for confidentiality against the public’s right to know and determines that the public has an interest in seeing what went into a particular decision. The other records in the office? Well, those should be disclosed.

Virginia has no limitation, despite Sen. Chap Peterson’s effort last year to impose one. Virginia’s working papers exemption has two additional problems: it has been extended to a long and growing list of individuals, and it also covers all of their correspondence.

Those who can take advantage of the working papers exemption include:

“the Office of the Governor; Lieutenant Governor; the Attorney General; the members of the General Assembly, the Division of Legislative Services, or the Clerks of the House of Delegates and the Senate of Virginia; the mayor or chief executive officer of any political subdivision of the Commonwealth; or the president or other chief executive officer of any public institution of higher education in Virginia.”

Underneath the members of the General Assembly, there are also legislative aides, and under the Office of the Governor there’s the chief of staff, counsel, director of policy, Cabinet Secretaries, and the Assistant to the Governor for Intergovernmental Affairs” and “individuals to whom the Governor has delegated his authority” pursuant to another statute.

If you’re keeping count, we’re talking several hundred people here. Several hundred people conducting the public’s business in near-total, sanctioned secrecy.

Petersen and Del. David Ramadan introduced bills this year to strike university presidents from this list. Presumably this idea was prompted by the difficulty many had getting records from the office of UVA President Teresa Sullivan after the Rolling Stone story raised questions about how allegations of rape are handled on campus.

Frank LoMonte from the Student Press Law Center says Virginia is unique in extending such a broad exemption to university president. And there may be a policy argument for why they should or should not be able to use it. But the university presidents represent just 15 people.

The rest of the folks who can use the working papers exemption are likely going to fight pretty hard to keep it. So what may ultimately prove to be a more productive conversation is how the existing exemption can be reined in.

When FOIA was revamped in 1999, the working papers exemption was targeted for a narrowing rewrite, in part to counter a practice that had developed during the Allen administration where ordinary records were stamped “Governor’s Working Papers” to keep them out of the public’s hands. When that type of problem is being addressed, the implication is that there are records used or possessed by those named in the exemption that are subject to disclosure; records that could only be protected by way of a stamp. That is, the exemption does not apply to everything in that person’s office.

The late Del. Chip Woodrum was on that FOIA rewrite team, and even as a beneficiary of the exemption, Woodrum said years later that the exemption’s purpose was to allow withholding if release would interfere with government function, not to give officials an excuse to deny requests.

But that is what has happened. It matters not whether there’s a critical public interest to protect by invoking the exemption. What matters now is that officials use it to deny any and all requests for records, effectively shielding everything they do, and everyone they talk to.

Worried about heavy handed lobbyists, corporate donors or special interest groups trying to curry favor with an official? Concerned that an official is pressuring employees to pursue questionable projects? You’ll be hard pressed to gain insight with the limitless working papers/correspondence exemption in the picture.

It is not my intention to implicate any one individual. I’m even willing to assume that every single individual who can use this exemption does so with only the purest motives and the most pristine record of public service. But it is simply unacceptable in a representative democracy to leave the public in the dark about these individuals’ performance. Investigative journalists may be able to help shed some light, but otherwise we’re left with our government officials essentially telling us that we’re going to have to trust them because they aren’t going to show us their records.

Leviathan is alive and well in Virginia. It is well past time that this monster be tamed.


The Virginia Coalition for Open Government is a nonprofit alliance formed to promote expanded access to government records, meetings and other proceedings at the state and local level. For more information, go to opengovva.org, and follow Rhyne on Twitter at @opengovva.

Posted in Toolkit