Richmond's Secret Legal Opinions

The law may require transparency - but that doesn't mean the government will deliver.

A city attorney's office is expected to give opinions to city officials upon request, and generally you'd expect such opinions to be privileged. But in Richmond, which seems to be an outlier in Virginia in this respect, those opinions are public by law.

Sec. 2-110 of the Code of Richmond states, in relevant part:

"A copy of each opinion shall be kept on file in the City Attorney's Office and shall be made available for inspection of any person affected by the opinion or having an interest in the opinion. The City Attorney shall prepare periodic indexes of such opinions and may distribute such indexes among the departments, bureaus, boards, commissions, offices, agencies and courts of the City.”

The Secret Meals Tax Opinion(s)

On February 12, 2024, the Richmond Times-Dispatch published an article by Em Holter entitled “Richmond City Council approves meals tax changes after outcry by restaurant owners,” an article in which Richmond Councilmember Katherine Jordan (2nd District) suggested that someone had previously told councilmembers they couldn’t legally take the steps they eventually took to (partially) address the meals tax fiasco.

Who could’ve given that advice? My first thought was the City Attorney’s Office, so I sent a FOIA request to Richmond City Attorney Laura Drewry on February 14, 2024 mentioning the Code section at the heart of the legal question.

My request:

“A recent article in the RTD suggested at least some members of Council were given advice in the past concerning Va. Code 58.1-3913. In accordance with VAFOIA, I am requesting a copy of any formal or informal opinion or advice concerning this code section prepared by your office. I am also requesting copies of any communications transmitting any opinion or advice on this code section to city government staff or officials.

Please truncate my request to records from 1/1/2018 to 12/31/2020.”

After clarifying my request for the City Attorney’s Office, I received a response identifying three email messages responsive to my request but withholding them all as privileged and exempt from disclosure.

On February 28, 2024, I pressed further, citing the Code of Richmond requirement for public opinions, citing FOI Advisory Council Opinion AO-06-18, and asking bluntly: “If you're claiming attorney-client privilege here, who is the client?”

On April 11, 2024, having received no response, I emailed the City Attorney’s Office to refine my request. This time, I removed the language concerning “advice” and focused exclusively on “opinions”:

I don't believe I ever received a response to my February 28 email. I'd like to refine this request - or you can consider it a new request, if you'd like. I'm requesting records of opinions concerning the scope of Va. Code § 58.1-3913, and what it generally requires of the City, prepared by the Richmond City Attorney’s Office between January 1, 2018, and December 31, 2020, and any communications transmitting such opinions to members of City Council, City officials, or City staff.

In response to that language, the City Attorney’s Office responded that they had no responsive records at all.

This office has no records responsive to your request because, although advice was given as referenced in my email of February 22, no such opinions were ever created by our office. None of the records related to that prior request are opinions under Richmond City Code § 2-110. As my email mentioned, those communications are exempt from disclosure under Va. Code § 2.2-3705.1(2) (concerning written advice of legal counsel and any other information protected by the attorney-client privilege).

Do Legal Opinions Even Exist in Richmond?

Finally, I decided to zero in on the fundamental issue and responded on April 17, 2024:

Thanks, Mr. Dickinson. Can you please send me a copy of the most recent opinion created by your office, as well as any opinion indexes your office may have created and distributed. I'm trying to better understand the distinction between advice / opinion as it pertains to your office.

The City Attorney's Office responded on April 25:

"You have requested "a copy of the most recent opinion created by your office, as well as any opinion indexes your office may have created and distributed." Unfortunately, our office cannot find records responsive to your request because we are unable to determine which records qualify as opinions or which indexes have been distributed. Although our office has certainly given City Council, City officials, and City staff a great deal of advice on a wide variety of subjects over the years, it is unclear at what point a given piece of legal analysis rises to the level of an opinion.”

So the City Attorney’s Office - rather conveniently given the disclosure requirement under the law - can’t distinguish between legal opinions and legal advice! As a result, the public and the press are left completely in the dark.

And this rather idiosyncratic example, from Virginia’s “cesspool of corruption,” should remind us all that simply codifying transparency into the law by no means guarantees transparency at all.