Supervisor Richard Jamieson followed up on his last email with more details. He removed the reporters from the Royal Examiner and Northern Virginia Daily and added Tony Carter’s campaign email. However, he disclosed that there is a significant BCC list on the email, but not to whom.

Email

** SUPERVISORS DO NOT REPLY ALL **

FYI there is a significant bcc list on this email

Hello Lewis, 
To reiterate, I appreciate your willingness to engage substantively with this policy in writing. Governance improves when concerns are articulated clearly enough to permit detailed response, and your letter provided that opportunity. Whether we ultimately agree on these matters or not, this kind of exchange—specific claims met with specific responses, all conducted in public view—serves the interest of informed democratic deliberation far better than silence or private conversations that constituents cannot observe.

I remain open to continued dialogue on these issues, and I encourage other members of the public who have views on transparency, legal services oversight, or FOIA compliance to make those views known to the Board in writing so that all perspectives can be considered on the record.

Following up on my December 30th response, I want to address each of your specific concerns in detail. As I noted previously, several of your characterizations depart significantly from what the policy actually requires. Below I respond to each claim you made in your letter.

You stated: The policy “reverses the usual presumption of attorney–client privilege” and “elevates transparency above legal prudence.”

The reality: The policy does neither. FOIA establishes public access as the default, and Section 2.2-3700(B) requires that “any exemption from public access to records or meetings shall be narrowly construed.” There is no “usual presumption” of privilege for government records—the presumption is public access unless a specific exemption applies.

My policy Section I.D simply requires the County Attorney to identify which FOIA exemption applies when work product should be withheld from public disclosure, with a level of specificity that comes directly from a FOIA Council opinion (foiacouncil.dls.virginia.gov/ops/07/AO_01_07.htm). That is what FOIA already contemplates: if a record is withheld, there must be a statutory basis for doing so. The attorney is not being asked to justify privilege as something unusual; he is being asked to cite the statutory basis for withholding public records, which is a basic professional obligation under Virginia law.

Framing this as “elevating transparency above legal prudence” creates a false conflict. For legislative matters—proposed ordinances, policy development, regulatory approaches—transparent deliberation is a core part of legal prudence. The concern that documenting relevant legal analysis of proposed legislation somehow undermines prudence assumes that such analysis should ordinarily be secret. For legislative work, FOIA points in the opposite direction.

You stated: Written legal memoranda “substantially increase discovery risk” and “may weaken the County’s position in future litigation.”

The reality: When the Board considers whether to adopt an ordinance, we must weigh multiple factors—fiscal impact, community needs, practical implementation, and legal considerations. FOIA provides that the public is entitled to have access to these, except under narrowly defined circumstances.

As the FOIA Council stated in Advisory Opinion 01-07, “the legal matters exemption … does not justify the discussion of general policy matters in executive session, absent an appropriate legal issue.” Legal analysis of proposed legislation is part of public policy deliberation, not confidential litigation strategy.

If the concern is that documenting our legislative reasoning could later be used in court, the same concern applies to oral deliberations in public meetings, which are recorded and transcribed. The medium—written vs. oral—is not the issue. The premise that legal analysis of proposed ordinances should be kept from public view to avoid creating a record runs counter to FOIA’s structure. If legal analysis is so problematic that documenting it “creates risk,” the question becomes: what is the nature of that analysis? Sound legal reasoning supporting legitimate policy choices does not become a liability simply because it’s written down. The same goes for sound legal reasoning that points to policy proposals that may be legally untenable.

Well-documented legal analysis demonstrating that the Board acted with full knowledge and in good faith should, if anything, strengthen the County’s position if decisions are challenged, as the policy notes in Section I.B.

You stated: Requiring written work product “discourages candid legal guidance.”

The reality: This concern blends two different issues: the format of advice and whether that advice is public. Neither requires that all legal guidance be confidential. Professional legal counsel routinely provides written analysis; that is standard practice in law firms, corporate legal departments, and government agencies. It’s part of a normal professional service.

If an attorney feels unable to provide candid advice when it is written down, the question is whether that advice can withstand scrutiny—not whether it should be documented. The difficulty lies in the substance of the advice, not the medium. The policy also recognizes that truly privileged matters remain protected. Section I.D allows the County Attorney to cite applicable FOIA exemptions where work product involves litigation strategy, transactions, pending disputes, or confidential negotiations. In those situations, the work product can be withheld. The policy does not prevent candid advice in privileged matters; it simply draws a distinction between that category and general legislative analysis, instead of treating all legal communication as automatically confidential.

You stated: The policy requires “extensive written legal analysis” and “comprehensive written legal work for most policy actions,” which will “inevitably raise costs.”

The reality: The policy explicitly rejects that approach. Section I.C states: “There is no make-work intention in this policy nor an arbitrary standard checklist for what constitutes sufficient legal analysis.” It further notes that “legal advice requires the same foundational research, analysis, and reasoning whether delivered orally or in writing; written work product merely memorializes analysis that has already been performed.”

The policy applies to “matters of significant policy import” (Section I.A) and includes an explicit exception for “routine legal questions requiring brief clarification, time-sensitive operational matters, or other circumstances where written documentation would be impractical or unnecessary” (Section I.E). In other words, it targets major policy questions, not every day transactional issues.

If the County Attorney is already conducting the necessary research and analysis for significant policy questions, documenting that analysis should not represent a dramatic new workload. If turning that work into a brief written memorandum creates large additional cost, it raises a different concern: either substantial advice is being given without adequate research, or fully researched analysis is being kept deliberately undocumented. In most professional settings, legal analysis of major policy decisions is documented. The policy is consistent with that norm.

You stated: The 48-hour advance notice requirement “limits the County’s ability to respond promptly to urgent negotiations, litigation developments, personnel matters, or emerging threats” and may require “repeated ’emergency meetings’” as a “workaround.”

The reality: In practice, Warren County routinely publishes meeting agendas 120 hours (five full days) in advance of Tuesday meetings. Our standard procedure already exceeds the 48-hour requirement in the policy, so the claim that 48 hours poses an operational barrier does not reflect how we currently function.

Moreover, Section II.A expressly states that the 48-hour requirement applies “except in cases of genuine emergency.” Legitimate urgent matters are already accommodated. The policy does not inhibit emergency response; it sets a modest expectation of advance notice for routine closed session requests. Given that we currently provide 120 hours’ notice as standard practice, characterizing 48 hours as operationally burdensome appears to object to advance notice itself, not to any specific time constraint.

The concern about “emergency meeting workarounds” describes conduct that would itself be a FOIA violation. That risk exists whenever officials misapply an exemption; the policy does not create it. What the policy does is encourage Board members to have the justification for closure in front of them before voting to go into closed session, which supports FOIA compliance and protects the County’s interests.

You stated: The policy imposes requirements “beyond statutory FOIA requirements.”

The reality: The policy’s closed session procedures are built directly from FOIA’s text and FOIA Council guidance. Section II.A requires that requests identify “the specific legal transaction or dispute requiring confidential legal advice” and explain “why public discussion would compromise the County’s legal position.” That language mirrors Advisory Opinion 01-07, which explains that the “legal matters” exception applies only to specific legal transactions or disputes, not general policy issues, even if those issues eventually have legal consequences.

Virginia Code § 2.2-3712(A) already provides that “a general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.” The policy operationalizes that requirement by asking for specificity in closed session requests. In that sense, it is an implementation mechanism for existing FOIA standards, not an additional legal hurdle.

You stated: “Requiring confidentiality to be justified beyond FOIA’s existing standards creates the impression that privacy itself is suspect.”

The reality: The policy does not ask for justification beyond FOIA’s standards; it asks that confidentiality be justified according to FOIA’s standards. Specifically, it requires that the applicable FOIA exemption be cited when work product is withheld, with specificity as has been laid out by FOIA Council guidance. That is consistent with FOIA’s presumption of openness and its treatment of exemptions as narrow exceptions.

Under FOIA, privacy in the form of closed meetings or withheld records is the exception, not the rule. Requiring an explicit statutory basis for invoking that exception is not casting suspicion on privacy—it is following the framework that the General Assembly already set out.

You stated: Quarterly reviews risk “unintentionally disclosing strategy and creating public misunderstanding” and that “publishing expenditures supports transparency” but “publishing a legal posture creates vulnerability.”

The reality: Section III.A of the policy states that quarterly reports are to be presented “in open session unless specific line items involve matters properly subject to attorney–client privilege or pending litigation.” In those instances, protected matters remain protected.

Section III.B.4 calls for a “summary description of major legal matters addressed during the quarter and their disposition or status.” That is consistent with ordinary fiscal oversight, where public bodies routinely provide at least a general description of services for which public money is spent. The policy explicitly does not require disclosure of specific legal strategy or detailed privileged analysis; it requires a level of description sufficient for meaningful oversight.

The concern that any characterization of legal matters is inherently risky frames a choice between publishing only bare dollar figures or exposing strategy. The policy takes a middle path: general descriptions for oversight purposes, with privileged details withheld. If a particular line item is truly privileged, the existing exceptions still apply.

You stated: “It is highly uncommon for a county to adopt a policy structured like this” and “there is no established best-practice framework” for these requirements.

The reality: It may be true that other localities, or many other localities, have not adopted similar policies. What does that imply? Should Warren County avoid enhanced transparency and documentation because such policies are uncommon? The common practice in many jurisdictions is evidently to operate with minimal written documentation requirements, limited advance notice for closed sessions, and relatively broad discretion for counsel.

The policy takes a different view: that clearer documentation, more specific closed session justifications, and routine reporting on legal expenditures are appropriate governance practices. The rarity of such policies may say more about historical habits and institutional preferences than about what best serves the public interest.

Warren County does not have to mirror the lowest common denominator of practice elsewhere. The question before the Board is whether we will maintain enhanced transparency and accountability standards while observing proper FOIA protections for truly privileged matters, or whether we will revert to practices that prioritize attorney discretion and minimal documentation. That is a policy choice, not a legal requirement. The Board can make that choice at its January 8th  meeting, and the public can observe which way their elected representative’s vote.

Regards,
Rich

Richard Jamieson, Ph.D.

Warren County Supervisor

North River District

https://warrencountyva.gov/DocumentCenter/View/2815/Legal-Services-Transparency-and-Review-Policypdf

https://foiacouncil.dls.virginia.gov/ops/07/AO_01_07.htm

https://law.lis.virginia.gov/vacode/title2.2/chapter37/section2.2-3712