The New Paper Trail: Why Your AI Prompts Are Now Public Records

Every few years, the frontier of “public record” expands in ways that make lawyers nervous and IT people shake their heads. Email did it in the 90s. Text messages did it in the 2000s. Slack channels and Teams chats did it more recently. And now we’ve arrived at the next step: artificial intelligence platforms.

There is a myth floating around government offices, sometimes whispered by staff who don’t want their rough drafts discovered, sometimes encouraged by vendors, that anything typed into an AI system is somehow outside the reach of public transparency laws. As if the content is different, or ephemeral, or “not really a document” because it came from a chatbot instead of a yellow legal pad.

Virginia law disagrees.

Virginia FOIA Cares About Substance, Not Format

The Commonwealth’s FOIA statute has one of the broadest definitions of “public record” in the country. It is indifferent to the container, indifferent to the technology, and indifferent to how polished or unpolished the writing may be.

The statute says:

“Public record” means any writing or recording… regardless of physical form or characteristics… prepared by, or in the possession of, a public body or its officers, employees, or agents in the transaction of public business.
— Va. Code § 2.2-3701

That definition swallows nearly every imaginable artifact of modern work. If a public employee types something into a system, any system, while conducting public business, it is a public record. Paper, PDF, Word file, text message, sticky note, Google Doc comment, Slack DM, handwritten margin scribbles, or an OpenAI “prompt history” log. FOIA doesn’t care. Medium is irrelevant.

A prompt written into ChatGPT asking it to “draft tonight’s zoning presentation” is a public record. A block of AI-generated text that becomes a briefing memo is a public record. Even the back-and-forth refinement, the entire chain of edits, prompts, clarifications, and corrections, is a public record, because the statute looks at what the employee did, not the tool they used.

The “Drafts” and “Working Papers” Myth

Some employees assume that anything “draft-like” is automatically shielded. But Virginia is unusually strict about what counts as a “working paper.” The exemption is very narrow and applies only to the personal or deliberative use of specific officials:

• County Administrator
• City or Town Manager
• School Superintendent
• Governor, Lt. Governor, Attorney General
• Cabinet secretaries
• Members of the General Assembly

That list does not include ordinary staff, department heads, technical employees, administrative aides, or analysts.

So, if a staff member uses AI to produce:

• a draft email to a citizen,
• a draft policy idea,
• an early version of a press release,
• a rough analysis of a budget line,
• a code snippet to solve a problem,
• or a summary of meeting minutes,

those drafts are not exempt simply because they are drafts. The law treats an AI-generated draft no differently than a Microsoft Word draft saved at 2:17 p.m. on a Tuesday.

Unless the draft was created specifically for the personal deliberative use of one of the narrow officials listed above, it is not protected.

Routine AI Use = Routine FOIA Exposure

Once AI becomes a normal part of doing government work, it also becomes part of the public record landscape.

If an employee uses ChatGPT, Claude, Copilot, Gemini, or anything similar to:

• draft an agenda
• write a staff report
• help prepare a presentation
• generate ideas for a meeting
• summarize a citizen complaint
• produce talking points
• rewrite dense text
• prepare a response to a FOIA request (yes, really)

the input and output are presumptively FOIA-able.

And not just the final answer. The entire chain: every prompt, iteration, correction, clarification, alternate version, expansion, contraction, and sample paragraph. If a person typed it in the course of public business, the public may request it.

An AI transcript is no different than a chain of tracked changes, email revisions, or handwritten notes in a meeting notebook. It is part of the deliberative record—unless a separate exemption applies (attorney-client privilege, criminal investigative materials, personnel records, IT security documents, etc.). But the “draft” label alone does not protect it.

What About Logs Held by the Vendor?

This is where the cloud era complicates things, but Virginia FOIA has been ahead of this issue for years.

• If a locality has the right to access the logs, then those logs are public records.
  
  
• If a locality can request them from the vendor, same outcome.
  
  
• If the locality uses a paid, enterprise-grade system like Microsoft Copilot, Google Workspace, ChatGPT Enterprise those logs are usually accessible by an administrator.

And if they are accessible, they are subject to FOIA.

Only records that do not exist in the possession or control of the public body are not subject to FOIA. A log stored by OpenAI that the county cannot or has no contractual right to retrieve, is not a public record. But that is far rarer than most assume, especially in enterprise agreements.

A Practical Example: The Chain of Custody Problem

Imagine a zoning staffer asks an AI system:

“Draft a polite response explaining why we cannot adjust the setback requirements for Parcel #118A.”

The AI gives a paragraph. The staffer replies:

“Make it firmer. Less apologetic.”

The AI revises. The staffer says:

“Remove the part about last year’s case, don’t mention the Smith subdivision.”

And the AI produces a final version, which is emailed to the citizen.

Under FOIA, the citizen is entitled not just to the polished email, but also the earlier versions, the internal prompts, the edits, the instructions, the “make it firmer,” the removed reference to the Smith subdivision, and the entire digital trail of how the message came to be.

That is how the law has always worked. The AI system simply automates the drafting process that used to happen inside a Word document or inside a notebook margin.

The Bottom Line

Virginia FOIA does not bend merely because the work is done inside a modern tool.

If a public employee uses AI while conducting public business:

• the prompts,
• the outputs,
• the intermediate steps,
• and the revision history

are all public records, unless a specific statutory exemption applies.

The new world of AI doesn’t replace public accountability. It expands the paper trail, and the paper trail has always belonged to the people.