VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
February 1, 2010
The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your letter of December 5, 2009 and conversations with the Arlington County Attorney's Office in January, 2010.
Dear Ms. Hill:
You have asked whether copies of certain photographs of your mother's real property taken by county employees must be provided to you under the Virginia Freedom of Information Act (FOIA). As background, you indicated that your mother was cited for building code violations at her home and an adjacent vacant lot which she also owns. You related that she appealed to the local Board of Building Code Appeals (the Board). You stated that during the public hearing before the Board held in July, 2008, several photographs taken by county maintenance officials were presented as evidence of the alleged violations. You indicated that you also presented to the Board photographs that you had taken, and that the county maintenance code officials made copies of your photographs and other materials you presented. You stated that after the hearing you requested copies of the photographs taken by the county. The county denied your request, stating that these records are exempt from disclosure under § 2.2-3706 Disclosure of criminal records; limitations and therefore will not be released.
The general policy of FOIA set forth in § 2.2-3700 provides that Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records ... shall be presumed open, unless an exemption is properly invoked. Furthermore, [a]ny exemption from public access to records ... shall be narrowly construed and no record shall be withheld ... unless specifically made exempt pursuant to this chapter or other specific provision of law. FOIA defines a public record to include all writings and recordings...regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business. There can be no doubt that photographs taken by County employees as evidence of USBC violations are public records under this definition. Therefore, following the stated policy of FOIA, a request for such records may only be denied pursuant to a proper exemption.
In denying your request, the Board invoked § 2.2-3706, which contains several exemptions applicable to various types of records pertinent to law enforcement. While it would go beyond the statutory charge of this office to interpret laws outside of FOIA,1 it is clear on its face that § 36-106 of the Uniform Statewide Building Code (USBC) provides for violations to be punished both civilly and with criminal fines and jail time. Subsections A and B of § 36-106 explicitly state that certain violations of the USBC shall be deemed a misdemeanor. Subsection C of the same section provides for the establishment of a schedule of civil penalties for USBC violations. Similarly to subsections A and B, subsection D of the same section states that anyone who violates certain USBC provisions concerning lead hazards shall be guilty of a misdemeanor. Because violations of USBC provisions are punishable as criminal misdemeanors, records exemptions in § 2.2-3706 concerning criminal matters may apply to records concerning USBC violations. For example, subdivision F 1 of § 2.2-3706 exempts certain records relating to a criminal investigation or prosecution, and therefore could be invoked to withhold such records relating to an investigation or prosecution of a USBC violation. In denying your request, the County did not specify which subsection or subdivision of § 2.2-3706 applied to the photographs in question. Given the context of this opinion, it is presumed that subdivision F 1 of § 2.2-3706 is the applicable exemption. Note that subdivision B 1 of § 2.2-3704 requires that when a request for records is denied in its entirety, the public body must cite the specific Code section that authorizes the withholding of the records. FOIA does not require the public body to cite a subsection or subdivision of a Code section. Therefore the County's response citing § 2.2-3706 without citing a specific subsection or subdivision is in compliance with the minimum requirements of FOIA. However, citing a specific subsection or subdivision within a Code section is a common and commendable practice which helps to clarify exactly which exemption is being invoked.
In this instance, you stated that photographs of your mother's property taken by County employees were presented at a public hearing before the Board as evidence of USBC violations. The USBC provides for the establishment of a local board of building code appeals (LBBCA), but does not address how evidence is to be handled during a hearing before an LBBCA.2 The pertinent regulations state that all hearings before the LBBCA shall be open meetings....The chairman shall have the power and duty to direct the hearing, rule upon the acceptance of evidence and oversee the record of all proceedings.3 It does not appear that there is any more specific rule of evidence applicable to such hearings. Based on the facts as you have described them, the photographs were presented as evidence during the public hearing held by the Board - i.e., the photographs were made public during the public hearing, before you made your request for copies. It would not make sense for such photographs to be withheld in response to a subsequent FOIA request. In the context of the facts you presented, it is presumable that photographs being used as evidence of a USBC violation might be withheld in order to protect the progress of a criminal investigation or prosecution.4 That is the obvious purpose of the exemption in subdivision F 1 of § 2.2-3706, to allow criminal investigations and prosecutions to proceed unimpeded, without forcing the public body to reveal records prematurely that might jeopardize the investigation or proceedings. However, once the public body does reveal such records voluntarily and publicly by presenting them as evidence at a public hearing, that exemption cannot then be invoked to withhold records already made public. If the County had additional photographs that were not entered into the public sphere, those photographs might properly be withheld under the exemption cited as records relating to a criminal investigation or prosecution. However, once the photographs have been voluntarily shared with the public and the alleged violator during the course of a public hearing, none of the reasons for exempting them remain. Therefore, under the facts you have presented, the proper response would have been to provide you with copies of any photographs that had been used as evidence during the public hearing. Other photographs that the County may possess that were not made public during the public hearing may still be withheld pursuant to § 2.2-3706.
Finally, please note that this office contacted the office of the Arlington County Attorney in regard to your inquiry. The office of the County Attorney indicated agreement that records presented in evidence at a public hearing are subject to disclosure under FOIA. Furthermore, it is my understanding that another hearing was held before the Board on December 15, 2010, and that you have been provided with copies of the photographs taken by the County that were used as evidence in this matter. Therefore, it appears that although the response to your initial request last year was in error, this matter has since been resolved appropriately.
Thank you for contacting this office. I hope that I have been of assistance.
Maria J.K. Everett
1. § 30-179 sets forth the powers and duties of the FOIA Council.
2. § 36-105.
3. Subsection G of 13 Va. Admin. Code § 5-63-190.
4. This is especially true of subdivision F 1 of § 2.2-3706, which specifically refers to records relating to a criminal investigation or prosecution.