Present: All the Justices
Eric R. Lawrence, Zoning Administrator, Et Al.
Jeffrey G. Jenkins
Record No. 990030
OPINION BY JUSTICE CYNTHIA D. KINSER
November 5, 1999
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
John R. Prosser, Judge
In this appeal, we decide whether an individual requesting
documents pursuant to the Virginia Freedom of Information Act
(FOIA) is denied rights and privileges conferred by that act when a
responding public official chooses to exercise an exemption,
redacts the exempt information from the documents, but fails to
timely reference the applicable Code section making portions of the
requested documents exempt. We conclude that, in this situation,
the requesting individual was not denied rights and privileges
under FOIA and that the circuit court therefore erred by issuing a
writ of mandamus and ordering release of the exempt information.
Accordingly, we will reverse the judgment of the circuit court.
Appellee Jeffrey G. Jenkins submitted a written FOIA request to
appellant Eric R. Lawrence, the zoning administrator for Frederick
County, pursuant to Code §§ 2.1-340 through
&endash;346.1. In his request, Jenkins asked for "all documents
with respect to any complaints made concerning [his] property
located at 1631 Redbud Road, including, but not limited to, the
complete original texts of any such complaints, the identity of the
complainants, and the dates such complaints were made." The zoning
administrator timely furnished the requested information, with the
exception of the identity of the complainants. He redacted that
information from the documents. With regard to the redacted
information, Lawrence stated in his response to the FOIA request
that "the release of the identity of complainants are [sic]
protected and is not provided for through the Freedom of
Information Act." However, he did not reference the specific Code
section making the identity of the complainants exempt from
Jenkins then filed a petition for a writ of mandamus. In that
petition, he contended that the zoning administrator must either
exercise a specific exemption under FOIA when refusing to disclose
information or release the requested information. Accordingly,
Jenkins asked the circuit court to order the zoning administrator
to produce the requested documents "in an unaltered form."
Shortly before a hearing on the petition, Lawrence advised
Jenkins in writing that the redacted information was exempt from
disclosure pursuant to Code § 2.1-342(B)(1). Nevertheless, the
circuit court concluded that the zoning administrator had not
timely invoked an exemption from disclosure pursuant to FOIA and
that a violation of that act had therefore occurred. Accordingly,
the court issued a writ of mandamus and directed the zoning
administrator to release the complete documents to Jenkins. We
awarded Lawrence this appeal.
The provision of FOIA at issue in this appeal is Code §
2.1-342(A)(3). That section provides that, when a public body is
responding to a FOIA request and determines that an exemption
applies to a portion of the requested information, the public body
delete or excise that portion of the records to which an
exemption applies, but shall disclose the remainder of the
requested records and provide to the requesting citizen a written
explanation as to why these portions of the record are not
available . . . with the explanation making specific reference to
the applicable Code sections which make that portion of the
requested records exempt.
The public body must respond to the request within five work
days. Code § 2.1-342(A).
Jenkins argues that the zoning administrator did not invoke the
exemption provided in Code § 2.1-342(B)(1) because Lawrence
failed to reference that specific Code section in his initial
response to the FOIA request. According to Jenkins, Code §
2.1-340.1 thus mandates disclosure of the identity of the
complainants in this case. That section, which generally addresses
the policy considerations underlying the enactment of FOIA, states
that "[u]nless the public body specifically elects to exercise an
exemption provided by this chapter or any other statute, . . . all
reports, documents and other material shall be available for
disclosure upon request." Jenkins also points out that, when
Lawrence did cite Code § 2.1-342(B)(1), the response time of
five work days specified in Code § 2.1-342(A) had already
expired. Therefore, he contends that Lawrence's failure to strictly
comply with Code § 2.1-342(A)(3) constitutes a denial of his
request and a violation of FOIA.
In response to Jenkins' argument, Lawrence acknowledges that,
when he initially responded to the FOIA request, he technically
violated Code § 2.1-342(A)(3) by failing to refer to the
specific Code section making the identity of the complainants
exempt from disclosure. He also admits that the response time of
five work days had expired when he provided the Code section to
Jenkins. Nevertheless, Lawrence asserts, and we agree, that he
utilized the exemption contained in Code § 2.1-342(B)(1) by
redacting the identity of the complainants from the documents and
stating in his initial response that their identity is protected
from disclosure under FOIA. Thus, the issue before us is whether
the trial court erred in issuing the writ of mandamus and ordering
the release of the redacted information solely because the zoning
administrator, in electing to exercise an exemption provided in
FOIA, failed to timely refer to the specific Code section making
that portion of the requested documents exempt.
A writ of mandamus is one of the remedies available under Code
§ 2.1-346 when a person is denied rights and privileges
conferred under the provisions of FOIA. However, "[a] writ of
mandamus is an extraordinary remedial process, which is not awarded
as a matter of right but in the exercise of a sound judicial
discretion." Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151,
104 S.E.2d 813, 816 (1958). One of the elements necessary before a
writ of mandamus issues is the clear right of the petitioner to the
relief being sought. Stroobants v. Fugate, 209 Va. 275, 278, 163
S.E.2d 192, 194 (1968) Thus, a writ of mandamus was appropriate in
this case only if Jenkins was denied clearly established rights and
privileges under FOIA. We conclude that he was not.
The identity of the complainants, which Lawrence redacted from
the documents disclosed to Jenkins, is not the kind of information
subject to mandatory disclosure under any provision of FOIA.
Rather, that information comes within the exemption contained in
Code § 2.1-342(B)(1). Consequently, its disclosure is subject
to the discretion of the zoning administrator. Lawrence exercised
that discretion and elected to withhold the identity of the
complainants. He redacted that information from the requested
documents and then advised Jenkins not only as to the nature of the
redacted information but also that it was protected from disclosure
Thus, we conclude that Jenkins received all the information that
he was entitled to receive under FOIA. Lawrence's failure to refer
to Code § 2.1-342(B)(1) within five work days did not bring
about a denial of any rights or privileges afforded to Jenkins
under the provisions of FOIA and did not operate as a waiver of
Lawrence's otherwise valid exercise of an applicable exemption. Cf.
Tull v. Brown, 255 Va. 177, 184, 494 S.E.2d 855, 859 (1998) (public
official's decision to provide transcript of 911 tape recording did
not waive right to deny access to tape itself under applicable
exemption). Accordingly, a writ of mandamus was not an appropriate
remedy in this case. See Stroobants, 209 Va. at 276-77, 163 S.E.2d
at 193-194 (citing Richmond, Fredricksburg & Potomac Ry. Co. v.
Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548 (1965)).
For these reasons, we will reverse the judgment of the circuit
court and dismiss Jenkins' petition for a writ of mandamus.
Reversed and writ denied.