January 24, 2001

Mr. Kevin Cox
Charlottesville, VA

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 e-mails of January 12, 2001, and

January 17, 2001.

Dear Mr. Cox:

You have asked two questions about the application of the Virginia Freedom of Information Act (FOIA). The first references access to noncriminal police reports, and the second references access to a phone directory of city employees.

1. You first ask whether you may access copies of noncriminal incident reports from your local police under FOIA. You indicate that the reports relate to incidents in which motorists were charged with failing to yield to the pedestrian right-of-way in a crosswalk. When you made your request, you provided the date, location, charging officer, and name of individual charged for three separate incidents to the police, and requested to view the entire report of each. The police refused your request.

Subdivision G. 1. of § 2.1-342.2 of the Code of Virginia provides that noncriminal incident and other investigative reports kept by law-enforcement agencies are subject to FOIA. However, portions of such records containing identifying information of a personal, medical or financial nature provided to a law-enforcement agency where the release of such information would jeopardize the safety or privacy of any person may be withheld. Therefore, it appears that the police may exercise their discretion and excise personal, medical or financial information as described above.

2. Your second question concerns your attempt to access a phone directory of city employees. You indicate that you requested a copy of such directory from the city, but were told that such a record does not exist. However, you have been told by other city employees that such a record does indeed exist. You ask if such a record would be accessible under FOIA.

Assuming that the record you have requested does indeed exist, it would be subject to FOIA. Subsection A of § 2.1-342 provides that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying by citizens of the Commonwealth. Section 2.1-342.01 sets forth a number of exemptions to this rule, which pursuant to § 2.1-340.1 must be construed narrowly. The type of document that you have requested would not appear to fall under any of the stated exemptions.

Please note, however, that subsection D of § 2.1-342 does not require a public body to create a new record if the requested document does not already exist. If, as you have stated, the public body from whom you requested the phone list continues to assert that such a document does not exist, it is under no obligation to create the record in response to your request. If you believe that such a document does exist despite the public body's assertions to the contrary, your only remedy would be to seek a writ of mandamus or injunction under § 2.1-346.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director