Counsel for the Appellant:

MICHAEL F. DEVINE
Devine & Connell, P.L.C.
10603 Judicial Drive, Suite 250
Fairfax, Virginia 22030
(703) 691-8410

TABLE OF CITATIONS

STATUTES & CONSTITUTIONS

ATTORNEY GENERAL OPINIONS

OTHER AUTHORITY

Oxford Dictionary and Thesaurus (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The court sustained Mr. Kersey’s demurrer, ruling that because the Commonwealth’s Attorney is a constitutional officer, that official is not a "public body," and thus the general disclosure requirements of Code § 2.1-342 were not applicable. The circuit court also held that Code § 2.1-342.2 required production of merely a summary of the records requested, rather than actual records themselves. Because Mr. Kersey had provided Mr. Connell with a summary of criminal incident information, the circuit court denied the petition as moot.

The trial court entered a final order incorporating the letter opinion on June 7, 2000. J.A. at 87. That same day, Mr. Connell submitted a motion to reconsider the court’s ruling which was denied in a letter opinion on June 28, 2000. J.A. at 96, 115.

A petition for appeal was timely filed with the Supreme Court of Virginia, and an appeal was awarded.

I. The circuit court erred in denying the petition for writ of mandamus on the ground that the Commonwealth’s Attorney is a constitutional officer and therefore not a "public body" and thus the Act ’s general disclosure requirements were inapplicable.

II. The circuit court erred in denying the petition for writ of mandamus on the ground that the Commonwealth’s Attorney was required to produce only a summary of criminal incident information, rather than actual records.

I. Did the circuit court err in denying the petition for writ of mandamus on the ground that the Commonwealth’s Attorney, as a constitutional officer, was not a "public body" and thus the requirements of Code § 2.1-342 were inapplicable?

II. Did the circuit court err in denying the petition for writ of mandamus on the ground that the Commonwealth’s Attorney was required to produce only a summary of criminal incident information, rather than actual records?

At all times relevant hereto, James G. Connell, III, was a Virginia resident engaged in the practice of law as an Assistant Public Defender in Fairfax County. In that capacity, Mr. Connell represented Ahmed Shireh who was charged with carjacking. On April 12, 2000, Mr. Connell saw Assistant Commonwealth’s Attorney Andrew Kersey in possession of a police report that appeared to contain information regarding the alleged carjacking offense. On April 17, 2000, Mr. Connell sent a letter to Mr. Kersey pursuant to the Act requesting that he provide "any and all personnel, arrest, investigative, reportable incidents and noncriminal incidents records, as defined by Code § 15.2-1722, as well as any other records containing criminal incident information, as defined in Code § 2.1-342.2, concerning the alleged carjacking by Ahmed Shireh on or about March 21, 2000." J.A. at 14. This request used the precise terms of Code § 2.1-342.2. Mr. Kersey received the request on April 17, 2000.

On that day, Mr. Connell and Mr. Kersey discussed the request in a telephone conversation. Mr. Kersey did not make any written response to the request until May 2, 2000. In a letter to Mr. Connell’s counsel, Mr. Kersey refused to provide the requested records on the ground that they were exempt from disclosure pursuant to Code §§ 2.1-342.2(B); 2.1-342.2(F)(1); 2.1-342.2(F)(3). J.A. at 27. However, in a letter to Mr. Connell’s counsel dated May 8, 2000, Mr. Kersey provided a summary of "criminal incident information." J.A. at 30. Subsequently, Mr. Connell petitioned the Circuit Court of Fairfax County to issue a writ of mandamus requiring Mr. Kersey to produce the requested records. J.A. at 2.

The Virginia Freedom of Information Act "ensures the people of the Commonwealth ready access to records in the custody of public officials." Code § 2.1-340.1. To achieve this goal, the "Act shall be liberally construed to enable citizens to observe the operations of government and that the exemptions shall be narrowly construed ‘in order that no thing which should be public may be hidden from any person.’" City of Danville v. Laird, 223 Va. 271, 276, 288 S.E.2d 429, 431(1982) (quoting Code § 2.1-340.1). In 1999, the General Assembly undertook a major reorganization of the Freedom of Information Act. While a few substantive changes were made, most of the amendments were intended to consolidate related provisions and provide a more logical organization. All of the disclosure exemptions were removed from Code § 2.1-342 and incorporated into two new sections. Code § 2.1-342.01 contains numerous public records exemptions, whereas Code § 2.1-342.2 reorganizes and consolidates provisions addressing criminal and non-criminal law enforcement records.

The Act’s general procedures remain codified in Code § 2.1-342.^[fn1] "Within five working days" of receipt of a request for records, a public body must make one of four specific responses: (1) that the requested records will be provided; (2) that the requested records will be entirely withheld; (3) that the requested records will be provided in part and withheld in part; or (4) that it is not practically possible to provide the records or determine whether they are available within the five-work-day period. If records are to be withheld in whole or in part, the public body must state in writing "the volume and subject matter of withheld records" and "the specific Code section which authorizes the withholding of the records." Code § 2.1-342(B). Failure to respond to a request is deemed a denial of the request. Code § 2.1-342(E). Code § 2.1-342 also provides that a public body is not required to create a new record if one does not already exist. However, a public body cannot provide a summary or abstract of records except upon terms agreed to by the requester. Code § 2.1-342(D).

In denying the petition for writ of mandamus, the circuit court applied Code § 2.1-342.2 independently from the remainder of the Act, particularly the general procedures contained in Code § 2.1-342. In so doing, the circuit court ignored the plain language of the Act, and the General Assembly’s specific intent in enacting and reorganizing its provisions. The circuit court’s decision, if permitted to stand, threatens to excuse Commonwealth’s Attorneys throughout Virginia from complying with the Act’s procedural requirements, while relieving every other constitutional officer in the Commonwealth from complying with any of the Act’s disclosure requirements.

I. The Office of the Commonwealth’s Attorney is a "public body" and therefore must comply with all of the Act’s provisions.

The fundamental command of the Act is that "Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records." Code § 2.1-342(A). "Public records" are "all writings and recordings . . . however stored and 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." Code § 2.1-341. A "public body" is

any legislative body; any authority, board, bureau, commission, district or agency of the Commonwealth or any political subdivision of the Commonwealth, including cities, towns and counties; municipal councils, governing bodies or counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds.

Code § 2.1-341.^[fn2] Notwithstanding this purposely broad definition, the circuit court held that the Commonwealth’s Attorney is a constitutional officer, and therefore his or her office is not a public body as defined by the Act. This construction, which effectively excludes all constitutional officers^[fn3] from the Act’s disclosure requirements, is not based upon the language of the legislation itself, and undermines the General Assembly’s expressed intent in enacting the statute.

A. The Commonwealth’s Attorney is both a constitutional officer and a public body within the meaning of the act.

The circuit court’s distinction between a constitutional officer and a "public body" does not appear anywhere in text of the Act. To the contrary, the Act is expressly intended to provide public access to government operations, with only narrow and limited exceptions. This is clear from the statement of policy that the General Assembly enacted:

By enacting this chapter [Code § 2.1-340.1 through § 2.1-346.1], the General Assembly ensures the people of the Commonwealth ready access to records in custody of public officials and free entry to meetings of public bodies where the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. . . . The provisions of this chapter shall be liberally construed to promote increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed. . . .

Code § 2.1-340.1. The circuit court’s exclusion of constitutional officers from the Act’s requirements directly conflicts with this policy statement.

The circuit court’s analysis also conflicts with this Court’s holding in Tull v. Brown, 255 Va. 177, 494 S.E.2d 855 (1998). In that case, the Virginia Supreme Court held that a 911 tape prepared by a sheriff’s office was governed by the Act because the tape was "prepared ‘in the transaction of public business.’" Id. at 183, 494 S.E.2d at 858. The Court held that

Sheriff Brown is a public official, see Va. Const. art. VII, § 4, and acts in that capacity when managing the 911 System. Thus we conclude that the 911 Tape is an official record under FOIA. "

Id. The circuit court’s conclusion that constitutional officers are exempt from the Act has been considered by this Court and rejected.

The circuit court’s opinion likewise conflicts with numerous opinions of the Office of the Attorney General which has never deemed constitutional officers such as sheriffs and commissioners of the revenue to be exempt from the Act’s requirements. "[R]ecords kept by the Sheriff’s department in the transaction of public business would constitute official records which are subject to disclosure unless specifically exempted by statute." 76-77 Va. A.G. 250, 252. See also 1996 Va. A.G. 102, 103 (sheriff); 1993 Va. A.G. 221, 224 (commissioner of the revenue); 1990 Va. A.G. 9, 11 (sheriff); 87-88 Va. A.G. 37, 38 (sheriff); 83-84 Va. A.G. 446A , 446A (sheriff).

In support of its erroneous conclusion, the circuit court cited two cases, Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957), and Burnett v. Brown, 194 Va. 103, 72 S.E.2d 394 (1952), both of which note that commonwealth’s attorneys are constitutional officers. Neither case addresses the Virginia Freedom of Information Act, and both support the proposition that a Commonwealth’s Attorney, while a constitutional officer, is also a public body under the Act. ^[fn4]

Elected constitutional officers are, presumably, public officials of the highest order. This Court has correctly concluded that constitutional officers are not exempt from the provisions of the Act. The General Assembly’s stated intent to provide "ready access to records in the custody of public officials" and the Act’s directive that its provisions be "liberally construed" renders untenable the circuit court’s conclusion that the Commonwealth’s Attorney, as a constitutional officer, is not a public body within the meaning of the Act.

B. The Commonwealth’s Attorney is a public body because he is an authority of the Commonwealth and Fairfax County, and his office is an agency of the Commonwealth and Fairfax County.

Code § 2.1-341 defines "public body" to include "any authority, board, bureau, commission, district, or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties . . ." The Commonwealth’s Attorney’s office satisfies this clause of the definition of a public body because it is an authority and agency of Virginia and Fairfax County.

An authority is "a person or body having authority, esp. political or administrative," and an agency is "a specialized department, as of a government." The Oxford Dictionary and Thesaurus 29, 89 (1996). The Commonwealth of Virginia and County of Fairfax have delegated to the Commonwealth’s Attorney the responsibility of enforcing the criminal laws. Code § 15.2-1626 provides that, "The attorney for the Commonwealth shall exercise all the powers conferred and perform all the duties imposed upon such officer by general law. He may perform other duties, not inconsistent with his office, as the governing body may request." The Commonwealth’s Attorney may employ such assistants as may be necessary to accomplish his duties. See Id.; Code § 15.2-1632.

Code § 15.2-1628 provides that the Commonwealth’s Attorney and his assistants "shall be a part of the department of law enforcement of the county or city in which he is elected or appointed." The Commonwealth’s Attorney and his assistants "shall have all the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony." Id. In a large county such as Fairfax, the Commonwealth’s Attorney and his assistants must "devote full time to their duties, and shall not engage in the private practice of law." Code § 15.2-1628. If the Commonwealth’s Attorney or any of his assistants is a defendant in a civil action arising out of his or her official duties, the Commonwealth of Virginia will assign counsel for his or her defense, and will pay the legal fees and expenses involved in the defense. See Code § 15.2-1606.

Thus, as the Commonwealth’s Attorney has been delegated the quintessential governmental duty of enforcing the criminal laws, his office is an "authority . . . or agency of the Commonwealth or of any political subdivision of the Commonwealth", and thus a public body. Code § 2.1-341. Mr. Kersey, an Assistant Commonwealth’s Attorney, is employed by the Commonwealth’s Attorney’s office in Fairfax County. Accordingly, Mr. Kersey is an employee of a public body, and is subject to the provisions of the Act.

C. The Commonwealth’s Attorney’s Office is a public body because it is an organization supported wholly by public funds.

Code § 2.1-341 also defines "public body" to include "other organizations, corporations or agencies in the Commonwealth supported wholly or principally by public funds." The Commonwealth’s Attorney’s also meets this definition of a public body because it is "supported wholly or principally by public funds." Code § 2.1-341. The Attorney General has repeatedly addressed the "public funds" criterion for application of the Act, which has remained constant despite repeated legislative amendments. In one opinion, the Attorney General noted that, "The Act does not provide a definition of ‘public funds.’ Applying the common usage to the term, it would include any moneys owned by the government in the hands of government agencies or officials." 84-85 Va. A.G. 431 .

Applying the public funds criterion, the Attorney General has indicated that the Act applies to a number of "organizations which are not State agencies in the strictest sense." Id. The Attorney General has found that the Christopher Newport College Library, the Old Dominion University Student Senate, and the University of Virginia Honor Committee are public bodies because they are wholly or principally supported by public funds. See 1989 Va. A.G. 17, 19; 84-85 Va. A.G. 431; 77-78 Va. A.G. 482. In other cases, the Attorney General has noted that the classification of an organization as a public body turns on the source of its funding. See 82-83 Va. A.G. 726, n.2 (volunteer fire department); 82-83 Va. A.G. 719 (Fairfax Hospital Association). Private corporations, on the other hand, are not public bodies because they are not wholly or principally supported by public funds. See RF&P Corp. v. Little, 247 Va. 309, 316-17, 440 S.E.2d 908, 913 (1994); 1995 Va. A.G. 4, 6; 81-82 Va. A.G. 429 .

The Commonwealth’s Attorney’s office is supported in whole by public funds, and, accordingly, is a public body within the meaning of Code § 2.1-341. Initially, the county government is obligated to provide the Commonwealth’s Attorney with "suitable space and facilities for the attorney for the Commonwealth to discharge the duties of his office." Code § 15.2-1638. Furthermore, public funds pay for the Commonwealth’s Attorney’s "office furniture, office equipment, office appliances, tax tickets for state and local taxes collectible by county and city treasurers, stationary, office supplies, postage, data processing services, printing, advertising, telephone or telegraph service, [and] repairs to office furniture and equipment. " Code § 15.2-1636.15.

Public funds pay for the compensation of the Commonwealth’s Attorney and his assistants. See Code §§ 15.2-1627.1, 15.2-1632, 15.2-1636.14. Public funds also pay for at least two weeks vacation with pay per year for each employee of the Commonwealth’s Attorney, as well as at least seven days sick leave with pay, and paid legal holidays. See Code § 15.2-1605. Public funds may pay for the defense of a Commonwealth’s Attorney or assistant in a civil case. See Code § 15.2-1606. The Commonwealth’s Attorney’s office is authorized to collect fees from the public to offset its expenses. See Code § 15.2-1627.3. The Commonwealth’s Attorney’s office is required by law to draw its funding from public sources; it may not engage in the private practice of law. See Code § 15.2-1628.

In short, the Commonwealth’s Attorney’s office is wholly supported by public funds. This funding scheme brings the Commonwealth’s Attorney’s office squarely within the Act’s definition of a public body as an "organization[ ], corporation[ ], or agenc[y] in the Commonwealth supported wholly or principally by public funds. "

D. As an Assistant Commonwealth’s Attorney, Mr. Kersey is an employee of a public body, and thus bound by the requirements of Code § 2.1-342.

The Office of the Commonwealth’s Attorney, although established by the Virginia Constitution, is nevertheless a public body under the Act. See Tull v. Brown, 255 Va. 177, 495 S.E.2d 855. The circuit court erred in holding that Mr. Kersey was not part of a public body and thus was not bound by the Act’s general requirements. As an employee of that public body, Mr. Kersey was required to respond in writing to Mr. Connell’s request within five working days of receiving it. Code § 2.1-342(B). By failing to make any written response in that period, Mr. Kersey violated the provisions of the Act. Code § 2.1-342(E). Furthermore, as Mr. Connell did not agree to production of a summary in response to his request, Mr. Kersey also was obliged to provide actual records responsive to the request. Code § 2.1-342(D). He failed to meet this obligation under the Act. Mandamus is the appropriate remedy for Mr. Kersey’s violation of the Act’s requirements. Code § 2.1-346(A).

E. Requiring the Commonwealth’s Attorney’s Office to comply with the Act would not adversely affect its law enforcement functions.

In denying Mr. Connell’s motion to reconsider, the circuit court raised the spectre of harm that would result if the Commonwealth’s Attorney’s Office were deemed to be a public body, and thus required to hold public meetings pursuant to Code § 2.1-343. The open meeting requirements applicable to public bodies would not hinder the Commonwealth ’s Attorney’s law enforcement efforts.

As with the Act’s record disclosure requirements, there are important safeguards that balance the public’s right of access and the government’s legitimate need for confidentiality so as to prevent the very harm that concerned the circuit court. Code § 2.1-344 authorizes certain types of meetings to be closed to the public, and is analogous to the public record exclusions found in Code §§ 2.1-342.01 and 2.1-342.2. For example, Code § 2.1-344(A)(7) authorizes a public body to close a meeting held for the purpose of

Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body . . .

Discussions by the Commonwealth’s Attorney regarding pending or possible litigation would not be subject to the open meetings requirement. Subparagraph 7 exempts all of the Commonwealth’s Attorney’s meetings dealing with actual law enforcement matters. As the open meeting requirement extends only to the public body itself and not meetings among its employees, the public is properly excluded from meetings between Assistant Commonwealth ’s Attorneys.^[fn5]

In the 1999 reorganization of the Act, the General Assembly separated all of the disclosure exemptions from the general procedural requirements for responding to requests under the Act. In so doing, the General Assembly did not intend to exclude law enforcement officials from the Act’s procedural mandates in responding to requests for criminal records. As prior to reorganization, the procedural requirements apply to all requests under the Act. The circuit court reached a contrary conclusion by applying an unreasonable construction of the term "public body" to exclude constitutional officers generally and Commonwealth’s Attorneys in particular. The circuit court’s error thwarts the stated intention of the General Assembly to provide public access to the government’s law enforcement efforts, and this Court should reverse the judgment of the circuit court.

II. Code Section 2.1-342.2 requires law enforcement officials to produce actual criminal records and not merely summaries.

Because the circuit court deemed the procedural requirements of Code § 2.1-342 to be inapplicable to requests for criminal records, the circuit court held that Mr. Kersey’s disclosure obligations were limited to those provided in Code § 2.1-342.2. That section, according to the circuit court’s interpretation, requires that merely a summary of relevant documents be provided,^[fn6] within "a reasonable time," rather than production of actual records with five working days as specified in Code § 2.1-342. Even if the circuit court were correct in reading Code § 2.1-342.2 wholly separate from the Act’s procedural requirements, the court ignores the plain language of that section which requires the production of actual records.

Rather than listing in the body of an exemption that which must be disclosed, as was done prior to the 1999 reorganization,^[fn7] Code § 2.1-342.2(B) commands that "Law enforcement officials shall make available upon request criminal incident information relating to felony offenses."^[fn8] "‘Law enforcement official’ includes attorneys for the Commonwealth." Id. "Criminal incident information "

means a general description of the criminal activity reported, the date and general location the alleged crime was committed, the identity of the investigating officer, and a general description of any injuries suffered or property damaged or stolen.

Code § 2.1-342.2.^[fn9]

In addition to the disclosure of criminal incident information required by Code § 2.1-342.2(B), Code § 2.1-342.2(G)^[fn10] states that "[r]ecords kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to the provisions of this section . . ." and thus must be disclosed. Code § 2.1-342.2(G). These records consist of "personnel, arrest, investigative, reportable incidents, and noncriminal incidents records." Code § 15.2-1722. "Investigative records" are defined in relevant part as "the reports of any systematic inquiries or examinations into criminal or suspected criminal acts which have been committed . . ." "Noncriminal incidents records" are "compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths." "Reportable incident records" are "a compilation of complaints received by a law-enforcement agency and action taken by the agency in response thereto. " Code § 15.2-1722(B).

Mr. Connell explicitly relied upon both Code § 2.1-342.2(B) and Code § 2.1-342.2(G) in forming his request for "any and all personnel, arrest, investigative, reportable incidents and noncriminal incidents records, as defined by Code § 15.2-1722, as well as any other records containing criminal incident information, as defined in Code § 2.1-342.2." In denying Mr. Connell’s petition seeking the production of original documents, the circuit court considered the request to have sought only "criminal incident information" pursuant to Code § 2.1-342.2(B), and ignored the portion of the request based upon Code § 2.1-342.2(G). Nowhere in its letter opinion does the circuit court address the clear directive of Code § 2.1-342.2(G) which requires disclosure of "Records kept by law enforcement agencies pursuant to § 15.2-1722" (emphasis added) – specifically personnel, arrest, investigative, reportable incidents and noncriminal incidents.

Even if the circuit court were correct in its view that the provision requiring disclosure of "criminal incident information" did not require the production of actual records (which it was not, as is argued below), the circuit court, nevertheless, erred in holding that Mr. Kersey was obligated only to provide a summary, because Code § 2.1-342.2(G) explicitly requires the production of actual records. Furthermore, none of the exemptions to disclosure set forth in Code § 2.1-342.2(G)(1) through (3) justify a complete withholding of the documents requested by Mr. Connell.^[fn11] To the extent that the police officer’s investigative report contained "identifying information of a personal, medical or financial nature . . . the release of [which] would jeopardize the safety or privacy of any person", the exemption from disclosure applies only to "[t]hose portions" of the record, and not the entire record. Code § 2.1-342.2(G)(1).

A review of the other provisions of Code § 2.1-342.2 undermines the circuit court’s conclusion that the Commonwealth’s Attorney’s obligation to provide "criminal incident information" does not require the production of actual records. A number of exemptions to disclosure are contained within Code § 2.1-342.2(F), which states that "The following records are excluded from the provisions of this chapter . . ." (emphasis added). The following six numbered subparagraphs describe various types of records and documents which need not be disclosed. Had the General Assembly intended the release only of summary information rather than actual – albeit redacted – documents, each of the subparagraphs of Code § 2.1-342.2(F) would be meaningless because none of the documents described therein would ever be released pursuant to the Act.

It is a well-settled rule of statutory construction that courts should give meaning to all provisions of the statute. See, e.g., Lucy v. County of Albemarle, 258 Va. 118, 129-130, 516 S.E.2d 480, 485 (1999). The fact that the General Assembly provided that certain records are exempt can only lead to the conclusion that other records are not exempt. For example, Code § 2.1-342.2(F)(1) exempts from disclosure "[c]omplaints, memoranda, correspondence and evidence relating to criminal investigation or prosecution other than criminal incident information as defined in subsection A." By its very terms, subparagraph (F)(1) negates the exemption for those types of records which constitute criminal incident information. The circuit court erred, therefore, in concluding that the General Assembly "envisioned that a criminal incident information would consist of a summary" rather than original records.

Lastly, the General Assembly’s express purpose in enacting the Virginia Freedom of Information Act was to "ensure[ ] the people of the Commonwealth ready access to records in the custody of public officials ." Code § 2.1-340.1(emphasis added). Except when a statutory exemption is exercised, "all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open . . . ." Id.(emphasis added). "Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld" unless exempt by law. Id. (emphasis added). Public officials are urged to reach agreements regarding "the production of the records requested." Id. (emphasis added). The circuit court’s decision ignores the clear intent expressed by the General Assembly that citizens obtain actual records.

Because the circuit court held the Act’s general procedural requirements to be inapplicable, and because Code § 2.1-342.2 is silent regarding the time in which law enforcement officials must respond to a request, the circuit court held that a response must be made within a "reasonable time." The circuit court deemed Mr. Kersey’s summary response 21 days after receiving the request to be reasonably prompt. Even if the circuit court were correct in its view that the procedural requirements of Co