December 18, 2000

Mr. C. Dean Foster, County Attorney
Scott County
Gate City, VA 24251

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-mail of December 8, 2000.

Dear Mr. Foster:

You have asked whether the name of a complainant to the Natural Tunnel Soil and Water Conservation District ("the District") must be released to a requester under the Virginia Freedom of Information Act (FOIA).

Section 10.1-563 of the Code of Virginia prohibits any person from engaging in a land-disturbing activity until he has filed an erosion and sediment control plan with the District and the plan has been approved. Subsection A of §10.1-569 makes it a Class 1 misdemeanor to violate this provision. The Erosion and Sedimentation Control Administrator ("the Administrator") of the District would be the proper party to bring an enforcement action, which would be prosecuted by either the attorney for the Commonwealth or the county attorney. You indicate that a landowner within the District commenced bulldozing on his property without filing the requisite plan, and as a result the Administrator received complaints and issued a stop work order. The landowner is now requesting that the District release the names of the complainants.

FOIA requires that all public records be available for public inspection and copying unless otherwise specifically provided by law. Section 2.1-342.2 addresses disclosure of criminal records, and sets forth certain exemptions. Specifically, subsection F.1. reads:

The Supreme Court of Virginia reviewed a parallel provision of the law prior to the major revision of FOIA in 1999.[fn1] While addressing other issues relating to the procedural requirements of FOIA, the Court found that this exemption applied to complaints received by a county zoning administrator relating to zoning violations. The Court held that the zoning administrator properly exercised his discretion in applying the criminal investigation exemption to the requested documents. Although FOIA has been revised, this case would appear to be controlling.

In 1999, FOIA was substantially redrafted as a result of a yearlong study of its provisions. In the redraft of FOIA, the provisions relating to criminal records were consolidated into a single section,[fn2] but the portion addressing the release of complaints relating to criminal investigations remained substantially the same. The prior version of the law read, in part, that [m]emoranda, correspondence, evidence and complaints related to criminal investigations were excluded from the mandatory disclosure requirements of FOIA, but could be released by the custodian in his discretion.[fn3]

Neither the prior nor the current version of the law specifically define "criminal investigation" to limit its application to traditional law-enforcement officials. Other FOIA provisions relating to other types of criminal records, such as criminal incident information[fn4] or records relating to neighborhood watch programs,[fn5] specifically apply to those records in the hands of law-enforcement officials or agencies. However, both the prior and current versions of the criminal investigation exemption refer to custodians of complaints related to criminal investigations. This choice of language, in comparison with specific references to law enforcement in other provisions, indicates a legislative intent to include within the scope of the exemption records in the hands of any public entity related to a criminal investigation.

Because FOIA leaves the term "criminal investigation" undefined, rules of statutory construction dictate that it should be afforded its common meaning within the context of its usage.[fn6] A criminal investigation would be an investigation of an act considered by law to be a crime. Thus, the determination of whether a public official has engaged in a criminal investigation hinges on the punishment of the violation at issue. If the violation could result in criminal punishment, then the ensuing investigation would be criminal in nature, and the related records maintained by a public official would be criminal investigation records subject to the exemption. In the instant case, the penalty for not filing a plan with the District is a Class 1 misdemeanor -- a crime -- making the complaints criminal investigation records.

In conclusion, it would appear that the District Administrator, when conducting an investigation to determine if a criminal violation of § 10.1-563 has been committed, could properly withhold the records of the complaints leading to the investigation.

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

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1. Lawrence v. Jenkins, 258 Va. 598 (1999).

2. Report of the Joint Subcommittee Studying Virginia's Freedom of Information Act, House Document No. 106 (2000).

3. Va. Code Ann. § 2.1-342(B)(1) (Michie 1998) (current version at § 2.1-342.2(F)(1) (2000 Supp.).

4. Va. Code Ann. § 2.1-342.2 (B) (Michie 1998).

5. Va. Code Ann. § 2.1-342.2(F)(5).

6. Commonwealth Department of Taxation v. Orange-Madison Coop. Farm Service, 220 VA 655, 261 S.E. 2d 532 (1980), 1991 Op. Atty. Gen. Va. 140, 1988 Op. Atty. Gen. Va. 413, 1986-1987 Op. Atty. Gen. Va. 174; see generally Norman J. Singer, Statutes and Statutory Construction, 6th ed., §46:01.