October 23, 2003

Ms. Rebecca K. Glenberg, Legal Director
American Civil Liberties Union of Virginia
Richmond, Virginia

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 correspondence of September 16, 2003 and October 20, 2003.

Dear Ms. Glenberg:

You have asked a question concerning the Virginia Department of Corrections' (DOC) response to your records request under the Virginia Freedom of Information Act (FOIA).

You indicate that on August 19, 2003, you submitted a FOIA request to DOC for all records relating to "(1) Protocols and procedures for the execution of prisoners by lethal injection; (2) Protocols and procedures for the execution of prisoners by electrocution." On August 26, 2003, DOC responded in writing, stating that it was withholding the requested records pursuant to subdivision A 69 of § 2.2-3705 of the Code of Virginia because they were security procedures, the release of which would jeopardize the security of the building or the safety of persons using the building. DOC provided you with a document titled "History of Executions in Virginia" and a copy of relevant portions of the Code of Virginia relating to executions. You indicate that you sent a second letter to DOC on September 2, 2003. You requested that DOC provide you with the volume and subject matter of the withheld records as required by subdivision B 2 of § 2.2-3705, or that DOC redact the requested records and provide you with non-exempt portions pursuant to subdivision B 3 of § 2.2-3705. DOC responded, again asserting the procedures and protocols were wholly exempt pursuant to subdivision A 69 of § 2.2-3705, and noted that the withheld procedure is thirty pages long . You ask if the requested records fall under the exemption at subdivision A 69 of § 2.2-3705, and whether DOC is required to provide redacted copies of the requested records instead of withholding them in their entirety.

Subsection A of § 2.2-3704 states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. Subdivision A 69 of § 2.2-3705 sets forth an exemption that allows the records custodian to withhold, in his discretion, [e]ngineering and architectural drawings, operational, procedural, tactical planning or training manuals, or staff meeting minutes or other records, the disclosure of which would reveal surveillance techniques, personnel deployments, alarm or security systems or technologies, or operational and transportation plans or protocols, to the extent such disclosure would jeopardize the security of any governmental facility, building or structure or the safety of persons using such facility, building or structure.

The Virginia Freedom of Information Advisory Council has previously opined that not all procedures and protocols developed by DOC would automatically fall under the exemption at subdivision A 69 of § 2.2-3705.¹ The exemption at issue does not exempt all procedural records solely because they may be related to security issues. Instead, the exemption applies only to those records where disclosure would jeopardize the security of the building or the safety of persons using the building. In this instance, DOC has determined that that protocols and procedures relating to the execution of prisoners relate to the safety of both employees as well as other prisoners at the facility. Therefore, it appears that DOC has properly exercised its discretion in choosing to exercise this exemption and withhold the requested records.

You next ask if DOC is required to provide redacted copies of the protocols and procedures, instead of withholding the records in their entirety. Subdivision B 3 of § 2.2-3704 states that [w]hen a portion of a requested record is withheld, the public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record. The law contemplates that it is possible to have exempt and non-exempt information co-mingled in a single record, in which case the non-exempt portion of the record must still be provided to the requester. Although I have not seen the protocols and procedures relating to executions, it is feasible that all portions of the requested documents are properly subject to the cited exemption. Therefore, the issue of redaction is not relevant in the instant case.

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

Sincerely,

Maria J.K. Everett
Executive Director

¹ Virginia Freedom of Information Advisory Opinion 13 (2002).