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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
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