December 18, 2000
Mr. C. Dean Foster, County Attorney
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
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.
F. The following records are excluded
from the provisions of this chapter, but may be disclosed by the
custodian, in his discretion, except where such disclosure
is prohibited by law:
1. Complaints, memoranda, correspondence and evidence
relating to a criminal investigation or prosecution...
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
Thank you for contacting this office. I hope that I have been of
Maria J.K. Everett
1. Lawrence v. Jenkins, 258 Va. 598
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.