Connell v. Kersey (NOTE: The Virginia Supreme Court affirmed this decision in June 2001, but the 2002 General Assembly added an amendment to FOIA reversing that decision and making clear that all constitutional offices are subject to FOI law.)
NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA
May 23, 2000
Michael F. Devine, Esquire
10511 Judicial Drive
Fairfax, Virginia 22030
Jack L. Gould, Esquire
10615 Judicial Drive
Fairfax, Virginia 22030
Re: James G. Connell, III v. Andrew Kersey, Al Law. No. 188052
This case arises under Virginia's Freedom of Information Act, Va. Code § 2.1-340, et seq. ("FOIA"). A hearing was held on May 19, 2000 on the writ of mandamus filed by petitioner James G. Connell III ("Mr. Connell" or the "petitioners') against Andrew J. Kersey ("Mr. Kersey" or the "respondent") and the respondent's demurrer and plea in bar. At that time the Court took the matter under advisement. The Court has now considered fully the pleadings and arguments of counsel. For the reasons stated below, the writ of mandamus will be denied as moot, the plea in bar will be overruled, and the demurrer will be sustained.
The facts of this case may be briefly summarized. The petitioner Mr. Connell is an assistant public defender in Fairfax County. The respondent Mr. Kersey is an assistant commonwealth's attorney. Mr. Connell is the counsel of record for the accused in a criminal case being prosecuted by Mr. Kersey styled as Commonwealth v. Ahmed Shireh, Criminal No. 97576.
The facts alleged in the petition for writ of mandamus are as follows:
On April 12, 2000, the date of the preliminary hearing in the case of Commonwealth v. Shireh, Mr. Connell saw Mr. Kersey holding a police report or reports containing criminal incident information about a carjacking allegedly committed by Mr. Shireh on March 21, 2000. On April 17, 2000, Mr. Connell hand-delivered and mailed to Mr. Kersey a written request for copies of:
any and all personnel, arrest, investigative, reportable incidents, and noncriminal incidents records, as defined in 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.
Mr. Kersey called Mr. Devine on April 17 upon receiving the request and the two discussed the requirements of FOIA.
On April 28, 2000, Mr. Connell's attorney wrote Mr. Kersey and asked again for the criminal incident information. Mr. Kersey was notified that if the documents were not forthcoming, Mr. Connell would seek a writ of mandamus. Further correspondence between Mr. Kersey and Mr. Connell's counsel ensued. By letter dated May 8, 2000, Mr. Kersey summarized the information contained in the police reports. As of May 9, 2000 (the date the petition for a writ of mandamus was filed), Mr. Kersey had not provided Mr. Connell with any original documents responsive to the request.
It is not disputed that Mr. Connell's client, Mr. Shireh, is presently incarcerated in the Fairfax County Adult Detention Center. It is also stipulated Mr. Connell is a Virginia resident.
Petition for Writ of Mandamus; Plea in Bar and Demurrer
Mr. Connell seeks a writ of mandamus to compel production of the criminal incident information, as well as a civil penalty for Mr. Kersey's willful violation of FOIA.
In response to the petition for a writ of mandamus, Mr. Kersey filed a plea in bar and a demurrer. In his plea in bar, Mr. Kersey argues that FOIA is not available to Mr. Connell as his client, Mr. Shireh, is presently incarcerated. In his demurrer, Mr. Kersey maintains that "complaints, memoranda, correspondence and evidence relating to a criminal investigation or prosecution" are exempt from disclosure under FOIA, citing Code § 2.1-342.2(F)(1). Third, Mr. Kersey argues in his demurrer that, although criminal incident information is subject to disclosure under FOIA, the law imposes no time limits for disclosure on commonwealth's attorneys, who are not members of a "public body." Similarly Mr. Kersey contends that he is not subject to a civil penalty for violation of FOIA because he is not a member of a public body.
A writ of mandamus is one remedy authorized when a person is denied rights granted by FOIA. A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. One of the elements necessary before a writ of mandamus issues is the clear right of the petitioner to the relief being sought. Lawrence v. Jenkins, 258 Va. 598, 602-3, 521 S.E.2d 526 (1999) (internal citations and quotations omitted).
The question for the Court therefore, is whether Mr. Connell has a clear right to the relief being sought. With respect to the plea in the bar, the Court disagrees with Mr. Kersey the FOIA is not available to Mr. Connell simply because his client, Mr. Shireh, is incarcerated. Mr. Kersey accurately quotes Code § 2.1-242.01(C) to the extent that it states that "no provision of this chapter shall be construed to afford any rights to any person incarcerated in a state, local or federal correctional facility." Mr. Kersey, however, fails to quote the remainder of that section, which states:
However, this subsection shall not be construed to prevent any incarcerated person from exercising his constitutionally protected rights, including, but not limited to, his rights to call for evidence in his favor in a criminal prosecution.
Therefore, it is not accurate to state, as Mr. Kersey does, that FOIA can never be invoked by incarcerated persons. If the Court were to accept Mr. Kersey's interpretation of FOIA, Mr. Shireh would be entitled to seek information under FOIA if he was able to post bond and remain unincarcerated pending trial, but he cannot resort to FOIA because he is (presumably) unable to post bond. Surely the General Assembly did not intend such an anomalous result, dependent in part on the financial resources of the criminal defendant. A more reasonable interpretation of Code § 2.1-242.01(C), when read in its entirety, is that FOIA is not available to an incarcerated person whose criminal prosecution has concluded. See e.g., Code § 2.1-342.2(F)(6) that exempts from disclosure "records of persons imprisoned in penal institutions in the Commonwealth provided such records relate to the imprisonment." For those reasons, the plea in bar will be overruled.
Although Mr. Kersey accurately quotes Code § 2.1-342.2(F)(1) that "complaints, memoranda, correspondence and evidence relating to a criminal investigation or prosecution" are exempt from disclosure, he fails to quote the remaining portion of that sentence that carves out an exception for "criminal incident information as defined in subsection 2.1-342.2(A). In other words, "criminal incident information" is subject to disclosure under FOIA, unless certain exceptions apply. "Criminal incident information" is defined as "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(A). Code § 2.1-342.2(B) provides that, upon request, a "law enforcement officer" shall disclose "criminal incident information" unless it would be "likely to jeopardize an ongoing investigation or prosecution, or the safety of an individual; cause a suspect to flee or evade detection; or result in the destruction of evidence...." Mr. Kersey makes no allegation that the criminal incident information sought by Mr. Connell is exempt from disclosure under subsection (B).
Furthermore, the statutory definition of a "law enforcement official" who must disclose "criminal incident information" (unless exempt) specifically includes commonwealth's attorneys. Code § 2.1-342.2(A).
Finally, the Court rejects Mr. Kersey's argument that criminal discovery is governed exclusively by Rule 3A:11 of the Rules of the Supreme Court of Virginia, which controls over any contrary provision of FOIA. Code § 342.2(H) expressly provides that in the event of any conflict between § 2.1-342.2 as it relates to requests made under that section and other provisions of law "this section shall control."
In short, the Court concludes that the commonwealth's attorney is required to disclose to a defendant, whether or not incarcerated prior to trial, "criminal incident information" unless it is subject to one of the exemptions in Code § 2.3-342.2(B).
Mr. Kersey maintains that he has provided criminal incident information in his May 8, 2000 letter to Mr. Connell's attorney. In that letter, Mr. Kersey summarized the police report(s), and included a general description of the alleged offense, the location of the alleged offense, the name of the investigating officer, and the fact that the victim claimed no injury or property loss. Mr. Connell argues that he is entitled to the original documents pursuant to which Mr. Kersey prepared his May 8 letter. Code § 2.1-242(D) provides that no "public body" shall be required to "create a new [public-] record if the record does not already exist" but "a public body may abstract or summarize information under such terms and conditions as agreed between the requester and the public body." Mr. Connell has agreed to nothing but disclosure of the original documents which taken together comprise the criminal incident information related to his client's pending charge. The Court disagrees with Mr. Connell's argument for two reasons. First, as the Court interprets FOIA, a criminal incident information under Code §2.1 342.2(A) is not synonymous with a "public record" as defined in Code § 2.1-341. By its very definition, a criminal incident information is a "general description" of the crime alleged, the "general location" of the crime, and a "general description" of the injuries or loss suffered as a result of the crime. The General Assembly clearly envisioned that a criminal incident information would consist of a summary as prepared by Mr. Kersey rather than the original police reports or victim or witness statements that Mr. Connell seeks.
Secondly, the Court agrees with Mr. Kersey that the commonwealth's attorney's office is not a "public body" as that term is defined in Code § 2.1-341. Under that code section, a "public body" means "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 .. ." Mr. Kersey's office is not a legislative body, authority, board, bureau, commission, district or agency of the Commonwealth of Virginia or of Fairfax County. Instead, the commonwealth's attorney is a constitutional officer. Va. Cons. Art. VII, § 4. See also Hilton v. Amburgey, 198 Va. 727,96 S.E.2d 151 (1957); Burnett v. Brown, 194 Va. 103, 72 S.E.2d 394 (1952). The fact the commonwealth's attorney's salary is paid by public finds does not render the office a "public body" as that term is defined in FOIA.
In that the commonwealth's attorney's office is not a public body, Mr. Kersey is not subject to the five-day requirement for a response imposed by Code § 2.1-342. The Court concludes that the time periods imposed by that section apply to requests for "public records" made to "public bodies."
Similarly, because he is not a member of a public body, Mr. Kersey is not subject to the penalties imposed for violation of FOIA by Code § 2.1-346.1, which is limited to members of public bodies. Even if Mr. Kersey were subject to the penalties contained in Code § 2.1-346.1 by virtue of the cross-reference in that section to Code § 2.1-342.2, the Court finds that Mr. Kersey did not "willfully and knowingly" violate his obligations under FOIA. The Court concludes that Mr. Kersey complied with the requirements of Code § 2.1-342.2 within a reasonable time. Specifically, Mr. Kersey's letter to Mr. Connell's counsel dated May 8, 2000 satisfied his statutory duties under FOIA. It contains "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." As such, it is a criminal incident information.
The Court finds that Mr. Kersey, Mr. Connell and Mr. Connell's attorney embarked on a good faith effort to resolve the obligations of the commonwealth attorney's office under Code § 2.1-342.2, that Mr. Kersey complied with FOIA by disclosing a criminal incident information within a reasonable period of time, and that the writ of mandamus should therefore be dismissed as moot. The demurrer will be sustained to the extent it avers that the commonwealth's attorney's office is not a public body under FOIA, and that Mr. Kersey is not a member of a public body.
Will Mr. Gould please prepare an order reflecting the findings contained in this letter, circulate it to Mr. Devine for his endorsement and present it to the Court within ten days for entry?
(signed) Circuit Judge Jane Marum Roush