SUPREME COURT OF VIRGINIA
391 S.E.2d 309, 239 Va. 515
April 20, 1990
Donald Lemond v. Barbara H. McElroy
Appeal from a judgement of the Circuit Court of the City of
Richmond. Hon. Melvin R. Hughes, Jr., judge presiding.
Guy W. Horsley, Jr., Assistant Attorney General (Mary Sue Terry,
Attorney General; K. Marshall Cook, Senior Assistant Attorney
General; Gregory J. Haley, Assistant Attorney General; Michael A.
Likavec, Assistant Attorney General, on briefs), for appellant.
Terence P. Ross (Gary M. Kramer; Gibson, Dunn & Crutcher, on
brief), for appellee.
Amicus Curiae Virginia Press Association and Virginia
Association of Broadcasters (Alexander Wellford; David C. Kohler;
Christian, Barton, Epps, Brent & Chappell, on brief), for
The Honorable Justice Compton delivered the opinion of the
The opinion of the court was delivered by: Compton
A trial court order granting access to a settlement agreement
and financial statements reflecting the amount paid out of public
funds to settle a lawsuit against a sheriff under the Virginia
Freedom of Information Act sec. 2.1-342(B)(6) is affirmed.
This is a mandamus proceeding filed in the trial court under the
Virginia Freedom of Information Act, Code secs. 2.1-340.1 through
-346.1 (the Act). The only record provided on appeal is a letter
from petitioner to certain public officials including the Attorney
General of Virginia, a response of the Attorney General, the
petition for a writ of mandamus, the transcript of a brief hearing
at which no evidence was presented, and the order of the trial
court awarding mandamus.
From this sparse record, the following facts can be ascertained.
In April 1986, one Cassandra Jones was detained erroneously at the
Alexandria, Virginia, courthouse by the local sheriff.
Subsequently, Jones sued the Sheriff, and the case was settled.
Pursuant to the settlement, a sum of money was paid Jones from
public funds on behalf of the Sheriff. The settlement agreement was
not filed among the court papers.
By letter dated September 19, 1989, in anticipation of a
forthcoming Alexandria sheriff's election, Barbara H. McElroy, an
Alexandria resident, made a request under the Act to Donald LeMond,
Director, Division of Risk Management, Department of General
Services, Commonwealth of Virginia. McElroy asked for the
opportunity to inspect and copy the following documents:
"The settlement agreement entered into in the lawsuit brought by
Ms. Cassandra Jones against the city of Alexandria and James
Dunning, Sheriff, based on her erroneous detention at the
Alexandria courthouse in April, 1986.
"Any documents, (including, but not limited to cancelled checks,
ledgers, accounting records and financial statements), which
reflect the amount of the settlement reached in the aforementioned
By letter dated September 21, 1989, the Attorney General
responded to McElroy's request and stated that LeMond was the
custodian of the documents sought. The Attorney General wrote,
however, that the documents are exempt from the mandatory
disclosure requirements of the Act pursuant to Code sec.
2.1-342(B)(6), and stated that the documents would not be released
The exemption in (B)(6) excludes from the Act's provisions the
following documents, as pertinent to this case: "Memoranda, working
papers and records compiled specifically for use in
On October 19, 1989, McElroy filed the instant petition for a
writ of mandamus against LeMond in the court below asking that an
order be issued against LeMond compelling him to permit her "to
inspect and copy those documents described in Petitioner's
September 19, 1989 letter." Filed with the petition for mandamus
was a notice for a hearing to be held six days later.
LeMond filed no responsive pleading, but counsel for both
parties appeared for the hearing on October 25, LeMond being
represented by an assistant Attorney General. At the beginning of
the hearing, McElroy's attorney stated that his client was "seeking
to determine the amount of taxpayers' money used in that settlement
of that lawsuit." Following factual representations and argument by
counsel, the trial court ruled from the bench and granted the
petition. The order appealed from was entered on that day and
directed LeMond to permit McElroy "to inspect and copy all records
and documents requested in her letter of September 19, 1989 that
are in his custody within three days from the date of this order."
We awarded LeMond this appeal on October 27 and granted his motion
to stay execution of the writ of mandamus pending appeal.
LeMond's assignment of error raises the question whether "the
settlement agreement" and "implementing documents" are exempt
pursuant to (B)(6) from the mandatory disclosure provision of the
Act. But the parties do not agree completely on just what documents
are in issue.
Unfortunately, neither party, nor the trial court, sought to
have the documents produced for the court's in camera inspection in
order to determine the precise nature of the records. On brief, the
Attorney General states that LeMond is the custodian of the
following records that pertain to McElroy's request:
"(1) a copy of the settlement agreement that resulted in the
dismissal of the case styled Cassandra Jones v. James Dunning,
Sheriff, (Case No. 870385-A), in the United States District Court
for the Eastern District of Virginia, Alexandria Division; (2) a
payment request made by LeMond's Division for the final settlement
check to be drawn, showing the amount of the check and to whom the
check is to be made payable; and (3) a computer sheet showing the
amount paid as a result of the Cassandra Jones settlement."
At the bar of this Court, McElroy's counsel was asked whether
the focus of our decision should be confined to the foregoing
items. Counsel responded that the trial court's order,
incorporating by reference the broad and limitless language of
McElroy's letter request, should be affirmed. Counsel said,
however, that McElroy "would rely on the Attorney General to be
forthright in determining what documents met that order."
Consequently, we apparently are confronted with basing our decision
on a "settlement agreement," a payment request for a settlement
check to be drawn, and a computer sheet showing the amount paid in
The Attorney General argues that the plain language of the
exemption excepts the documents in issue. Contending that a
settlement agreement is prepared and entered into by litigants for
a single purpose, to bring an end to pending litigation, the
Attorney General says there is "quite simply, no non-litigation
purpose for preparing and executing a settlement agreement." The
Attorney General argues that the exception for litigation records
in (B)(6) "reflects the policy judgement of the General Assembly
that public litigants should participate in the adversarial process
on a level playing field with private litigants and conduct
litigation in a businesslike manner, with the full range of options
and flexibility that would be available to private litigants
generally." According to the Attorney General, "The concept of
'litigation' embraces the entire adversarial process, from the
investigatory phase through the final disposition of the case,
which necessarily occurs either by adjudication or settlement."
Additionally, the Attorney General points to a formal Attorney
General's opinion issued in November 1988, in the midst of a joint
legislative study of the provisions of the Act. Addressing whether
a confidential settlement agreement entered into by a public body
is protected from disclosure by (B)(6), the opinion stated:
"Although a settlement agreement is not compiled exclusively for
use in litigation, it is my opinion that it is compiled
specifically for use in litigation to resolve an existing dispute
and to memorialize and evidence the terms of that resolution."
1987-88 Op. Att'y Gen. 35, 36. The Attorney General argues that the
General Assembly presumably acquiesced in the opinion's conclusion
with respect to the scope of the exclusion when it amended the Act
during the 1989 Session and left (B)(6) undisturbed.
McElroy, supported by brief amicus curiae of the Virginia Press
Association and the Virginia Association of Broadcasters, contends
that the narrow construction of the exemption mandated by sec.
2.1-340.1 of the Act requires that the documents in issue be
disclosed. LeMond asserts: "Settlement agreements... are not part
of the litigation process. Rather, they are contracts between
parties terminating a dispute, in effect, an alternative to
litigation. This is particularly true where, as here, the
settlement agreement is not filed with the court." Additionally,
McElroy contends that the "accounting records reflecting payment of
a settlement that are compiled in the ordinary course of business
to record the expenditure of public funds are even further removed
from the litigation process and plainly not 'compiled specifically
for use in litigation.'"
Also, McElroy notes, the Attorney General's opinion "addresses
only settlement agreements and provides no support to LeMond for
his withholding of the accounting records requested by McElroy."
Saying that an Attorney General's opinion is not controlling
authority, merely an aid in discerning legislative intent, McElroy
contends that the language of (B)(6) is plain and unambiguous and
that resorting to rules of statutory construction is unnecessary.
Under the "plain meaning" rule, McElroy argues, the usual and
ordinary use of the phrase "compiled specifically for use in
litigation" means that settlement agreements not filed with a court
and associated accounting records do not fall within that
Further, McElroy argues that even if it is appropriate to embark
on an attempt to discern legislative intent, the November 1988
opinion provides no help. McElroy, attaching to her brief excerpts
from minutes of the legislative subcommittee's meetings, contends
that the study had been substantially completed before the opinion
was issued. Thus, she says, the joint subcommittee did not consider
the opinion during its deliberations.
First, we address the "settlement agreement" issue. Presented
with persuasive arguments on both sides of this important question,
we refuse to decide the issue in a vacuum, without any idea of the
precise nature of the document with which we are dealing. We do not
know whether we are ruling on a one-sentence writing, whether we
are speaking to a boilerplate general release form, whether we are
concerned with a detailed, multi-page settlement contract, or
whether the document is some other kind of official record which
includes recitals about the merit, or lack of same, of the
controversy. The parties, by merely stipulating that a "settlement
agreement" is involved, have done no more than ask us for an
advisory opinion unsupported by any documentary record whatever.
Routinely, confidential records are filed for in camera inspection
by a trial court and, if necessary, by an appellate court. See
Commonwealth v. Edwards, 235 Va. 499, 510-13, 370 S.E.2d
296, 302-04 (1988). At the very least, a precise description of the
document that would not reveal its terms verbatim should be made a
part of the record. At the trial level, it was incumbent upon the
litigants to make an appellate record, if an appeal was
anticipated. This was not done, and that failure has prevented
appellate review of the question.
This means, on the "settlement agreement" issue, that the trial
court's ruling stands but without our approval. The ruling will not
be reversed because the responsibility for presenting an adequate
appellate record is upon the appellant who seeks reversal of the
Second, with regard to the accounting records, we likewise do
not have these items for in camera inspection. But we do have a
precise description of the items which are sought and which are
being withheld: a payment request made by LeMond's Division for the
final settlement check to be drawn, showing the amount of the check
and to whom the check is to be made payable; and, a computer sheet
showing the amount paid as a result of the Cassandra Jones
settlement. Assuming, without deciding, that the "settlement
agreement" is exempt from disclosure under (B)(6), we hold that
these accounting records nevertheless must be produced for
inspection and copying.
Even if we were to adopt the Attorney General's view that
settlement is "one dimension of litigation," we conclude
nonetheless that the accounting records in dispute are not
documents "compiled specifically for use in litigation," construing
the exemption narrowly according to its plain meaning. These are
documents generated in connection with the payment process, after
the mutual agreement to settle. The request for the settlement
check was prepared to execute the settlement agreement, and the
computer sheet recorded the expenditure of public funds.
For these reasons, the order of the trial court will be
affirmed. The case will be remanded for an appropriate modification
of the deadline for inspection and copying of the records and for
service of the writ of mandamus upon LeMond.
Affirmed and remanded.