FOI Advisory Council Opinion AO-08-13

November 7, 2013

Mike Mather
WTKR Television
720 Boush Street
Norfolk, Virginia  23510

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 electronic mail of September 30, 2013.

Dear Mr. Mather:

You have asked four specific questions regarding access to certain law enforcement records under the Virginia Freedom of Information Act (FOIA), detailed separately below.  As background to your questions, you stated that a driver crashed his car head-on into another car, killing a mother and her daughter.  You indicated that court records showed that a man by the same name as the driver, as identified by the State Police, had been convicted of a variety of driving, drug, and criminal offenses.  You requested from the State Police the date of birth (DOB) for the driver involved in the crash in order to confirm that it was the same person as in the court records.  You stated that the State Police, apparently treating your request for DOB as a FOIA request for public records,1  replied as follows: "As of July 1, 2013, Virginia FOIA changed and DOBs are defined as personal information.  VSP no longer releases the DOB of an individual."  The response cited §§ 2.2-3705.1(10) and 2.2-3706(B) as the sections that had changed.  You asked for more information and were told that the DOB held by the State Police

is either in an administrative, non-criminal record, which would be personal identifying information exempt under 2.2-3706(B), or it would be is either in an administrative, non-criminal record, which would be personal identifying information exempt under 2.2-3706(B), or it would be in our criminal investigative file exempt under 2.2-3706(A)(2)(a).  In either case we will exercise our discretion not to release that information other than full name and age.  The requirement to release information relative to the identity of an adult who is arrested under 2.2-3706(A)(1)(c) does not spell out what information must be provided.  VSP provides name and age only.

The reply continued by specifying that the DOB would be included on the FR 300 Crash Report, but that the State Police

are no longer authorized to release the FR 300 or any information contained on it.  In fact the press could not get a copy of the report unless they were involved in the crash and the 46.2-379 information does not include date of birth.  Even so only the 'Department' referring to DMV [the Department of Motor Vehicles], can release 46.2-379 information.

Given this background, you also expressed that DOB is a valuable tool to match accused criminals with criminal histories recorded in court records, and that without DOB, it will be more difficult to identify people charged with crimes.

Turning to your first question, you asked whether any "2013 legislative changes to FOIA either define dates of birth as personal information not subject to release, or prohibit law-enforcement from releasing a suspected criminal's date of birth."  FOIA does not contain any definition of personal information, nor does FOIA contain the phrase date of birth.  However, note that a different exemption does refer to a definition of personal information in the Government Data Collection and Dissemination Practices Act (GDCDPA).2   The only prohibition on release contained in FOIA is set forth in subdivision A 3 of § 2.2-3706: The identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed.  There was no FOIA legislation in 2013 that defines personal information or prohibits the release of DOB.  However, note that § 2.2-3706 was reorganized in 2013 pursuant to Senate Bill 12643  which was sponsored by the FOIA Council after three years of study.  As stated in the summary of that bill, the

only substantive changes in the bill are to (i) expand to the state law-enforcement agencies the ability to withhold portions of noncriminal incident information and (ii) allow law-enforcement agencies to make a verbal response for requests for criminal incident information. The bill also clarifies that personnel records of persons employed by a law-enforcement agency are not noncriminal records but subject to the personnel records and background investigation records exemptions. The bill contains technical amendments and is a recommendation of the Virginia Freedom of Information Advisory Council.

SB 1264 does not contain any definition of personal information, nor does it prohibit the release of personal information, except as quoted above in subdivision A 3 of § 2.2-3706.  Therefore the answer to your first question is no.4

Your second question asked whether a criminal's date of birth is defined as personal identifying information under subsection B of § 2.2-3706.  As stated above, FOIA does not contain any such definition, therefore the answer is again, no.  However, as you expressed in your inquiry, DOB can be used as personal identifying information, especially to differentiate between individuals with the same name.  Therefore even though FOIA does not define personal identifying information explicitly, it is clear that DOB may in fact be used to identify an individual.  Note that subsection B of § 2.2-3706 provides that those portions of noncriminal incident or other noncriminal investigative reports or materials that contain identifying information of a personal, medical, or financial nature may be withheld where the release of such information would jeopardize the safety or privacy of any person.  Therefore, in the context of noncriminal records, DOB may be withheld as identifying information of a personal nature if the release of DOB would jeopardize the safety or privacy of any person. 

Third, you asked whether an arrestee's date of birth would be exempt from release under subsection A 2 a of § 2.2-3706.  That subsection exempts from mandatory disclosure

Criminal investigative files, defined as any documents and information, including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation or prosecution, other than criminal incident information subject to release in accordance with subdivision 1 a.

There is no special provision regarding DOB in this exemption, nor any specific mention of DOB whatsoever.  A criminal investigative file that is exempt under this provision is exempt in its entirety, whether it contains DOB or not.  Note that the prefatory language of subdivision A 2 provides that the exempt records may be disclosed by the custodian, in his discretion, except where such disclosure is prohibited by law.  Therefore, the custodian could choose to release DOB or other information from criminal investigative files, in his discretion, but is not required to do so.

 Fourth, you asked whether State Police crash reports, specifically the "FR-300" cited, are exempt from release in their entirety.  This office has no specific knowledge regarding the crash reporting forms used by the State Police, nor does FOIA specifically address motor vehicle accidents.  However, you indicated that the response you received cited Virginia Code § 46.2-379.  While that provision is outside of FOIA, and therefore outside the advisory authority of this office, it is my understanding that it does address access to motor vehicle accident reports, and that it was amended through legislation in 2013.  Section 46.2-379 reads as follows:

All accident reports made by investigating officers shall be for the confidential use of the Department [of Motor Vehicles] and of other state agencies for accident prevention purposes and shall not be used as evidence in any trial, civil or criminal, arising out of any accident. The Department shall disclose from the reports, on request of any person, the date, time, and location of the accident, and the names and addresses of the drivers, the owners of the vehicles involved, the injured persons, the witnesses, and one investigating officer.

While this office cannot interpret this section, it is clear on its face that it requires the disclosure of certain information, but that the information required to be disclosed does not include DOB.  Also note that this provision does not state that the Department of Motor Vehicles (DMV) shall release the accident report itself, but only that DMV shall disclose from the reports certain information.

Finally, you also asked whether the release of a name and age sufficient to satisfy the requirement to release [i]nformation relative to the identity of any individual, other than a juvenile, who is arrested and charged under subsection A 1 c of § 2.2-3706 .  As indicated in the reply from the State Police, FOIA does not specify what information must be provided relative to the identity of any individual...who is arrested and charged.  As a practical matter, the type and amount of information a law-enforcement agency might have about an individual who has been arrested and charged may often vary in different circumstances.  However, even without an explicit statutory definition, there does not appear to be any question that an individual's DOB is information relative to the identity of that individual.  Therefore, in a criminal context where an adult has been arrested and charged, if the law-enforcement agency has the arrestee's DOB, that is the type of information subject to mandatory release under subsection A 1 c § 2.2-3706.  Note that this provision of FOIA does not require the release of a specific type of record, only the information relative to the identity of any individual, other than a juvenile, who is arrested and charged

 In this instance, I note that you did not specify whether the driver involved in the crash was arrested and charged with a crime.  That is an important fact to consider.  If he was not arrested and charged, and the matter is handled as a noncriminal incident, then the State Police may withhold the driver's DOB pursuant to subsection B of § 2.2-3706, as discussed above.  However, that subsection would not apply if the driver was arrested and charged with a crime.  In that case, while the State Police could correctly withhold criminal investigative files in their entirety, the driver's DOB would have to be released because it is information relative to the identify of an adult arrestee.  Note that the provisions of subdivision A 1 of § 2.2-3706 are required releases, including the requirement to release information relative to the identity of adults arrested and charged.  By contrast, the provisions of subdivision A 2 are exemptions that allow for release in the discretion of the custodian.  Because the provisions of subdivision A 1 are mandatory, and those of subdivision A 2 are discretionary, any conflict between them must be resolved in favor of mandatory release.  This result comports with the policy statement of FOIA in § 2.2-3701:

The provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities and afford every opportunity to citizens to witness the operations of government. Any exemption from public access to records or meetings shall be narrowly construed and no record shall be withheld or meeting closed to the public unless specifically made exempt pursuant to this chapter or other specific provision of law.

Therefore while a criminal investigative file does not have to be released, the DOB of an adult arrestee must be released upon request, if the law-enforcement agency has that information. 

Your inquiry has also raised questions regarding the interpretation of the phrase information relative to the identity of any individual  as used in subsection A 1 c of § 2.2-3706.  Typical identifiers may include such things as name, residential address, race, gender, DOB, height, weight, eye color, hair color, and other information.5   However, the phrasing information relative to the identity of any individual does not specify exactly what information must be released.  Applying the policy of FOIA that the provisions of this chapter shall be liberally construed to promote an increased awareness by all persons of governmental activities, it would appear that compliance with this policy would require a law-enforcement agency to fully disclose all information that the law-enforcement agency has relative to the identity of any adult who has been arrested and charged.  If the members of the General Assembly disagree with this opinion or want to provide more clarity, they may wish to amend the language of this section. 

Finally, we also note that it is not entirely clear whether your original request specifically asked for public records containing the DOB of the driver, or merely asked the question of what was the DOB of the driver.  Keep in mind that FOIA specifically applies to requests to inspect or copy public records, but does not govern requests that do not ask for public records.  As a practical matter, where the goal is to confirm that the information you already have is correct, both parties might handle the situation more easily through a conversation and by providing verbal confirmation rather than treating it as a request for public records under FOIA.

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


      Maria J.K. Everett
      Executive Director


1. Note that if you simply asked for the driver's DOB, without asking to copy or inspect a public record, that would not be a FOIA request because FOIA only grants rights in the context of public records and public meetings.  FOIA does not require that public bodies answer questions outside of those contexts.  However, if you requested a document containing DOB, that would be a FOIA request.

2.  Subdivision 10 of § 2.2-3705.1 referring to the definition in § 2.2-3801; neither of these provisions was amended in 2013.

3.  2013 Acts of Assembly, c. 695.

4. Note that there are many exemptions that apply to records that contain personal information, such as exemptions for personnel records, scholastic records, health records, customer account records, and many more, but there is no general exemption that applies to personal information categorically.

5. Sample information taken from a Virginia Uniform Summons form VUS Rev. 7-01-12 and Circuit Court form CC-1302 Summons.