FOI Advisory Council Opinion AO-04-14

May 22, 2014

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 March 27, 2014.

Dear Mr. Mather:

            You have asked several questions regarding the treatment of suicide reports and related records under the Virginia Freedom of Information Act (FOIA).  The essence of your question is whether such records may be withheld as criminal investigative files.  The short answer is yes.  While most FOIA Council opinions are issued in letter form, due to the length of this opinion, section headings are used below to help organize the opinion and to improve readability.

Factual background and questions presented.

            As background, you stated that while working with the mother of a deceased juvenile, you requested that the police department provide you with the following three categories of records:

1.         All police reports for the death investigation of [the deceased juvenile].

2.         Any 911 calls, or other calls recorded concerning this case placed on 1/26/2011.

3.         All photographs or other media recorded at the scene.

You indicated that with your request you included a copy of Freedom of Information Advisory Opinion 10 (2003), which opined that a suicide report is a noncriminal incident report subject to disclosure under FOIA, but portions of the report of a personal, medical or financial nature may be redacted.  You also cited Va. Code § 15.2-1722, which defines "noncriminal incidents records" to mean compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths.  [Emphasis added.] 

            The police department denied your request in its entirety, initially citing the prohibition on the release of certain juvenile records found outside of FOIA in § 16.1-301.  You stated that you requested reconsideration in light of Freedom of Information Advisory Opinion 07 (2005), which addressed the interaction of § 2.2-3706 of FOIA with the prohibition of § 16.1-301 concerning the release of certain information concerning juveniles.  Your request was again denied.  However, after contacting the City Attorney's Office, you indicated that you were provided with a "basic police report" but further records were denied pursuant to the criminal investigative files exemption, subdivision A 2 a of § 2.2-3706.  That exemption provides as follows:

2. Discretionary releases. 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:

a. 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;

After further inquiry, the City Attorney's Office indicated that the police department conducted a criminal investigation to determine whether a crime occurred.  The reply stated that in this instance the conclusion was that the death was a suicide, which remains a crime in Virginia.  The City Attorney's Office further stated that § 15.2-1722 refers to compilations of records, but does not require "the City to release individual criminal investigative files or the documents contained therein."  Against this background, you have posed three questions:

1.         Are suicide reports and related documents subject to FOIA, or can they be withheld under a criminal investigations exemption?

2.         If a police agency has a policy to initially investigate all matters as criminal incidents, but then later determines no crime occurred, can the agency properly withhold reports of what is delineated in 15.2-1722 in perpetuity?

3.         If the answer to the above question is yes, then wouldn't 15.2-1722 and all FOIA opinions concerning it be therefore moot?  In other words, couldn't then any police agency essentially vacate the provisions of 15.2-1722 and nullify large blocks of FOIA by declaring every police call is rooted in a criminal investigation, no matter incident or the outcome?

FOIA policy and rules of statutory construction.

            Before addressing your specific inquiries, it may be helpful to present the policy of FOIA regarding how to construe exemptions, as well as other relevant rules of statutory construction.  The policy of FOIA in this regard is clearly set forth in subsection B of § 2.2-3700:

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.  [Emphasis added.]

The Supreme Court of Virginia has stated the following regarding statutory construction:

The primary objective of statutory construction is to ascertain and give effect to legislative intent. When a given controversy involves a number of related statutes, they should be read and construed together in order to give full meaning, force, and effect to each. Therefore we accord each statute, insofar as possible, a meaning that does not conflict with any other statute. When two statutes seemingly conflict, they should be harmonized, if at all possible, to give effect to both.[1]

The Court has also stated that in interpreting statutes, one is "bound by the plain meaning of that language and must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity."[2]

Whether suicide reports may be withheld as criminal investigative files.

            Addressing your first question, you asked whether suicide reports and related records are subject to FOIA or may be withheld pursuant to the criminal investigative files exemption.  Although you phrased it in the disjunctive as either a "public record" or "exempt," it is more accurate to separate the question into two distinct inquiries: (1) whether the records are "public records" subject to FOIA and (2) if they are public records, whether there is an exemption that would allow them to be withheld from public disclosure. 

Suicide reports are public records subject to FOIA.

            The definition of "public record" in § 2.2-3701 includes all writings and recordings that consist of letters, words or numbers, or their equivalent ... however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.  [Emphasis added.]  Following this definition, a suicide report and related documents prepared by a public body in the course of a death investigation would be public records subject to FOIA.  If they were not public records, the inquiry would end here, as they would not be subject to FOIA at all.  However, because these records are public records we must next ask whether they are subject to mandatory disclosure, or if there is any exemption that would allow them to be withheld.

Suicide reports may be withheld as criminal investigative files.

            In the case of suicide reports, it appears that there are two FOIA exemptions that could apply: the criminal investigative files exemption quoted previously and the noncriminal records exemption, subsection B of § 2.2-3706.  You asked whether suicide reports and related records may be withheld as criminal investigative files.  The short answer is that they can be so withheld because suicide remains a crime in Virginia, and therefore records of an investigation into a suicide fit within the plain language of the exemption as such records are documents and information, including complaints, court orders, memoranda, notes, diagrams, maps, photographs, correspondence, reports, witness statements, and evidence relating to a criminal investigation.  However, that short answer is incomplete without giving further consideration to the common law, the language of the noncriminal records exemption, prior case precedents and advisory opinions, and legislative history.

Suicide is a common law felony.

              To begin with the common law, my understanding is that the City Attorney's Office is correct in the assertion that suicide remains a crime in Virginia.  What constitutes a crime and related criminal law issues are outside the scope of FOIA, but my understanding is that suicide is a common law felony, even though it is not codified or enacted by statute.  Virginia Code § 1-201 addresses the common law as follows: The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.    The Supreme Court of Virginia has addressed the matter by stating as follows:

Although the General Assembly can abrogate the common law, its intent to do so must be plainly manifested. We are aware of only one legislative enactment that addresses suicide as a crime.   Code 55-4 provides that "[n]o suicide . . . shall work a corruption of blood or forfeiture of estate." Thus, although the General Assembly has rescinded the punishment for suicide, it has not decriminalized the act.  Suicide, therefore, remains a common law crime in Virginia as it does in a number of other common-law states.[3]

Note that there were three bills introduced to the 2014 Session of the General Assembly that would have decriminalized suicide, but none of those bills were enacted.[4]  Without action by the General Assembly, suicide remains a crime at common law.  Because suicide remains a crime, the records of a death investigation that concludes that suicide was the cause of death are criminal investigative files by statutory definition under subdivision A 2 a of § 2.2-3706, as quoted above.  Therefore suicide reports and related records may be withheld from mandatory disclosure as criminal investigative files.

Statutory conflict with the definition of noncriminal incidents records.

            Turning next to the noncriminal records exemption, subsection B of § 2.2-3706 reads as follows:

Noncriminal records. Records (i) required to be maintained by law-enforcement agencies pursuant to § 15.2-1722 or (ii) maintained by other public bodies engaged in criminal law-enforcement activities shall be subject to the provisions of this chapter except 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.

As you observed, the referenced § 15.2-1722 defines "noncriminal incidents records" to mean compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths.  [Emphasis added.]  As you also observed, this office has previously opined on suicide reports that

a suicide report would be subject to inspection and copying under FOIA as a noncriminal incident report required to be maintained pursuant to § 15.2-1722.  Certain portions of that report, such as the name of the person who committed suicide, may be withheld pursuant to subdivision G 1 of § 2.2-3706.[5]  However, the exemption only applies to those portions of the report of a personal, medical, or financial nature, and does not allow a law-enforcement agency to withhold the entire report just because it may contain some of this information.  Subdivision B 3 of § 2.2-3704 states that a public body may delete or excise only that portion of the record to which an exemption applies and shall release the remainder of the record. Therefore, the appropriate response under FOIA would be to release the report, but redact any personal, medical, or financial information.[6]

Thus it appears there is a conflict in the law in that suicide is a crime at common law, and therefore records of a suicide investigation are criminal investigative files as defined in subdivision A 2 a of § 2.2-3706, yet the same records are noncriminal incidents records  as defined in § 15.2-1722 and referenced in subsection B of § 2.2-3706.  In this instance, it does not appear possible to give effect to both statutory definitions as one defines suicide reports as criminal investigative files and the other defines them as noncriminal incidents reports.  Stating that the same record is simultaneously criminal and noncriminal would be manifestly absurd, violating the rules of statutory construction.  However, FOIA does contain a conflict resolution provision: subsection D of § 2.2-3706 provides that in the event of conflict between this section as it relates to requests made under this section and other provisions of law, this section shall control.  It does not appear that there is any equivalent conflicts resolution rule that applies to § 15.2-1722.  Therefore, to the extent there is a conflict between these two statutes, the provisions of § 2.2-3706 would control.    

Legislative history of the definition of noncriminal incidents records and corresponding exemptions.

            Note that the response from the public body in this instance, in asserting the criminal investigative files exemption, also noted that the drafter of § 15.2-1722 may not have realized that suicide is a crime in Virginia.  Turning to legislative history and intent, research revealed that the original version of what is now § 15.2-1722 was first enacted in 1975 and codified as § 15.1-135.1.[7]  The available legislative history included only the bill itself; it does not appear that there were any other versions of or amendments to the bill before enactment, so it is unknown whether the fact that suicide is a common law crime was taken into consideration.  While this provision has been amended several times, the original definition of "noncriminal incidents records" in § 15.1-135.1 stated that the term shall mean compilations of noncriminal occurrences of general interest to law-enforcement agencies, such as missing persons, lost and found property, suicides and accidental deaths.  [Emphasis added.]  While this definition is effectively identical to the current law, note that then § 15.1-135.1 also provided that the records required to be maintained by this section shall be exempt from the provisions of [FOIA].  Thus, as originally passed, all of the records described in what is now § 15.2-1722 were at that time exempted from mandatory disclosure under FOIA in their entirety.  This FOIA exemption was subsequently removed from § 15.2-1722 in 1999 and a similar yet substantively different exemption was enacted instead in subdivision G 1 of § 2.2-3706, which provided in relevant part as follows: 

Records kept by law-enforcement agencies as required by § 15.2-1722 shall be subject to the provisions of this section except:

1. Those portions of noncriminal incident or other investigative reports or materials 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;

Section 2.2-3706 was amended and recodified last year, and former subdivision G 1 of § 2.2-3706 became what is now current subsection B of § 2.2-3706.[8

            The legislative history thus demonstrates that when suicides were originally included in the definition of noncriminal incidents records, they were also fully exempt from disclosure under FOIA, just as criminal investigative files are currently exempt.  The original exemption was removed and the General Assembly instead enacted a more limited exemption that allows only certain portions of noncriminal incidents records to be redacted.  However, the definition including records of suicides as noncriminal incidents records remained unchanged.

Section 15.2-1722 addresses record retention, not access.

            We must also keep in mind that § 15.2-1722 is not an access statute, but instead addresses the requirement for local police chiefs and sheriffs to maintain records and pass them on to their successors in office.[9]  Consider also the language of subsection B of § 15.2-1722 that precedes the definitions: For purposes of this section, the following definitions shall apply.  [Emphasis added.]  Reading this prefatory language together with the maintenance and succession provisions of § 15.2-1722, it is clear that the definitions therein are meant to apply only in regard to police chiefs' and sheriffs' duties to maintain and pass on the records described.  The definitions in § 15.2-1722 were not written as words of limitation to constrain the application of FOIA exemptions.  In the criminal context, this intent is borne out by legislative history in the form of the Report of the Joint Subcommittee Studying FOIA that recommended the changes to these provisions enacted by the General Assembly:

The final issue before the joint subcommittee concerned the clarification of the law relating to access to criminal incident logs, arrest information, and other routine law-enforcement matters. Specifically, § 15.2-1722 directs sheriffs and chiefs of police of every locality to ensure, in addition to other records required by law, the maintenance of adequate personnel, arrest, investigative, reportable incidents, and noncriminal incidents records necessary for the efficient operation of a law-enforcement agency. This section provided that, "Except for information in the custody of law-enforcement officials relative to the identity of any individual other than a juvenile who is arrested and charged, and the status of the charge of arrest, the records required to be maintained by this section shall be exempt from the provisions of Chapter 21 (§ 2.1-340 et seq.) of Title 2.1." This latter provision was in direct conflict with the criminal records portion of [FOIA]. It was agreed that the conflict would be resolved in favor of [FOIA] and that any criminal record exemption should be stated in [FOIA] itself. As a result, a single section in [FOIA] was dedicated to access to criminal records by consolidating all criminal records exemptions there.[10]

As observed by the Joint Subcommittee, subsection B of § 15.2-1722 includes definitions not just of noncriminal incidents records, but also of arrest records, investigative records, personnel records, and reportable incidents records.  How any particular record will be treated for public access purposes will depend on the specific type of record at issue. 

Case precedent: Tull v. Brown is informative but not controlling.

            In the case of Tull v. Brown in 1998,[11] the Virginia Supreme Court had occasion to consider a request for an audio tape of a 911 call concerning the accidental death of a minor that was the subject of a FOIA request.  The Court stated that the sheriff's office "treated the incident as a criminal investigation until an autopsy ruled out any criminal activity as the cause of death."[12]  It was argued that the 911 tape was not a noncriminal incident record subject to the exemption.  The Court rejected this argument, stating as follows:

911 calls frequently concern suicides or accidental deaths, which are two of the specific examples included in Code § 15.1-135.1(B)(5).  Even the 911 call at issue here involved the initially unexplained death of a child.  Thus, we conclude that the 911 Tape falls squarely within the exemption set forth in Code § 15.1-135.1(B)(5).[13]

While the decision in Tull demonstrates the application of the former noncriminal incidents records exemption found in former § 15.1-135.1, the statement about suicides was dicta, as the facts of Tull concerned an accidental death, not a suicide.  Therefore while Tull sheds some light on the application of the former records exemption, Tull is not a controlling precedent regarding access to suicide records under current law.  It does not appear that the Supreme Court has been presented with the issue you have raised concerning access to suicide records.

The use of the term compilations in § 15.2-1722 includes suicide reports.

            To address the argument that § 15.2-1722 defines noncriminal incidents records as compilations rather than as individual records, note that there is no statutory definition of the term compilations.  As stated by the Supreme Court of Virginia, an "undefined term must be given its ordinary meaning, given the context in which it is used. Furthermore, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction, and a statute should never be construed in a way that leads to absurd results."[14]  The American Heritage Dictionary provides two definitions of the word compilation: "1. The act of compiling. 2. Something compiled, as a set of data, a report, or an anthology."[15]  [Emphasis added.]  Additionally, the Court in Tull addressed an argument that the 911 tape at issue in that case was "only raw data and not an orderly report or summary created by assembling raw data, i.e., a compilation."[16]  The Court then held as follows: "Nonetheless, we conclude that the tape is a grouping of electronically gathered information and thus a 'compilation.'"[17]  Therefore both the ordinary meaning of compilation  and prior precedent lead to the conclusion that the suicide report and related records you requested are compilations as contemplated by § 15.2-1722. 

Case precedent: Harmon v. Ewing makes clear other exemptions may apply to records described in § 15.2-1722, not just the noncriminal records exemption.

            Facing an argument that only the noncriminal records exemption would apply to law-enforcement personnel records because they are defined in § 15.2-1722, the Supreme Court of Virginia ruled to the contrary in the case of Harmon v. Ewing.[18]  The Court found that the general personnel records exemption found at subdivision 1 of § 2.2-3705.1 also applies to law-enforcement personnel records.[19]  It was argued before the Court that the general personnel exemption was in conflict with the more specific provision of former subsection G of § 2.2-3706 (now subsection B of the same section) referencing § 15.2-1722, and that the more specific exemption must control due to the conflict resolution provision of § 2.2-3706.  The Court addressed that argument as follows:

No such conflict exists, however. [Former] Code 2.2-3706(G) requires that applicable records shall be subject "to the provisions of this chapter." (Emphasis added.) The provisions of "this chapter," that is, all of VFOIA, include not only the disclosure provisions of VFOIA but also the exclusion provisions of the chapter set forth in [former] Code 2.2-3705.1. In the absence of a conflict, there is no reason to involve [the conflict resolution rule of § 2.2-3706] in the analysis. Personnel records covered by [former] subsection (G) are, like all public personnel records, subject to the protections of Code 2.2-3705.1(1). The request for personnel records and for information found therein was thus appropriately refused by the Department, and this Court reverses that portion of the order requiring their disclosure.[20]

Extrapolating from this precedent, it is clear that just because subsection B of § 2.2-3706 references § 15.2-1722 it does not preclude the application of other exemptions to the records described in § 15.2-1722.   For example, consider the definitions of arrest records and investigative records set forth in § 15.2-1722:

"Arrest records" means a compilation of information, centrally maintained in law-enforcement custody, of any arrest or temporary detention of an individual, including the identity of the person arrested or detained, the nature of the arrest or detention, and the charge, if any.

"Investigative records" means the reports of any systematic inquiries or examinations into criminal or suspected criminal acts which have been committed, are being committed, or are about to be committed.

It would be an absurd result to state that arrest records and investigative records must be handled only under the noncriminal records exemption merely because that exemption references § 15.2-1722, when the definitions themselves refer to criminal activity and there are more specific provisions within FOIA itself that explicitly state how to handle arrest information[21] and criminal investigative files.[22]  Applying Harmon and the rules of statutory construction quoted above, it is clear that the respective provisions of FOIA concerning arrests and criminal investigative files apply to these types of records even though these types of records also fall within definitions in § 15.2-1722.

             These examples of the treatment of personnel records, arrest records and investigative records for access purposes are distinguishable from the question about suicide reports because suicide appears to be the only crime included in the definition of noncriminal incidents records in § 15.2-1722.  Presumably, the facts of any given situation would distinguish the other entries in that definition of noncriminal incidents records from their criminal equivalents (missing persons rather than a kidnapping, lost and found property rather than theft, accidental deaths rather than homicide).  However, there is no noncriminal equivalent to suicide.  Thus there remains an unresolved conflict in that suicide reports fit within the statutory definitions of both criminal investigative files found in § 2.2-3706 and noncriminal incidents records found in § 15.2-1722.

A records custodian may choose to release suicide investigation records in his discretion but is not required to do so.

            While the opposing definitions at issue do not appear to be susceptible to reconciliation, as a practical matter the directives imposed by the two exemptions could be read and implemented harmoniously.  The criminal investigative files exemption provides an exemption for criminal investigative files in their entirety, but the exemption is discretionary.  That discretion allows the custodian of criminal investigative files to choose to disclose those records in whole or in part.  The noncriminal incidents records exemption provides a limited exemption for identifying information of a personal, medical, or financial nature ... where the release of such information would jeopardize the safety or privacy of any person but also recognizes that other exemptions may also apply to the same records, as discussed in Harmon.  Reading these provisions together, a custodian could choose to resolve the apparent dilemma and implement both exemptions by only redacting personal, medical, or financial information to protect safety or privacy, and voluntarily releasing the remainder as a matter of discretion (i.e., treating the records as noncriminal).  However, while treating suicide reports as if they were noncriminal records under subsection B of § 2.2-3706 is an option, it is not required under the current law.  The simple fact is that suicide remains a crime in Virginia.  Therefore records of an investigation into a suicide are in fact criminal investigative files and may be withheld as such.

            The only time the custodian would not have discretion to release would be if release was prohibited by some other law.  The prefatory language of subsection A of § 2.2-3706 states that 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.  The only such prohibition in FOIA itself is subdivision A 3 of § 2.2-3706, which provides that the identity of any individual providing information about a crime or criminal activity under a promise of anonymity shall not be disclosed.  While a thorough review of prohibitions found outside of FOIA is beyond the scope of this opinion, I would note two such prohibitions in the criminal context: (1) § 52-8.3 prohibiting the release of certain records of ongoing criminal investigations conducted by the State Police and (2) § 19.2-389 prohibiting the release of certain criminal history record information.

Neither the criminal investigative files exemption nor the noncriminal records exemption is time limited.

            Turning to your second question, you asked whether a police agency can properly withhold records defined in § 15.2-1722 in perpetuity if the agency has a policy to initially investigate all matters as criminal incidents, but then later determines no crime occurred.    First, considering the "in perpetuity" aspect of your question, note that neither the criminal investigative files exemption nor noncriminal records exemption is limited by time.   Therefore, if either exemption applies, its use is not limited by the age of the records or the amount of time that may have passed since the incident occurred.  As described above, in cases where disclosure is not prohibited by other law, the custodian has discretion to voluntarily release otherwise exempt records at any time.

The nature of an investigation may change over time, and different exemptions may apply to the corresponding records.

            As to the changing nature of an investigation, consider a hypothetical situation where the police receive a report that there is a dead body.  My understanding is that a police department or sheriff's office typically would respond by beginning an investigation to determine whether a crime had occurred.  If one were to request investigative records at that point, they would be subject to the criminal investigative files exemption.  If at some later point it was determined that the person had died from natural causes or purely by accident, and that no criminal activity had occurred, that would not change the nature of the initial investigation.  However, any records of the matter addressing it as a noncriminal incident, after the determination was made that no criminal activity had occurred, would have to be treated as noncriminal records.

Prior opinions that conflict with this opinion are rescinded.

            Your last inquiry asked whether a positive answer to the second question would render moot § 15.2-1722 and all FOIA opinions concerning it.  For the reasons explained above, to the extent Advisory Opinion 10 (2003) conflicts with this opinion and states that only the noncriminal records exemption may apply to suicide reports, and that those records must be released minus the redaction of personal, financial, or medical information, it is hereby rescinded.  Addressing the question more generally, as described above, other records defined in § 15.2-1722 may be subject to exemptions other than subsection B of § 2.2-3706, but which exemptions may apply will depend on the type of records in question.  Finally, as previously discussed, § 15.2-1722 is really a record retention statute, not an access statute.  The retention provisions of § 15.2-1722 are unaffected by this opinion.  This opinion recognizes that there is a statutory conflict in that suicide reports fit within the definition of noncriminal incidents records and criminal investigative files, which may only be resolved by the General Assembly.  In applying the access laws of FOIA, our analysis leads to the conclusion that while there is a statutory conflict in the definitions, the exemption for criminal investigative files may be used to withhold suicide reports in the discretion of the custodian.

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

Sincerely,

Maria J.K. Everett
Executive Director