FOI Advisory Council Opinion AO-08-15
VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
AO-08-15
October 5, 2015
Sterling E. Rives III, Esq.
County Attorney
County of Hanover
Hanover, Virginia
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 letter dated July 14, 2015.
Dear Mr. Rives:
You have asked what options a law enforcement agency has to respond for a request for audio and video records from body-worn cameras and dashboard cameras. You stated your belief that such records, if they are part of criminal investigative files, internal affairs investigation records, or personnel records, would be exempt pursuant to subdivision A 2 a of § 2.2-3706, subdivision A 2 i of § 2.2-3706, or subdivision 1 of § 2.2-3705.1, respectively. Therefore you limit your question specifically to records that are not subject to these exemptions, but that do contain "identifying information of a personal, medical, or financial nature" which would "jeopardize the safety or privacy" of private individuals if released, i.e., noncriminal incidents records subject to subsection B of § 2.2-3706.1 As a hypothetical example, you describe a situation where a law enforcement officer (LEO) makes a traffic stop and activates a body-worn or dashboard camera, and the recording may include the faces and voices of individuals in the vehicle, the make and model of the vehicle, the driver's license of the driver, the vehicle's license plate, and the dialogue with the officer. You note that the same information could be captured at a DUI or driver's license checkpoint. You also assert that such "information is of a personal nature, the mandatory disclosure of which would jeopardize the privacy, and perhaps the safety, of the driver and passengers." You later presented alternative hypotheticals such as responding to a domestic dispute or participating in a crisis intervention team response. Camera recordings of such responses could include images of a private home and its contents, the home address, the faces and voices of those involved in the incident and any others present at the scene, as well as any dialogue with the officer(s) and other responders present. You ask whether such records are exempt in their entirety as noncriminal incidents records pursuant to subsection B of § 2.2-3706, or instead whether such records must be redacted. As a follow-up question, you ask if such records must be redacted, how such redactions should be made. Further background information will be set forth as needed below; due to the length of this opinion, section headers are used below to improve clarity.
FOIA Policy
In analyzing this hypothetical, we must keep in mind the policy statement in subsection B of § 2.2-3700 that provides guidance in interpreting all exemptions from mandatory disclosure under the Virginia Freedom of Information Act (FOIA):
The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute ... all public records shall be available for inspection and copying upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.
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.
These policy provisions are implemented through the procedural requirements for making and responding to a request in § 2.2-3704.
Before considering the application of the noncriminal records exemption and your questions concerning redaction, first note that the type of record in question - whether it is a video or audio recording, still photograph, written report, or otherwise - does not change the legal analysis or the application of exemptions under FOIA. The definition of public record in § 2.2-3701 specifically includes
all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, 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.
This language makes clear that the means of making a record, or the media on which it is recorded, do not affect how the record will be treated under FOIA, as all types of records may be public records regardless of medium. The law distinguishes between different records based on their contents and whether those contents are exempt from mandatory disclosure, not based on how the record was recorded or stored. Therefore the fact that the records in question are recordings made by LEO's using body-worn or dashboard cameras, by itself, does not affect how the records are treated under FOIA. The hypothetical records at issue are clearly public records as they are created by public employees in the transaction of their public business, i.e. LEO's carrying out their duties. Given the hypothetical facts that these recordings may contain a mix of criminal, personnel, and noncriminal incident records, it is these contents that determine how these recordings are to be treated under FOIA.
Noncriminal Records Exemption
For purposes of this opinion, let us first consider a hypothetical where the only exemption at issue is the noncriminal records exemption, subsection B of § 2.2-3706, which reads in full 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. Access to personnel records of persons employed by a law-enforcement agency shall be governed by the provisions of subdivision A 2 i of this section and subdivision 1 of § 2.2-3705.1, as applicable.
As a practical matter, it is my understanding that depending on the policy of the law enforcement agency in question and the technical operation of the camera, what is actually captured on any given recording may vary. For example, it is possible that the camera is turned on when an officer first responds to an incident and turned off when the incident is resolved. In such a situation the record may solely contain footage of a single incident. Alternatively, if a camera is left on for a longer period of time it may capture multiple incidents. Both situations will be considered below.
In analyzing the application of the noncriminal records exemption, note that the exemption uses different language for records maintained by local police and sheriffs as opposed to records maintained by other law enforcement agencies. As quoted above, this exemption in its first clause applies to records required to be maintained by law-enforcement agencies pursuant to § 15.2-1722. Section 15.2-1722 speaks to the duties of local sheriffs and police chiefs to maintain certain records and pass them on to their successors in office. In its second clause, the noncriminal records exemption refers to records maintained by other public bodies engaged in criminal law-enforcement activities, which would apply to other law enforcement agencies such as the Virginia State Police, the Department of Game and Inland Fisheries, the Department of Alcoholic Beverage Control, and others. The first clause refers to § 15.2-1722, whereas the second clause does not, which forces a different interpretation depending on what agency actually has the records in question.
For purposes of this opinion, we presume your hypotheticals do concern recordings made by local police and sheriffs, rather than other LEO's, and therefore fall under the first clause of subsection B of § 2.2-3706, which refers to § 15.2-1722. Subsection B of § 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. In Tull v. Brown, the Supreme Court of Virginia ruled that a 911 tape that was comprised of "a recording on multiple channels of all radio traffic handled through the [Sheriff's] dispatch office in addition to conversations occurring on [the Sheriff's] four telephone lines and conversation between individuals physically in the dispatcher's office" was a compilation that was subject to the noncriminal incidents exemption as it was then codified.2 More recently, in the case of Fitzgerald v. Loudoun County Sheriff's Office,3 the Court considered whether a suicide note could be withheld as a noncriminal incident record. Turning to a dictionary definition in the absence of a statutory definition, the Court found that the term compilation means "the act or action of gathering together written material esp. from various sources" or "something that is the product of the putting together of two or more items."4 The court reasoned that because a suicide note concerned a single incident and not multiple suicides, it could not be a compilation and therefore was not subject to the noncriminal records exemption. Extrapolating from the Court's holdings in Tull and Fitzgerald, it appears that at least for the first clause of the noncriminal records exemption that refers to § 15.2-1722, a record must be a compilation in order for the exemption to apply. Again following the Court's holdings in Tull and Fitzgerald, it appears that in order to be a compilation, a record must be derived from multiple sources or must concern multiple incidents (or both).5
Applying these holdings to your hypothetical facts leads to alternative answers. If the records in question are recordings from a single camera concerning a single incident, then they are not compilations and the noncriminal records exemption does not apply. In that case, the record must be released in its entirety unless some other exemption applies that would allow the record, or portions thereof, to be withheld. On the other hand, if the record in question has been compiled from multiple sources or contains information concerning multiple incidents, then following the Court's holdings in Fitzgerald and Tull, it would be a compilation subject to the noncriminal incidents exemption.
Note that it does not appear that the Supreme Court has had occasion to opine on the second clause of the noncriminal records exemption. That clause does not refer to § 15.2-1722. As a matter of legislative history, the second clause was added because it was observed that following the narrow construction rule for FOIA exemptions, the reference to § 15.2-1722 in former subsection G of § 2.2-3706 limited the application of the noncriminal records exemption to local police and sheriffs only.6 Other law enforcement agencies could not use the exemption as it was written at that time. Senate Bill 1264 (2013) was a recommendation of the FOIA Council made after three years of Criminal Investigative Records Subcommittee meetings.7 SB 1264 rewrote § 2.2-3706 and added the second clause to the noncriminal records exemption as a substantive change in order to "expand to the state law-enforcement agencies the ability to withhold portions of noncriminal incident information."8 The legislative history makes clear that the intent was to allow all law enforcement agencies to use the noncriminal records exemption equally. However, it appears that the result as interpreted under Fitzgerald and Tull may be the opposite. Given that only the first clause of the exemption refers to the limiting language of § 15.2-1722, and the second clause does not, it would follow that the definition of noncriminal incidents records from § 15.2-1722 would not necessarily apply to other law enforcement agencies using the exemption pursuant to the second clause. Presumably if the definition was at issue for state law-enforcement agencies, a court would follow the rule of statutory construction to use the ordinary meaning of the term, rather than the statutory definition referenced for local police and sheriffs.9 Therefore the definition of noncriminal incidents records in § 15.2-1722, and the holdings of Fitzgerald and Tull that are dependent on that definition, would appear to be inapplicable when the noncriminal records exemption is used by law enforcement agencies other than local police and sheriffs. It follows then that the determination of whether a record is a compilation as discussed above would only affect the treatment of records held by local police and sheriffs. Thus the end result appears to be that local police and sheriffs can only use the noncriminal records exemption if the record at issue is a compilation as that term is interpreted under Fitzgerald and Tull, while other law enforcement agencies may use the noncriminal records exemption regardless of whether a record is a compilation. If this is not the intent of the General Assembly, then the legislature may wish to consider language clarifying what is their intent regarding the treatment of noncriminal records.
Redaction of noncriminal records
On the issue of redaction, FOIA provides two relevant responses and procedural requirements covering situations where records may be withheld in whole or in part. Subdivision B 1 of § 2.2-3704 addresses situations where records are entirely withheld:
The requested records are being entirely withheld because their release is prohibited by law or the custodian has exercised his discretion to withhold the records in accordance with this chapter. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
Subdivision B 2 of § 2.2-3704 addresses situations where records are withheld in part, but the remainder is provided:
The requested records are being provided in part and are being withheld in part because the release of part of the records is prohibited by law or the custodian has exercised his discretion to withhold a portion of the records in accordance with this chapter. Such response shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records. When a portion of a requested record is withheld, the 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.
Following these statutory provisions, the advice of this office in the past has been that if a record contains both exempt and non-exempt information, the public body may redact only the exempt information and must produce the remainder of the document.10 Applying this analysis to the facts you present, the initial answer would vary depending on the contents of the video in question. If the entire contents of the video are subject to an exemption, then the entire video may be withheld as set out in subdivision B 1 of § 2.2-3704. On the other hand, if the video contains portions that are subject to an exemption and portions that are not, then only the exempt portions may be withheld and the remainder would have to be released.
However, the Supreme Court of Virginia issued a ruling on September 17 of this year in the case of Department of Corrections v. Surovell11 that holds differently. In that opinion, the Court considered a public safety exemption, subdivision 6 of § 2.2-3705.2, as applied to the Department of Corrections "execution manual." Based on the facts presented in the case, the execution manual appears to contain both exempt and non-exempt portions. In the Court's own words: "The question before us is whether an agency is required to redact an exempt document that may contain non-exempt material. We agree with the Commonwealth that an agency is not required to redact under these circumstances."12 In further analysis comparing this public safety exemption to other public safety exemptions, the Court drew a distinction between exemptions that use the phrases those portions or portions thereof and exemptions which do not, holding that redaction is only required for exemptions that use the phrases those portions or portions thereof. Specifically, the Court wrote that "[h]ad the General Assembly intended to require redaction of documents that fall under the security exemption of subsection (6) of the statute, it would have included the phrase 'those portions' or 'portions thereof.'"13 In this instance, unlike the security exemption at issue in Surovell, the noncriminal incidents exemption at issue here does use the phrase those portions and therefore redaction may be authorized when the exemption applies.
Note that the majority opinion in Surovell did not address subdivision B 2 of § 2.2-3704. The dissent in this case did consider subdivision B 2 of § 2.2-3704 and the dissenting opinion appears to be in accord with prior opinions of the FOIA Council:
The final sentence of Code § 2.2-3704(B)(2) clearly contemplates situations in which a single record contains both exempt and non-exempt information. Read together, these provisions permit a custodian to withhold an entire record only when an exemption categorically excludes a record or exempts all of the information contained within a record. When an exemption applies to only some of the information within a record, Code § 2.2-3704(B)(2) permits the custodian to “delete or excise only that portion” and requires the custodian to “release the remainder of the record.” In sum, Code § 2.2-3704(B) makes disclosure the default response. Consistent with VFOIA’s statement of policy, a public body may not expand a claimed exemption to withhold information that does not otherwise qualify for exclusion.14
While it appears that the dissent in this case agrees with the earlier interpretation this office has given to subdivisions B1 and B2 of § 2.2-3704 as described above, the majority opinion in Surovell is controlling and we must follow it.
Returning to the hypothetical facts you presented, you asserted that some recordings would be exempt as criminal investigative files, internal affairs investigation records, or personnel records. You are correct in that such records would be exempt pursuant to subdivision A 2 a of § 2.2-3706, subdivision A 2 i of § 2.2-3706, and subdivision 1 of § 2.2-3705.1, respectively. The criminal investigative file exemption allows public bodies to withhold [c]riminal 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. The internal affairs records exemption allows public bodies to withhold [r]ecords of (i) background investigations of applicants for law-enforcement agency employment, (ii) administrative investigations relating to allegations of wrongdoing by employees of a law-enforcement agency, and (iii) other administrative investigations conducted by law-enforcement agencies that are made confidential by law. The personnel records exemption allows public bodies to withhold [p]ersonnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof. None of these exemptions uses the phrases those portions or portions thereof. In the past we generally would have advised examining such records to determine whether their contents were entirely exempt or whether an exemption applied only to part of the recording. In the former situation, when the contents of the record are entirely exempt, the entire recording would be exempt. In the latter case, when only some of the contents are exempt, we would have advised redacting only the exempt portion(s) and releasing the remaining pursuant to subdivision B 2 of § 2.2-3704. However, following the decision in Surovell, any record that contains material that is exempt under an exemption that does not use the phrase those portions or portions thereof appears to be exempt in its entirety. Therefore following Surovell, our advice must change regarding records that contain parts that are exempt as criminal investigative files, internal affairs records, or personnel records. If any of these exemptions applies to part of the recording, then the recording is exempt in its entirety, even if it also contains parts that in the past would have been subject to redaction as noncriminal records, or even if the recording contains parts that would not otherwise be subject to any exemption.
However, as described previously, there may be situations where the only records on a given recording are in fact noncriminal in nature, situations where no other exemption would apply. As quoted above, the noncriminal records exemption specifically exempts 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. [Emphasis added.] Following Surovell, therefore, if the only exemption that is applicable is the noncriminal records exemption, then the record would be subject to redaction because the exemption does use the phrase those portions. But in applying the noncriminal records exemption to local police and sheriffs' records one must remember that under Fitzgerald, the record in question must be a compilation as a condition precedent to the application of the exemption.
Given that there is a hypothetical situation where such camera recordings would be subject to redaction, you also asked about how such redactions should be made. You provided your understanding that there is software available that will blur the entire screen of the entire video and modify any voices sufficiently to avoid the disclosure of personal information.15 You indicated it is also possible to go through each video segment and pixilating, blurring or distorting only individual faces, voices, and other identifying information, but that doing so is a very time intensive and expensive undertaking. This is really a question of technology rather than a question of law, and it is not answered by FOIA directly. However, consider that the Supreme Court of Virginia has held that a public body may charge for exclusion review "to assure that those records are responsive, are not exempt from disclosure, and may be disclosed without violating other provisions of law."16 Subdivision F of § 2.2-3704 specifically allows charging up to the actual cost of supplying public records, which may include certain redaction costs.17 Therefore the charges to segregate exempt and non-exempt portions of records - i.e., redaction - may be passed on to the requester as part of the charges for searching for and supplying those records. Next consider the policy statement of FOIA in subsection B of § 2.2-3700 that [a]ll public bodies and their officers and employees shall make reasonable efforts to reach an agreement with a requester concerning the production of the records requested. Following this policy and the Court's holding on charges for exclusion review, if this hypothetical situation should arise where a record may be redacted pursuant to the noncriminal records exemption, I would suggest contacting the requester and arraying the various options available, the costs and time involved in each, and seeking an agreement from the requester regarding the redaction.
Turning to the application of the noncriminal records exemption as discussed above in light of the Surovell decision, we must once again note the distinction between local and state law enforcement agencies. For local police and sheriffs, it appears that there are three distinct possible outcomes. First, assuming the recording in question is a compilation, and only subject to the noncriminal records exemption, then following the holding in Surovell, the public body may redact those portions of noncriminal incident or other noncriminal investigative reports or materials that contain identifying information of a personal, medical, or financial nature ... where the release of such information would jeopardize the safety or privacy of any person. Second, if the recording is a noncriminal record but it is not a compilation as that term is used in Fitzgerald and no other exemption applies, then it must be released in its entirety. Third, if some other exemption applies, and that other exemption does not use the phrase those portions or portions thereof, such as the criminal investigative files, internal affairs, or personnel records exemption, then the recording may be withheld in its entirety.
By contrast, state law enforcement agencies would only have two results under the same hypothetical facts. First, if the record contains portions subject to the noncriminal records exemption, those portions could be redacted regardless of whether the record is a compilation. Second, if another exemption applies that does not use the phrase those portions or portions thereof, the record may be withheld in its entirety.
In conclusion, it appears that following the Supreme Court of Virginia's precedents cited above, whether a record may be withheld in its entirety or only in part now depends not just on the contents of the record, but on the phrasing of the applicable exemption and, in the case of noncriminal law enforcement records, which agency holds the record. Additionally, while the intent of the noncriminal records exemption appears on its face to be to protect privacy and safety in regard to personal, medical, and financial information, in the case of local police and sheriffs this intent may only be achieved if the records at issue are compilations derived from multiple sources or concerning multiple incidents. Noncriminal records in the hands of local law enforcement that are derived from a single source or concern only a single incident and to which no other exemption applies appear to be subject to mandatory disclosure because they are not compilations as interpreted in Fitzgerald. By contrast, it appears that the exemption does exempt such portions of noncriminal records in the hands of state law enforcement agencies. In other words, records whose contents may be identical will be treated differently depending on which agency has the records. If these results are not what was intended by the legislature, then it is up to the General Assembly to change the law.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1. Note that other exemptions might also apply depending on what is actually recorded, but for purposes of this opinion, we are considering only the exemptions considered in the background you provided.
2. Tull v. Brown, 255 Va. 177, 184, 494 S.E.2d 855, 858-859 (1998)(note that the Tull opinion was decided under former Code § 15.1-135).
3. Fitzgerald v. Loudoun County Sheriff's Office (Record No. 141238, decided April 16, 2015)(available at http://www.courts.state.va.us/opinions/opnscvwp/1141238.pdf (last accessed October 5, 2015)).
4. Id. at 11 (quoting Webster's Third New International Dictionary 464 (2002)).
5. Note that prior to Fitzgerald this office had not opined on the term compilation from the definition in § 15.2-1722 as a controlling limitation on the application of the noncriminal records exemption. Previously this office had observed that § 15.2-1722 is a records management and retention statute, not an access statute. See, e.g. Freedom of Information Advisory Opinion 27 (2003)("A review of the history of § 15.2-1722 indicates that this provision is not directly related to access to records. Instead, the provision relates to records management and retention by local law-enforcement officials. It requires sheriffs and chiefs of police to ensure the maintenance of certain records, and requires such individuals to relinquish these records to their successors in office. The provision ensures that local law-enforcement agencies keep adequate records -- it does not speak directly to whether these records must be disseminated or may be withheld." [Emphasis in original.]).
6. See Freedom of Information Advisory Opinion 10 (2009).
7. The Criminal Investigative Records Subcommittee of the FOIA Council met from 2010 through 2012. Its work is documented on the FOIA Council Archives webpage at http://foiacouncil.dls.virginia.gov/Archives.htm.
8. Senate Bill 1264, Summary as Introduced (available at http://lis.virginia.gov/cgi-bin/legp604.exe?131+sum+SB1264, last accessed October 5, 2015).
9. See, e.g., American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 331, 756 S.E.2d 435, 441 (2014)( "When the legislature leaves a term undefined, courts must give the term its ordinary meaning, taking into account the context in which it is used.").
10. Freedom of Information Advisory Opinion 13 (2002).
11. Department of Corrections v. Surovell (Record No. 141780, Sept. 17, 2015)(available at http://www.courts.state.va.us/opinions/opnscvwp/1141780.pdf (last accessed Sept. 18, 2015)).
12. Surovell at 11.
13. Surovell at 12.
14. Surovell at 17 (internal citation referencing Freedom of Information Advisory Opinion 13 (2002) omitted).
15. This type of redaction would appear to be too much as any parts of the record which are not exempt would also be blurred and modified. That result would be contrary to the directive of subdivision B 2 of § 2.2-3704 that [w]hen a portion of a requested record is withheld, the 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.
16. American Tradition Institute v. Rector and Visitors of the University of Virginia, 287 Va. 330, 345, 756 S.E.2d 435, 443 (2014).
17. Freedom of Information Advisory Opinion 02 (2007).
